Written by attorney Todd F. La Neve

Can I still legally drive after a WV DUI arrest?

I am often asked by new clients if they can still drive after they've been arrested for a DUI in West Virginia. The answer is yes.

Under the laws of West Virginia, after an arrest for DUI the arresting officer is required to submit a form, called the Statement of Arresting Officer, to the DMV. When the DMV receives that form, it opens a file on the case and issues a letter advising the driver that the DMV has been informed of the arrest and that, under state code, the person's license is going to be suspended for a specified period of time. The DMV notice also advises of the date that suspension will take effect.

However, the driver has the right to request a hearing on the proposed license suspension and is given 30 days from receipt of the DMV notice to make that hearing request, in writing. The hearing request is made to the state Office of Administrative Hearings, the agency responsible for setting and conducting administrative license suspension hearings and making a decision on whether or not a suspension is imposed.

One key thing that many people don't know is that the DMV sends the license suspension notice to the address on your driver's license. Many people move and don't update their license to reflect their current address (which is actually a misdemeanor offense under WV law) and so the suspension notice never gets to them. In those cases, when the certified letter from DMV is returned to DMV, the suspension goes into effect on the date set forth in the letter and there generally is nothing that can then be done to undo the suspension. In the event that your address on your license is not correct, then you need to contact DMV to advise of the change and request that the suspension notice be sent to the new address.

Once the driver has requested a hearing and the request has been received, a hearing date will be set, but it will often take several months before there is any response from the Office of Administrative Hearings because administrative license hearings are normally booked several months out due to case volume. However, the driver may continue to lawfully drive past the date set out in the original DMV suspension notice because requesting a hearing results in that suspension date being erased. During this time frame, there is no restriction on the driver's ability to operate a motor vehicle other than any restrictions that may have already been in effect prior to the DUI arrest.

So, the takeaway from this guide is that as long as a hearing request is properly filed, the driver may continue to legally operate a motor vehicle after a DUI arrest until there is a final decision issued, after a hearing, in which the right to drive is finally suspended.

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