West Virginia Sobriety Checkpoints: No Statute, and a 10-Day Deadline to Challenge One

Checkpoints in West Virginia rest on court decisions and on law-enforcement operational guidelines, not on a statute. A full-text search of the West Virginia Code returns exactly one section containing the word checkpoint, and it is §17G-1-2, the traffic-stop data collection provision of the Racial Profiling Data Collection Act, which lists "a checkpoint for driving under the influence, license, registration or seat belts" among the stops for which an officer had to prepare a report. That chapter no longer operates: §17G-2-3(d) provides that collection of the data terminated on December 31, 2008 and that the provisions of the chapter are of no force or effect after June 30, 2009. The plural checkpoints, the words roadblock and road block, and the phrases sobriety checkpoint and safety checkpoint all return no section of the Code at all.

What exists instead is a procedural rule that presupposes checkpoints and tells a driver how to attack one. Title 91, Series 1 of the Code of State Rules, the Division of Motor Vehicles rule on Administrative Due Process, was filed on April 3, 2023 and took effect on May 1, 2023, with a sunset date of August 1, 2028. Its Rule 3.4 is headed Challenge of Secondary Chemical Test and Sobriety Checkpoint. Rule 3.4.1 sets two separate notice duties. A person who intends to challenge the results of a secondary chemical test of blood, breath or urine, or to cross-examine whoever administered the test or performed the analysis, must notify the Commissioner in writing at least ten days before the hearing date. A person who intends to challenge official compliance with and adherence to sobriety checkpoint operational guidelines must give the same written notice, in person or by mail to the Commissioner in Charleston, at least ten days before the hearing date, and the rule finishes the sentence with the consequence: or those matters cannot be challenged.

That is an unusually hard sanction for a procedural rule, and it is not softened the way the chemical-test notice is. Rule 3.4.2 provides that where the notice about the secondary chemical test is missed, the test results are admissible as though the driver and the Commissioner had stipulated to admissibility, and Rule 3.4.3 forbids the Commissioner from invoking that consequence against an unrepresented person unless the hearing notice also explained what failing to give notice would cost. Neither of those cushions is written for the checkpoint notice. Rule 3.5.3 repeats the duty from the other direction: a person wishing to challenge the results or operation of a secondary chemical test or the legality of a sobriety checkpoint must notify the Commissioner as prescribed in Subsection 3.4.

The surrounding deadlines are short. Under Rule 3.5.1 a hearing must be requested in writing, electronically, in person or by registered or certified mail within fifteen days from the date the order was entered, unless a statute prescribes a different period, and Rule 3.5.2 requires the request to describe the order and state the grounds on which it should be vacated or modified or the hearing will not be granted. Rule 3.5.4 provides that untimely hearing requests shall not be granted, and defines untimely as made after that fifteen-day window or before the Order of Revocation, Suspension or Disqualification has issued. Rule 3.3.2 requires an order issued under W. Va. Code §17E-1-13, the commercial driver disqualification section, to carry a statement that the person must notify the Commissioner of an intent to challenge the secondary chemical test or the legality of a sobriety checkpoint.

The hearing that the rule governs is narrower than it once was. The 2020 amendments to W. Va. Code §17C-5A-1, effective July 1, 2020, changed the arresting officer's report into a filing that goes to the Commissioner within 48 hours and is then forwarded by the Commissioner to the court with jurisdiction over the criminal charge, rather than the trigger for an administrative revocation on the arrest itself. A refusal to submit to the secondary test remains its own administrative track under §17C-5-7.

The testing rules that follow a checkpoint stop are statutory and worth knowing separately. Section 17C-5-4(a) provides that anyone who drives in West Virginia is considered to have consented, by the act of driving, to a preliminary breath analysis and a secondary chemical test of blood or breath. A preliminary breath analysis may be administered under §17C-5-4(b) where the officer has reasonable cause to believe a §17C-5-2 offence has been committed. The secondary test is incidental to a lawful arrest and is administered at the direction of the arresting officer having probable cause, and §17C-5-4(c) adds a proviso that absent the person's written consent a secondary test of blood may not be performed without a warrant signed by a magistrate or circuit judge. Section 17C-5-4(d) provides that refusing a blood test only may not result in revocation. Under §17C-5-7(b) a refusal to submit to the secondary test is not final until fifteen minutes have passed, and during those fifteen minutes the arresting officers must permit the person to revoke the refusal and must provide an opportunity to take the test on request.

1 does not produce a fine; it produces silence. The rule says in terms that a person who does not give written notice of an intent to challenge official compliance with and adherence to sobriety checkpoint operational guidelines cannot challenge those matters, and unlike the chemical-test notice there is no stated exception for an unrepresented person. 4 says untimely requests shall not be granted, and a request made before the Order of Revocation, Suspension or Disqualification issues is also untimely. On the criminal side, refusing the secondary chemical test after a lawful arrest is dealt with by W.

Va. Code §17C-5-7: the officer must file a signed statement with the Commissioner and with the court within 48 hours setting out that he or she had probable cause, that the person was lawfully arrested, that the person refused, and that the warnings required by §17C-5-4(e) were given. The statement carries a warning on its face that willfully signing false information is false swearing and a misdemeanor. Because the checkpoint challenge is directed at operational guidelines rather than at a statute, the argument a driver makes is about whether the stop complied with the guidelines the agency was operating under, which is precisely why the rule makes the driver flag it in advance.