In June of 2010, the West Virginia legislature enacted 17C-5-2b, an additional component to our 17C-5-2 DUI statute. It is commonly referred to as the “Deferral Program.” The essence of the program is that a citizen arrested for 1st offense DUI, with no prior DUI convictions, license related suspensions, or maintaining of a CDL license, and who has an alleged BAC < .15, can request, within 30 days of arrest, to participate in the Deferral Program. (*Prior DUINewsBlog.org posts by The Wagner Law Firm have discussed in detail the current acceptance into the program of citizens who otherwise qaulify, but who also refuse the breath machine)
The program calls for the citizen to enter a conditional guilty plea to the DUI charge in the magistrate county court of arrest. The court holds the conditional guilty plea without entering while the citizen then concedes the pending WV license administrative hearing, therein agreeing volutarily to 15 days no driving whatsoever, followed by 165 days of the Interlock installation around her vehicle. Upon successful completion, the citizen returns to the criminal court whereupon the court dismisses the DUI charge against the citizen. One year from that date, assuming no further arrests for DUI, the citizen then moves to have the record of her arrest expunged with fingerprint cards destroyed. In essence, restoring the citizen to the status she held the day prior to her arrest.
In the weeks post enactment of this 2010 piece of legislation, citizens licensed in other states, who on the face of the statute clearly were qualified, were being denied acceptance into the program for the singular reason that the citizen maintained a driver’s license in another state.
To The Wagner Law Firm, this was a slam dunk equal protection appeal scenario. So, we embarked on the appeal road to right this ship for our out of state licensee clients. In a very quick turn around from appeal submission, the 23rd Judicial Circuit of West Virginia, then Judge Gina Groh (now U.S. Federal Judge for Nothern District of WV) granted our appeal in very clear and concise language encompassing of equal protection. I of course made sure that the legal divison of the WV DMV promptly received a copy of this Court Order.
Accordingly, all citizens arrested for DUI 1st offesne anywhere in West Virgnia, -thanks to the work of The Wagner Law Firm- are now affored entry into the Deferral Program. Procedurally it all works the exact same, with the lone difference being the home state Life Safer Interlock provider installs and monitors all as opposed to the WV branch of Life Safer Interlock. Noting that Life Safer is the national Interlock company that is lcoated throughout all 50 U.S. states. Counsel simply corresponds with the appropriate Life Safer contact in the state and locale of need and from there the coordination of the hook-up and eventual deinstall process, while sharing documented copies of all with the controling government authority in WV.
Thus, in closing, please be advised that any West Virginia attorney handling a DUI case who advises you that on a 1st offense -whether you have a BAC alleged to have been < .15 or that of a refusal of the breath machine- that you do not qualify for the deferral program simply because you maintain an out of state driver’s license is 100% wrong.
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