Should I Take a Breathalyzer Test?

Being charged with a DWI may seem straightforward. But North Carolina DWI laws are actually incredibly complex. Understandably, most drivers know very little about North Carolina DWI laws and procedures, the tests a police officer will administer if they believe a driver is under the influence, and how a DWI prosecution will proceed.

A common question many people have about North Carolina DWI law is, “Can you refuse a breathalyzer and blood test?” The short answer is yes, you can refuse the test, but the consequences for refusing the test can be quite severe.

Some drivers believe that by refusing to take the test, they cannot be convicted of DWI. Others believe that they are required to take the test. And most drivers are unaware of the penalties for refusing a breathalyzer test.

To effectively answer the question of whether you should take a breathalyzer test, it is important to have a basic understanding of North Carolina DWI law and how it could affect your situation.

North Carolina’s Implied Consent Law

Like most states, North Carolina has an implied consent law. Under the statute, by driving on a public highway, you have given your consent to allow police to test your Blood Alcohol Content (BAC) if a police officer suspects you have committed an implied consent offense. Implied consent offenses are those that involve impaired driving, death or injury by a vehicle, or an alcohol-related offense.

North Carolina law enforcement officers are required to advise you of your specific rights, in writing, as well as the consequences of refusal. The officer must notify you that:

• You are charged with an implied consent offense;
• You have the right to refuse to take a BAC test;
• Refusing to take the test will result in the immediate revocation of your driver’s license for at least one year;
• The officer can compel testing under other laws;
• Your driver’s license will be revoked immediately for at least 30 days if you refuse the test or if the test result is .08% or higher. If you are driving a commercial vehicle, the threshold is .04%, and if you are under age 21, the threshold is .01%;
• You have the right to ask for an independent alcohol test after release; and
• You have the right to contact an attorney and have a witness present at testing, but you cannot delay the testing by more than 30 minutes.

The Portable Breath Test

If you are stopped under suspicion of a DWI, the police officer may ask you to take a portable breath test (PBT). The PBT is administered at the side of the road and is used to confirm the police officer’s suspicion that you are under the influence of alcohol. This PBT does not test for the presence of intoxicating drugs.

The police officer will also ask you to perform various Field Sobriety Tests (FSTs), including the Horizontal Gaze Nystagmus Test, the One-leg Stand Test (OSL), and the Walk and Turn Test.

The PBT and FSTs are used to establish probable cause that you are under the influence of drugs or alcohol. At trial, the officer will cite your performance on these tests to try to prove that you were DWI.

You can refuse the PBT and the FSTs with no adverse consequences to your driver’s license. However, the police officer will likely still place you under arrest based on other factors, such as weaving, an odor of alcohol, glassy or bloodshot eyes, and other alleged signs of intoxication.

The Breathalyzer Test

Once you have been placed under arrest, the police officer will ask you to take a second test at the police station. The officer must give the required notification before administering the test and will ask you to sign a form acknowledging that you have received and understand the notification.

North Carolina currently uses the Intoxilyzer ER-IR II to test a suspect’s BAC. According to the manufacturer’s website, the Intoxilyzer EC-IR II uses both an electromechanical sensor and infrared sensor technology to monitor concentrations of alcohol and carbon dioxide in your breath, then quantifies the alcohol concentration in the breath sample.

The Blood Test

The police officer may also ask you to submit to a blood test. Once again, the police officer must give the required notification. If you refuse the test or are unconscious and therefore unable to give consent, the police officer will need to obtain a warrant to take a blood sample.

Can You Refuse the Breathalyzer and Blood Test?

You do have the right to refuse a breath or blood test, but refusing the test will almost always result in the revocation of your driver’s license for at least one year, and you can still be charged with a DWI. The prosecutor can try to convict you by proving appreciable impairment, meaning that your physical and mental faculties were impaired by alcohol or other drugs. In addition, the prosecutor will likely introduce evidence that you refused to take the test and will argue that you refused the test because you were under the influence.

Even if you are eventually found not guilty of DWI, you still face a one-year license revocation due to your refusal to take the breathalyzer or blood test.

Contact The Stowe Law Firm for Aggressive North Carolina DWI Defense

If you have been charged with Driving While Impaired in North Carolina, the Stowe Law Firm, PLLC, can help. From his offices in Salisbury, North Carolina, criminal defense attorney Ryan Stowe proudly represents people in Rowan County, Mecklenburg County, Davidson County, Cabarrus County, and Stanly County.

Attorney Stowe is an accomplished DWI defense attorney and has earned certificates from the National Highway Traffic Safety Administration (NHTSA) in both "DWI Detection and Standardized Field Sobriety Testing" and "Advanced Roadside Impaired Driving Enforcement (ARIDE)." ARIDE is an advanced-level course, and it is possible that Mr. Stowe has received more training in DWI detection than the officer who arrested you. Additionally, Mr. Stowe has completed the NHTSA SFST instructor course and is qualified to teach police officers how to administer Standardized Field Sobriety Testing.

If you have questions about a North Carolina DWI charge, contact the Stowe Law Firm today to schedule a confidential consultation to discuss your case and how we can help.