What Happens When You Refuse A Breathalyzer in NC?
May 3rd, 2020
DWI Refusals in North Carolina
North Carolina has very strict laws when it comes to Driving While Impaired (DWI) and DWI refusals. As a driver on North Carolina roads, you need to be aware of some of the laws that guide road usage so you can know your rights. North Carolina has an “implied consent” law. This law requires that all drivers who are arrested for DWI submit to chemical testing IE breathalyzers. This testing determines the blood alcohol concentration (BAC) or level of drugs in their blood. It states that:
“Any person who drives a vehicle on a highway or public vehicular area thereby gives consent to a chemical analysis if charged with an implied-consent offense. Any law enforcement officer who has reasonable grounds to believe that the person charged has committed the implied-consent offense may obtain a chemical analysis of the person.”
However, as a United States citizen, you have rights. One of these rights is that you can refuse testing. However, you should be aware that your refusal to submit for testing has consequences.
In this article, we discuss those consequences and how a competent and experienced North Carolina DWI defense lawyer can help you.
What happens if I refuse a DWI testing in North Carolina?
North Carolina statute G.S. §20-16.2 states that if you drive a vehicle on state's roads or other public areas, you automatically consent to submit to a chemical analysis if you are charged with a relevant, implied-consent offense. North Carolina statute defines 'implied-consent offense' as follows:
"[A]n offense involving impaired driving, a violation of G.S. 20-141.4(a2) [death or injury by vehicle], or an alcohol-related offense made subject to the procedures of this section. A person is "charged" with an offense if the person is arrested for it or if a criminal process for the offense has been issued."
Since driving on the road implies your consent, it is regarded as a breach of the law if you refuse to submit to testing. North Carolina laws state that if you refuse to submit for testing, your license will be revoked for a specified period. In addition to this, you can be forced to take the test if you are arrested on suspicion of driving while impaired.
If you refuse to blow into a breathalyzer the officer can obtain a search warrant and compel you to provide a sample of your blood.
Never Waive your Rights
When you are arrested on suspicion of driving while impaired, the arresting officer must advise you of your rights and the consequences of your exercising said rights.
The officer must advise you of the following:
- You have the right to refuse testing. Your refusal, however, will result in having your license immediately revoked for at least one year.
- If your test result shows a blood alcohol content of .08% or higher, your license will be revoked for at least thirty days. If you are driving a commercial vehicle, the threshold is 0.04%. If you are less than twenty-one years old, the threshold is 0.01%.
- You have the right to contact an attorney and have a witness present to observe the testing procedure. However, your consultation with your DWI lawyer and the selecting of a witness must not delay your testing for more than thirty minutes.
- You have the right to seek an independent alcohol test when you are released, in addition to the one ordered by the police officer.
After informing you of all these, the arresting officer will ask you to sign a form confirming that you were advised and that you understood the advice.
You should know that if a police officer pulls you over on suspicion of driving while impaired, he or she can ask you to take a roadside preliminary test. This is also known as Portable Breath Test. Under North Carolina law, you have the right to refuse this test. You will not suffer any consequences to your driver’s license. However, the officer may still arrest you if other DWI factors were in place. This could include swerving while driving or driving above the speed limit. After arrest, the arresting officer will ask you to take the more accurate chemical analysis test. It is in doing this that the advice listed above is given.
Defending a DWI refusal in North Carolina
A DWI refusal in North Carolina may result in either administrative or criminal penalties. Revocation of your license is an administrative (civil) consequence. To reverse it, you need to request an administrative hearing within ten days of the revocation. However, to increase your chances of a positive outcome, it is important to retain a competent North Carolina DWI lawyer.
This administrative hearing is usually carried out by the Department of Motor Vehicles (DMV). The DMV administrative officer’s job is to hear your case and consider whether the arresting officer had probable cause to pull you over and request the test. If the administrative officer finds probable cause, your license will be revoked for a year. However, an experienced DWI attorney may be able to show that there was no probable cause to stop your vehicle in the first place.
Note that this penalty only applies if you are charged with DWI - not convicted. The revocation of your license does not have anything to do with criminal charges. Criminal charges may still be brought if you failed the test.
Another important point to note is that even if the criminal charge fails or the charges are later dropped, your license will remain revoked until the specified time is over. This is because the revocation of your license was a DMV prerogative and had nothing to do with criminal charges. This is why retaining a skilled DWI defense lawyer for the administrative hearing is crucial.
However, as your DWI attorney we will mount a defense by showing that since you did not submit to testing, the state has no conclusive evidence to prove your guilt. The burden of proof is thus, on the state and they must prove that you showed appreciable impairment while driving. Appreciable impairment is the theory prosecutors use when a person blows less than 0.08 or is a DWI refusal.
If your North Carolina driver's license is already suspended there is no reason to submit to chemical testing. There is no such thing as a "double suspension." If your license is suspended and you are pulled over for suspicion of a DWI you should refuse chemical testing. The worst thing that can happen with DWI refusals is the suspension of your driver's license. If your license is already suspended then there is virtually no consequence for refusing. Additionally, if you were to be convicted of driving while impaired your driver's license would be suspended anyway. Refusing chemical testing may save you from a conviction.
Additionally, refusing to submit to chemical testing is most beneficial if you also refuse standardized field sobriety tests. There is no consequence for refusing to perform field sobriety tests. Your performance on field sobriety tests may give the state enough evidence for a conviction based on appreciable impairment. DWI refusals after performing field sobriety tests may make matters worse because you would not be eligible for the standard limited driving privilege if you are convicted.
If a person refuses the breathalyzer the officer may seek to get a search warrant for a blood test. In order to get a search warrant a magistrate must find probable cause that you were driving while impaired. If you did not perform the field sobriety tests and refused the portable breath test the officer may have difficulty explaining why he believes you may be impaired. If the officer is unable to get a search warrant for your blood the evidence against you at your trial for the DWI will be limited.
After six months of having your license revoked due to a DWI refusal, you can petition the court for limited driving privileges. These privileges allow you to and from places like school or work.
A North Carolina DWI defense lawyer can help
Facing DWI charges in North Carolina can be extremely stressful. The harshness of the law and seeming ease with which you can be convicted can be traumatic. The consequences of a conviction are also very serious.
If you or your loved one has been arrested or charged with a DWI, you should get the services of an experienced North Carolina DWI defense lawyer right away. As your DWI lawyer we will help you understand how the law applies to your case and how best to mount a defense.
At Stowe Law Firm, we understand how a conviction can negatively affect your life, career and even your ability to get a loan. We will defend you aggressively and with compassion for your individual situation.
With an Avvo rating of 10.0, we are well-known in Cabarrus, Davidson, Mecklenburg, Rowan, Davie, and Stanly counties for our professionalism in protecting your rights and liberty. Ryan Stowe is a member of The National College of DWI Defense and devotes a substantial amount of his practice to NC DWI defense.
To schedule an initial free consultation, please call 704-856-9502 or reach out to us through our contact page.