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wiseguy

Member
State of West Virginia.

My wife was arrested for DUI but refused twice to take the breathalyzer. The police officer advised her of the Implied Consent law in our state. He stated that if she refused the secondary chemical test that her license would be revoked for 45 days. This is a separate issue from the DUI charge.

The paper she signed reads:
If you refuse to submit to this test, your privilege to operate a motor vehicle in this state will be revoked for a period of at least 45 days and up to life.
About two weeks later a letter arrives from the DMV stating that her license has been revoked for a period of one year.

The letter reads:
you were given a written statement advising you that your license to operate a motor vehicle in this state would be revoked for a period of at least one year and up to life if you refused to submit to the secondary chemical test.
If she would have known that her license would be revoked for a year instead of 45 days she would have taken the test. A first offense DUI conviction carries only a six month license. suspension.

Is there anything she can do about being given this misinformation?
 


CdwJava

Senior Member
She can hire an attorney and fight with the DMV. I doubt she will win, but if it is worth a few thousand dollars to her, then she can give it a whirl.

Hopefully the 12 months she will be a pedestrian will give her time to consider her actions and vow not to drink and drive again.
 

wiseguy

Member
She can hire an attorney and fight with the DMV. I doubt she will win, but if it is worth a few thousand dollars to her, then she can give it a whirl.

Hopefully the 12 months she will be a pedestrian will give her time to consider her actions and vow not to drink and drive again.
I came here for legal advice not ethics or moral commentary. If you have no legal advice to offer please butt out.

She was not intoxicated. She had one beer that she did not even finish. It was right before we left and she did not want to chance a false reading on the breathalyzer. It has happened to others around here.
 

OHRoadwarrior

Senior Member
If you refuse to submit to this test, your privilege to operate a motor vehicle in this state will be revoked for a period of at least 45 days and up to life.
He stated that if she refused the secondary chemical test that her license would be revoked for 45 days.
There are more than 45 days in a year. The officer did not lie. Does she not comprehend that the lower threshold was 45 days and life was the upper threshold?
 

ajkroy

Member
She was not intoxicated. She had one beer that she did not even finish. It was right before we left and she did not want to chance a false reading on the breathalyzer. It has happened to others around here.
See, I don't understand this line of thinking. Unless she knew she was going to do blood tests later, there was absolutely no way to exculpate her. If she had truly only had part of one beer, the breathalyzer would have been evidence of that.

OP, were you with your wife at the time?
 

wiseguy

Member
There are more than 45 days in a year. The officer did not lie. Does she not comprehend that the lower threshold was 45 days and life was the upper threshold?
Yes he did lie. Orally he stated that she would lose her license for 45 days (a lie). On the paper she signed it said the "lower threshold" was 45 days where in fact it is one year (another lie). The facts were misrepresented.
 

wiseguy

Member
See, I don't understand this line of thinking. Unless she knew she was going to do blood tests later, there was absolutely no way to exculpate her. If she had truly only had part of one beer, the breathalyzer would have been evidence of that.

OP, were you with your wife at the time?
Of course she didn't know that she was going to take a breathalyzer. It was after she was pulled over and asked to take it that she decided thar she did not want to take the chance of a false reading. And don't be so sure that a breathalyzer will exonerate you if you had only a few drinks of beer. These things give false positives way to often. Yes, I was with her the whole time.
 

CdwJava

Senior Member
I reiterate, she can hire an attorney and enter into a legal battle with the DMV. You do not have to like the advice, but that's about it. There is no magic pill to be had here.

If she truly had only one beer, then she almost certainly would not have been impaired and arrested. As I previously mentioned, I hope she has time to reconsider her decision making on that night.

Oh, and the only people I have heard in my 20 years in law enforcement claim to refuse to take a test because they feared a false reading were people who were impaired. Logically, that does not mean that everyone who does so IS impaired, but the anecdotal evidence is telling.

So, she can muster her dollars and hire an attorney to argue with the DMV, or, purchase a bus pass.
 

wiseguy

Member
I reiterate, she can hire an attorney and enter into a legal battle with the DMV. You do not have to like the advice, but that's about it. There is no magic pill to be had here.

If she truly had only one beer, then she almost certainly would not have been impaired and arrested. As I previously mentioned, I hope she has time to reconsider her decision making on that night.

Oh, and the only people I have heard in my 20 years in law enforcement claim to refuse to take a test because they feared a false reading were people who were impaired. Logically, that does not mean that everyone who does so IS impaired, but the anecdotal evidence is telling.

So, she can muster her dollars and hire an attorney to argue with the DMV, or, purchase a bus pass.
Everybody knows that they could get a lawyer. That's not legal advice just because it has the word lawyer in the sentence.

Our DUI attorney assures us that he will get the DUI charges dropped. There is no evidence. She was arrested because the cop was a jerk and was pissed off about her refusing the test. He also lied about the circumstances that led to him pulling us over in the first place. We have eye witnesses.

The DMV and Implied Consent is a separate issue. Their decision is based on the report from the police officer which was not completely accurate and truthful.
 

CdwJava

Senior Member
Everybody knows that they could get a lawyer. That's not legal advice just because it has the word lawyer in the sentence.
Technically, no one hear can offer "legal advice." What they can offer is opinion based upon experience, training, or perception.

Our DUI attorney assures us that he will get the DUI charges dropped. There is no evidence.
Other than the officer's observations. Maybe he can. But, your question was about the DMV's action for suspending her license for the test refusal, not the strength of the DUI case. You glossed over those details so no opinion could possibly be rendered on the strength of the state's case on the DUI.

She's lucky that the agency apparently does not compel blood draws on refusals. had that6 happened they would have stronger evidence of her inebriation AND she would be facing a suspension as a result of her refusal.

She was arrested because the cop was a jerk and was pissed off about her refusing the test.
She could not have been given the test unless she was arrested. I suspect she was technically arrested before the refusal. But, I don't have the reports and was not present.

An arrest requires only probable cause - not absolute certainty. And a test pursuant to implied consent laws can only be made after the arrest. Ergo, if she refused the test she was already under arrest or told she was going to be arrested and then asked what test she preferred.

He also lied about the circumstances that led to him pulling us over in the first place. We have eye witnesses.
Okay. Since you have not stated what these are, there's not much to say about it.

Understand that different perceptions or interpretations of perceptions does not make a lie. He may have seen things differently than you all. And, if all of you had been drinking, that can alter things as well.

The DMV and Implied Consent is a separate issue. Their decision is based on the report from the police officer which was not completely accurate and truthful.
Which brings us all the way back to my original and correct comment: She needs to retain legal counsel and take the issue up with the DMV as the suspension is apparently THEIR decision based upon the refusal. Now, if these suspensions are made by the court for a refusal in WV then she may have to address that with the court. In most states it is a DMV issue and the criminal courts have no real say in the matter.

It is never a good idea to drink and drive. Hopefully it will not happen again no matter the outcome here.
 

HighwayMan

Super Secret Senior Member
Yes he did lie. Orally he stated that she would lose her license for 45 days (a lie). On the paper she signed it said the "lower threshold" was 45 days where in fact it is one year (another lie). The facts were misrepresented.
Maybe it was recently changed and that information was not disseminated state-wide at the time of arrest.
 

CdwJava

Senior Member
So then what's the issue?
His issue appears to be the one year suspension when his GF was told it would be for 45 days. More than likely the officer will assert that he said it would be for AT LEAST 45 days, or something to that effect. And if he did what we do out here and read the admonishment from the DMV prepared form, then all is well and good in suspension-land.
 

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