If you have been arrested for DUI in West Virginia, you have the right to demand that a blood, breath, or urine test be taken within the first two hours of the arrest. If the test happens, you also have the right to inspect the specimen independently of any tests performed by the police. As the state’s Supreme Court recently explained, the cops’ failure to make the sample available is a violation of your right to due process under the law.

Ms. Divita was charged with driving under the influence of controlled substances, and her license was revoked, after an incident in which she was pulled over while driving on I-64 in Kanawha County. Sgt. O’Bryan, the officer who initiated the traffic stop, later said that he observed Divita’s car swerving and saw her almost hit a guardrail.

Divita, however, said she dropped her cell phone while steering the car, which caused her to swerve. O’Bryan ordered Divita to get out of the car after he noticed a plastic baggie with pills in it as Divita was searching her purse for her driver’s license.

He said that her speech was slurred and that she seemed confused. O’Bryan placed Divita under arrest after searching her purse and finding 13 alprazolam pills and 15 oxycodone pills.

Divita later failed two field sobriety tests, according to O’Bryan. She also agreed to give a blood sample, which was sent to the West Virginia State Police Lab and tested for alcohol only.

O’Bryan said he eventually destroyed the sample, which tested negative, after the conclusion of the criminal case against Divita, but before the administrative proceedings related to the license revocation. A hearing officer later found that the evidence was sufficient to show that Divita was driving while impaired.

A circuit court reversed the decision, however, saying that O’Bryan wrongly allowed the evidence to spoil by failing to have it tested for controlled substances and then having it destroyed. The Supreme Court agreed. The state’s highest court said Divita was denied due process under the law because she didn’t have the opportunity to have the blood sample tested independently before it was destroyed.

“Here, the investigating officer’s actions certainly served as an impediment to respondent’s ability to obtain the results of her blood sample,” the Court said. “The officer did not simply fail to submit the blood sample to the lab, but after the submission of the sample, requested that the sample be returned without toxicology analysis and then had the sample destroyed. Respondent was not only unable to receive the results of any toxicological analysis from the West Virginia State Police Lab, but was also prevented from securing her own independent test of the blood sample.”

As a result, the Court affirmed the circuit court’s decision.

This case is a good reminder of just one of the legal protections available to a person charged with a DUI or another crime. If you or a loved one has been charged with driving under the influence, the West Virginia criminal defense lawyers at the Wolfe Law Firm can help.

Our firm has been serving clients throughout the state for more than 25 years. Call us at 1-877-637-5756 or contact us online for a free consultation.