From today’s Register-Herald:

Note: The latter half of this article contains a very informative recitation of what the DUI laws are in the State of West Virginia. West Virginia is one of the states that allow a conviction if the BAC result is .08 or greater (solely based on the BAC result). Other states, such as North Carolina focus more on whether or not the person was intoxicated, regardless of what the BAC reading was. However, these states do use the BAC reading (from the intoxilyzer machine, not the field preliminary breath tests) as evidence that the person was intoxicated. Guilt is shown mostly by the officer’s testimony regarding the defendant’s performance in the field sobriety tests, and regarding the quality of driving that took place immediately prior to the stop. Having formerly prosecuted DUI’s (DWI’s) in Raleigh North Carolina, I have witnessed defendant’s acquitted despite having BAC results of .12 and .13 – well above the legal limit of .08 – because the judge was convinced the person was not “impaired” despite the high BAC reading. – John H. Bryan, West Virginia criminal defense attorney.

See UPDATE here.

Bus accident, arrest throw the spotlight on DUI laws

By Christian Giggenbach
Register-Herald Reporter

A school bus accident in Monroe County last week and the subsequent arrest of the driver on a DUI charge has thrown a spotlight on the state’s drunken driving laws.

Almost everyone knows West Virginia’s legal limit for driving under the influence is a blood-alcohol content of .08.

But few understand exactly what .08 means legally and why a person can be charged and convicted for drunken driving with BAC levels that are much lower.

State Police charged Clyde Watson Jr., 62, of Union, with DUI while transporting minors after the bus he was driving crashed down a 120-foot ravine last Tuesday. Eleven children were on the bus, but no one was injured.

Police said Watson had a .022 level of alcohol, well below the .08 limit. Watson told police he had taken Nyquil, an over-the-counter cold medicine that contains alcohol, the night before, and Monroe Prosecutor Rod Mohler said later in the week “there are some issues that need to be explored regarding whether (Watson) might be a diabetic and how alcohol of any amount would affect his system and be shown on a breath test.” Watson told police he felt “funny” just before the accident.

Monroe school officials said Watson previously had a spotless 14-year safety record.

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The Register-Herald asked Charleston defense attorney Carter Zerbe to explain the state’s DUI laws, which are some of the strictest in the country.

“In West Virginia, it doesn’t matter if you are intoxicated or not,” said Zerbe, who has been defending DUI clients for 20 years. “A person could have a BAC level of .08 and not be drunk, but if it’s at that level, or above, you are guilty of a crime regardless.”

Zerbe said the law is known as the “per se” law and a person can be convicted of DUI even if the person shows no outward signs of intoxication.

“Another misconception is that you have to have a scientific test in order to be convicted of DUI,” Zerbe said. “If a police officer testifies that a defendant had slurred speech, or if the person staggers while being videotaped, that can sometimes be sufficient evidence for a conviction, even when there were no blood tests or breath tests.”

Zerbe said police must first have a “reasonable suspicion” of drunken driving before pulling a car over.

Many times, a burned-out tail light or expired license plate gives an officer probable cause to stop someone, he said.

If the officer smells alcohol or observes symptoms of intoxication, the officer can request that the driver perform three field sobriety tests, which include a vision test and walking tests.

“If necessary, then the officer can administer a preliminary breath test, where a person blows into a tube,” Zerbe said.

That test is not admissible as evidence in a trial, but can give the officer probable cause to ask for a blood test or a secondary breath test, both of which can be used as evidence.

But what if your BAC level is below .08? Can you still be charged and convicted of drunken driving?

Yes, because it’s not the amount of alcohol in your system that matters, but rather how much that alcohol impairs your ability to drive, Zerbe said.

Remember, the .08 standard is used to “presume” someone is drunk; below .08, alcohol can still affect some people’s ability to drive, he said.

“You can be convicted if alcohol impairs your ability to drive,” Zerbe said, “even though your BAC is below .08.”