Can You Refuse to Take a North Carolina DWI Breath or Blood Test?
March 21st, 2019
Contributor: R. Mark Warren
The state laws that apply to charges for DWI (Driving While Impaired) in North Carolina are extremely complex. One particular issue that frequently leads to questions relates to whether you can refuse to take a DWI breath or blood test. The simple answer is that you do have the legal right to refuse. But there are consequences for refusing, and they can be severe.
North Carolina Implied Consent Law
Statutes in the North Carolina include a specific law called the implied consent law. Under the statute, when you drive in the state, you agree to drug and alcohol testing if a law enforcement officer suspects you of driving while impaired. The law reads as follows:
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.
The statute defines an implied-consent offense as:
[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 criminal process for the offense has been issued.
The law requires the police officer to advise the driver in writing of his or her specific rights, as well as of the potential consequences of refusal. The officer’s notification must advise the driver that:
- The driver is charged with an implied consent offense;
- The driver has the right to refuse taking the test;
- Refusal will result in immediate license revocation of at least one year;
- The officer can compel testing under other laws;
- A test showing a BAC of 0.08 or higher will result in license revocation of at least 30 days (if you are driving a commercial vehicle, the threshold is 0.04; if you are under age 21, the threshold is 0.01);
- The driver has the right to ask for an independent alcohol test (in addition to the test administered by the officer) after release; and
- The driver has the right to contact an attorney and have a witness present at testing, as long as exercise of these rights does not delay the testing more than 30 minutes.
The implied consent law applies to everyone who drives on highways, streets, and roads in North Carolina. That means all visitors and tourists who drive in the state are subject to the law, just as residents are. You do not need to have a North Carolina driver’s license to be subject to the implied consent statute.
North Carolina and most states are party to the Interstate Driver’s License Compact. Under the Compact, states penalize drivers for out-of-state offenses as if the offense occurred in the driver’s resident state. The Compact’s motto is: “One Driver, One License, One Record.” As such, out-of-state residents who refuse a breath or blood test in North Carolina following a DWI arrest may face license revocation in their home state.
What Happens in a DWI Stop in North Carolina
If a law enforcement officer stops you on suspicion of DWI, the officer may ask you to take a roadside preliminary / portable breath test (PBT). Under North Carolina law, you can refuse to take the PBT with no adverse consequences to your driver’s license. However, the officer may still arrest you for DWI based on other factors, such as swerving while driving.
Following arrest, the officer may ask you to take a second, more accurate test at the police station. The officer must give the required notification before administering the second test. After giving the required notification, the police officer will ask you to sign a form to confirm receiving and understanding the notification.
The police officer also may ask you to take a blood alcohol test in addition to or instead of the breath test. Again, the officer must give the required notification before this test is administered. If you refuse the blood test (or are unconscious), the officer must obtain a warrant to take the blood sample.
What Happens If You Refuse a North Carolina DWI Breath Test or Blood Test?
While you have the right to refuse a breath or blood test, doing so can — and most often does — result in revocation of your driver’s license for at least a year. Refusal does not result in criminal charges. The process is a civil license revocation procedure that is completely separate from any DWI or other criminal charges. Even if you eventually are found not guilty, or the charges are dismissed, the license revocation from your refusal remains in effect.
In addition, prosecutors can introduce evidence of your refusal to take the test in your DWI case. They likely will argue that you were trying to conceal the fact that you were impaired. Refusing the test also may affect the prosecutor’s approach to your case and even affect your lawyer’s ability to negotiate a favorable outcome.
Talk With an Experienced North Carolina DWI Attorney
DWI laws are complicated from the standpoint of determining how to defend against a charge, as well as ascertaining evidence that constitutes mitigating and aggravating factors affecting the severity of sentencing. Providing the best defense requires a North Carolina attorney who knows the DWI laws and court practices relating to the DWI charges and sentencing.
Our criminal defense attorneys at The Twiford Law Firm have extensive experience defending against DWI charges arising from alcohol and drugs. We will aggressively defend you against any DWI charges in North Carolina state courts.
In addition to state court DWI charges in North Carolina, you can be charged with a DWI offense in federal court if you drive impaired in one of our state’s federally owned national parks and protected areas. Our attorneys handle federal DWI charges as well as state DWI charges in North Carolina.
With offices in Elizabeth City and Moyock, we serve clients throughout northeastern North Carolina. Contact us today at 252-338-4151 or 252-435-2811 to schedule an initial consultation.
Additional information about DWI defense is available in our previous article, Defending Against a North Carolina DWI Charge. In another article, Understanding North Carolina DWI Laws and Penalties, we explain North Carolina DWI statutes and consequences in detail.
Categories: Criminal Defense