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DUI Breath Tests in Wheeling

Sean Logue, a renowned Wheeling WV DUI lawyer, understands the potential impact of agreeing to a breath test during a traffic stop. If your blood alcohol concentration (BAC) registers at a dangerous .08 percent, the prosecutor may use this reading as evidence against you in court. It is crucial to note that the law considers driving with a BAC at or above .08 percent illegal, regardless of actual impairment. Consequently, the county or municipality’s attorney will seek prosecution regardless of your true state.

Furthermore, the Bureau of Motor Vehicles (BMV) can administratively suspend your license utilizing your BAC level if it surpasses the maximum allowable limit. West Virginia law explicitly prohibits drivers from operating a vehicle with a BAC of 0.08 percent or higher, and it imposes harsher penalties for BACs exceeding 0.17 percent. Remember, irrespective of how alcohol impacts your walking, talking, or driving abilities, operating a vehicle with a BAC of 0.08 percent or higher is illegal.

When alcohol impairs your ability to drive safely, you may face charges of operating a vehicle impaired (DUI). This stands as a separate offense from the aforementioned “per se” DUI charge. Refusal to take a breath test automatically results in an DUI charge, as it is assumed that consent would be given if alcohol were not impairing you.

Police officers, suspecting impairment, will often request a breath test when stopping drivers. Approved by the West Virginia Department of Health, three machines can be used for this purpose: the BAC Datamaster, Intoxilyzer 5000, and Intoxilyzer 8000. While officers carry portable handheld devices in their cruisers known as PBTs, the results obtained from these devices are not admissible as evidence. However, a prosecutor might try to use them during your initial hearing as an indicator of the officer’s determination of probable cause for arrest.

There are two variations of DUI based on blood alcohol concentration (BAC). The first is for BACs of .80 percent to .17 percent, while the second is for BACs of .17 percent and above. The latter is commonly known as a “high test” or “high tier” DUI, and the charge is referred to as a “per se high test” DUI. Each of these per se charges carries mandatory penalties.

Wheeling’s Breath Test Machines: How They Work

When a suspected drunk driver takes a breath test, they are required to exhale into a specialized machine. This machine contains a chamber that captures the breath and passes an infrared light through it. At the opposite end of the chamber, a sensor detects alcohol molecules. Due to the predictable absorption rate of infrared radiation by alcohol, scientists and breath test machine manufacturers can accurately measure the blood alcohol content of the breath.

Breath Test Rules, Regulations, and Laws

In West Virginia, breath tests are regulated under Section 4511.19(D)(1) of the Revised Code. This section outlines the statutes, regulations, and rules that govern the administration of breath tests and the admissibility of breath test evidence in trials. According to the law, breath tests must be conducted within three hours of the initial police stop; otherwise, the evidence collected becomes inadmissible. The West Virginia Department of Health monitors the maintenance, inspection, and calibration of breath test machines, issuing licenses and permits to authorized individuals responsible for operating and maintaining these machines. While Wheeling WV criminal attorneys can challenge the accuracy of individual test results, they cannot question the validity and reliability of the machines themselves.

Remember, a failed breath test does not necessarily mean all hope is lost. If you need assistance with an DUI defense, contact a Wheeling WV criminal lawyer, Sean Logue, at (304) 381-3656.

Client Reviews

I had hired Mr. Logue a few years ago for my gf at the time for charges she had gotten before I had met her, for prostitution. Big mistake to date her and pay for her lawyer as we didn’t work out but Mr. Logue far exceeded expectations. He got nearly all charges in 2 separate cases dropped for her...


I was arrested on a felony 3 charge looking at at least up to 2 years in prison. County District Attorney didn't want to negotiate. After a lot of hard work, Sean was able to plead the case all the way down to just 90 days jail with a work release. Better deal than I realistically could have hoped...

Former Client

Mr. Logue took our son’s cases on very short notice (the first lawyer we hired wasn’t getting anywhere with either of the prosecutors and had actually turned one of the cases over to the court-appointed attorney). We hired Mr. Logue to go to trial if needed, but he worked with both prosecutors and...

Former Client

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