In West Virginia, drunk driving is charged as "Driving Under the Influence" (DUI) under West Virginia Code §17C-5-2. The standard per se limit is a blood alcohol concentration (BAC) of 0.08%, but commercial drivers are held to 0.04% and drivers under 21 to 0.02%. If you refuse a breath or blood test after a DUI arrest, West Virginia's implied consent law triggers an automatic license revocation, and to contest that refusal you must request a "refusal review hearing" within 30 days of your first court appearance or you lose the right to challenge it. That 30-day window is the single most time-critical deadline in this process — do not let it pass.
What DUI Is Called in West Virginia, and the BAC Limits
West Virginia calls the offense Driving Under the Influence (DUI), defined at W. Va. Code §17C-5-2. The core BAC thresholds are:
0.08% or more — the standard per se limit for drivers 21 and older (this 0.08% threshold is the national standard used in every state).
0.04% or more — the limit for anyone operating a commercial motor vehicle under a commercial driver's license (CDL). If a CDL applies to you, confirm the specifics with the DMV.
0.02% or more — West Virginia's underage ("zero tolerance") limit for drivers under 21. The number is 0.02%, not 0.00%: a driver under 21 with a BAC from 0.02% up to 0.08% faces an underage-DUI charge, while 0.08% or more is charged the same as for an adult.
0.15% or more — West Virginia's enhanced ("aggravated" or high-BAC) tier, which carries a longer minimum revocation and reduced eligibility for early-reinstatement options compared with a standard first offense.
The 21-and-over drinking age is set by federal highway-funding law and applies nationwide; it is not West Virginia-specific.
Implied Consent and Refusing a Breath or Blood Test
By driving in West Virginia, you're deemed to have consented to a secondary chemical test (breath or blood) if an officer has reasonable grounds to believe you were driving under the influence. Refusing that test doesn't avoid consequences — it triggers its own license revocation, separate from any DUI conviction, and your refusal can also be used as evidence against you in the criminal case.
Under W. Va. Code §17C-5-7a, the revocation periods for refusal are:
First refusal: one year, or a reduced 45-day revocation followed by one year of mandatory participation in the state's Motor Vehicle Alcohol Test and Lock (ignition interlock) Program.
Second refusal: 10 years, with the possibility of reissuance after five years.
Third or subsequent refusal: revocation for life.
The critical deadline: if you refuse testing, you (or your attorney) must request a refusal review hearing within 30 days of your first appearance in court on the underlying charge. If you miss that window, the court's finding of refusal — and the license revocation the DMV Commissioner enters based on it — becomes final with no further chance to contest it. Confirm the exact procedure and current deadline with the West Virginia Division of Motor Vehicles (DMV) or the court handling your case, since refusal-hearing procedures have been amended by the Legislature in recent years.
How License Suspension Actually Works in West Virginia
West Virginia's system is unusual compared with many states, and this matters for how you plan your response. West Virginia eliminated its old pre-conviction administrative license revocation process (which had run through a separate Office of Administrative Hearings) effective July 1, 2020. Today, for a standard BAC-over-the-limit arrest (not a refusal), license revocation is generally triggered by a conviction under §17C-5-2, not by a separate short-fuse administrative suspension the moment you're arrested. The court clerk reports the conviction to the DMV Commissioner, who then enters the revocation order.
Refusal cases are the exception: because refusal carries its own court-adjudicated finding (separate from guilt or innocence on the DUI charge itself), that 30-day refusal-review-hearing deadline described above is the real time-critical trigger you need to protect. Because West Virginia's procedures in this area have changed once already and could change again, confirm current practice directly with the West Virginia DMV or a West Virginia criminal defense attorney as soon as possible after any arrest — do not assume the rules described here are still current by the time you read this.
First-Offense Penalties
For a standard first-offense DUI (BAC under 0.15%, no aggravating factors) under §17C-5-2, the statute sets out a penalty range that generally includes:
License revocation: six months (one year if your BAC was 0.15% or higher), or participation in the Test and Lock ignition-interlock program after a short mandatory hard revocation (about 15 days) as an alternative to the full suspension.
