What happens if I refuse a Breathalyzer test?

In accordance with the laws of the state, West Virginia residents are well within their rights to refuse breath tests if pulled over for suspected impaired driving. It is not uncommon to wonder, though, what happens after a Breathalyzer test is refused? There are actually very specific instructions regarding what law enforcement officers are supposed to do in such situations.

After a person has refused chemical testing, officers are prohibited from performing any such tests. There are certain stipulations to this, however. Before a refusal, an oral and a written warning must be provided regarding license suspension and revocation policies. Also, the officer must wait 15 minutes after the initial refusal, allowing the accused to reconsider testing.

After a refusal has been accepted, the arresting officer is given 48 hours to file paperwork with the Commissioner of Motor Vehicles. There are several pieces of information that are required to be included in this report. These include statements of:

  • Probable cause
  • Accused's arrest
  • Accused's refusal to test
  • That written notice of license suspension and revocation was provided

After a person refuses a Breathalyzer test in West Virginia, his or her license will be suspended for a minimum of 45 days. This can be longer, depending on the details of the situation. It is possible to fight this suspension and any criminal charges in court and, furthermore, at an administrative level. In doing so, it will be important to question whether the arresting officer followed protocol for testing refusal. If any procedural errors can be documented, this information can prove valuable to the accused in court.

Source: legis.state.wv.us, "WV Code Chapter 17C-5-7. Refusal to submit to tests; revocation of license or privilege; consent not withdrawn if person arrested is incapable of refusal; hearing.", Accessed on Aug. 26, 2015

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