Ignition interlock: not automatically required for every first offender to drive at all, but required if you want restricted/interlock driving privileges during your revocation period, and required outright for aggravated (0.15%+) and refusal cases.
Jail and fines: under §17C-5-2, a standard first offense is punishable by up to six months in jail — with a mandatory minimum of at least 24 hours of actual confinement — and a fine of $200 to $1,000. The exact sentence depends on your specific facts (BAC level, prior record, whether a minor was in the vehicle, etc.), and because these figures are subject to legislative amendment, confirm the current numbers in §17C-5-2 or with a West Virginia attorney.
Having an unemancipated minor under age 16 in the vehicle at the time of the offense is a separate aggravating factor that increases minimum jail exposure, even on a first offense.
Lookback (Washout) Period
West Virginia counts a prior DUI as a "prior" for enhancement purposes if it occurred within the 10-year period immediately preceding the date of arrest on the current charge, per §17C-5-2. A DUI from more than 10 years earlier generally will not enhance a new charge to second- or third-offense penalties, but it can still be relevant to sentencing and to how a prosecutor or judge views your record.
When DUI Becomes a Felony in West Virginia
A DUI is elevated to a felony in West Virginia when:
Third or subsequent offense: a conviction where you have two or more prior DUI convictions within the 10-year lookback is a felony, carrying a prison sentence (rather than jail), a larger fine, and lifetime license revocation (subject to the Test and Lock alternative).
Death or serious bodily injury: causing a death or serious bodily injury to another person while driving under the influence is charged as a felony, independent of how many prior offenses you have.
Felony DUI carries consequences far beyond a standard misdemeanor case, including a lasting criminal record and, potentially, years in prison. If you're facing anything beyond a straightforward first offense, get a West Virginia criminal defense attorney involved immediately.
What to Do After a DUI Arrest in West Virginia
Note your court date and any refusal-hearing deadline immediately. If you refused testing, calendar the 30-day deadline from your first court appearance to request a refusal review hearing — missing it forfeits your chance to contest the refusal finding.
Get your paperwork together. Keep the citation, any DMV/court notices, and the arresting agency's report information in one place.
Contact the West Virginia DMV to confirm the current status of your license, any revocation that has been entered, and whether you're eligible for the Motor Vehicle Alcohol Test and Lock (ignition interlock) Program to maintain limited driving privileges.
Consult a West Virginia criminal defense attorney as soon as possible — ideally before your first court date — especially if this is not your first offense, if anyone was injured, or if a minor under 16 was in the vehicle.
Do not drive on a revoked license while your case is pending; doing so typically creates a new, separate criminal charge on top of the DUI.
Attend every court date. Missing a hearing can result in a warrant and additional license consequences on top of the DUI case itself.
This article is general legal information about West Virginia law, not legal advice for your specific situation; consult a licensed West Virginia attorney or the West Virginia DMV about your case.
Frequently asked questions
What is a DUI called in West Virginia?
West Virginia calls it "Driving Under the Influence" (DUI), defined in West Virginia Code §17C-5-2.
What BAC is illegal in West Virginia?
0.08% or more for drivers 21 and older (the national standard), 0.04% or more for commercial driver's license holders, and 0.02% or more for drivers under 21. A BAC of 0.15% or more triggers West Virginia's enhanced, aggravated-DUI penalty tier.
What happens if I refuse a breathalyzer in West Virginia?
Refusal triggers an automatic license revocation — one year for a first refusal (or a reduced 45-day revocation plus a year of mandatory ignition-interlock participation), 10 years for a second refusal, and life for a third. You must request a refusal review hearing within 30 days of your first court appearance to contest it, and the refusal itself can be used as evidence against you.
How long does a DUI stay on my record for sentencing purposes in West Virginia?
West Virginia uses a 10-year lookback: a prior DUI counts toward second- or third-offense enhancement if it occurred within the 10 years immediately preceding your current arrest date.
When is a DUI a felony in West Virginia?
A DUI becomes a felony when it's a third or subsequent offense within the 10-year lookback period, or when the impaired driving causes death or serious bodily injury to another person.
This article is general legal information, not legal advice, and may not reflect the most current law or the law in your jurisdiction. Laws vary by state and change over time. For advice about your specific situation, consult a licensed attorney.
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