How Can a Refusal Help or Hurt Your DWI Case?

Posted by Josh Valentine | Mar 30, 2018

In North Carolina, all drivers on the road are subject to the state's implied consent law. This means that by hitting the open road, you automatically give your consent to submit to chemical testing if a police officer believes that you are driving while impaired. While you still have the right to refuse a breathalyzer or blood test, doing so can have serious consequences. It is important to understand what can happen in your DWI case if you refuse chemical testing.

Procedures for Chemical Testing in North Carolina DWI Cases

When you are pulled over on suspicion of DWI after being involved in an accident or violating a traffic law, police will assess the situation and determine if chemical testing is necessary. Even though you have given your implied consent to submit to testing, police must still advise you of your rights and explain the testing procedures. Prior to taking a chemical test, police should tell you:

  1. You have the right to refuse chemical testing, but doing so will result in the automatic suspension of your driving privileges
  2. You have the right to have an attorney or another witness present when the chemical test is administered (as long as the witness does not unnecessarily delay the administering of the test), and
  3. You will automatically lose your license for 30 days if your blood alcohol content (BAC) exceeds the legal limit (.08 percent for drivers over the age of 21).

Once police have gone over these basics, they will ask you to sign a form acknowledging that you understand and consent to the testing.

Can Police Force Me to Take a Breathalyzer or Blood Test?

North Carolina law authorizes police to request a search warrant to test your blood for alcohol. Police can contact a magistrate, submit a request for a warrant, and receive permission to forcibly take and test your blood within a matter of hours. If the results of the blood test indicate that your BAC exceeds the legal limit, you can be convicted of DWI. You may also be required to pay any related lab costs that were required to run the blood test.

Can My Refusal to Submit to Chemical Testing Be Used as Evidence in a Criminal Case?

Chemical testing is only punishable by the automatic suspension of your driver's license. It is important to know, however, that your refusal can also be used as evidence against you in a criminal DWI case.

When considered in conjunction with other evidence, your refusal to submit to chemical testing may persuade a judge or jury that you are guilty of driving while impaired. Penalties for a first-time DWI include: 

  1. A minimum of 24 hours and a maximum of 1 year in jail
  2. Between $100 - $2,000 in criminal fines
  3. Community service, and
  4. One-year suspension of your North Carolina driver's license.

Why Should I Consent to Chemical Testing?

Many people are ill-informed and think that by refusing chemical testing, the police will not have evidence to use against them. The truth is: refusing chemical testing will result in the automatic suspension of your driver's license and can be used as evidence against you in a criminal DWI case. If police really want to assess your BAC, they can request a warrant to test your blood. If you consent to chemical testing, you always have the right to fight the results in court.

Chemical testing isn't perfect. In many cases, police aren't always properly trained in how to administer tests. If tests or results are not handled properly, they can easily be tainted by outside elements. At Caulder & Valentine, our experienced attorneys know how to attack the results of chemical tests to undermine their legitimacy as evidence. Call us today to request a consultation and find out how we can help you fight a DWI in North Carolina.

About the Author

Josh Valentine

You could say Josh has a God-given ability for sustaining long-term relationships. He and his wife first met in elementary school and went to Gardner Webb University (GWU) together, where they tied for number 1 in their class. Then, they both started law school on the same day of their graduation and got married during their first semester. He has also known his law partner Blake Caulder since Kindergarten. Theirs is the perfect partnership. “He’s the brake; I am the accelerator,” Josh says. Both Josh and his wife attended an innovative program at Charlotte Law School that allowed them to complete law school in two years instead of the typical three. His wife graduated and passed the North Carolina bar at age 20, becoming one of the youngest attorneys in the state. He readily admits she’s smarter than him. Of course, Josh went on to pass the North Carolina State Bar himself and later the South Carolina State Bar. While in school, he was Associate Editor of the Law Review and received accolades like Phi Delta Phi International Legal Honor Society membership, Order of the Crown, Pro Bono Honors, CALI Awards (highest grade). In his career as a lawyer, he has been admitted to the United States Federal Court for the Western District of North Carolina, is a member of the American Association of Premier DUI Attorneys, and completed training for DWI Detection & Standardized Field Sobriety Testing. Josh has also been named to the Top 40 Under 40 for Criminal Defense by The National Trial Lawyers, the Business North Carolina 2019 Legal Elite for Criminal Defense, and the 10 Best Attorneys for Client Satisfaction by the American Institute of Criminal Law Attorneys three years in a row (2016, 2017, and 2018). Community involvement has been important to Josh all his life. In high school, he participated in building a Holocaust museum that has become internationally regarded. He and his wife are actively engaged in animal rescue, which currently means seven cats and two kittens. He served in prison ministry and assisted with fundraiser banquets there, and he provides pro bono and reduced fee legal services to those in need. As if all of that weren’t enough, Josh also mentors high risk youth and helps with his church’s youth group. He participates in other community volunteer projects involving construction, remodeling, drywall, painting, and landscaping. He’s an active student of the Bible and has traveled to Israel, Brazil, and Europe for mission work. No one can say Josh isn’t a well-rounded individual. In his spare time, he likes to play softball, basketball, and tennis, and he can play the piano and trombone. Sometimes on weekends, believe it or not, he enjoys pouring and finishing concrete with friends who own a concrete and grading business. In his law practice, Josh has made it a point to develop positive relationships with officers, clerks, and district attorneys, which has proven invaluable in delivering positive results for his clients. It’s important to him to both listen to his clients and fight for them. Law enforcement officers have important responsibilities to keep our communities safe and uphold the law, but one of the responsibilities of attorneys is to make sure officers do their job correctly. Josh considers it his job to hold them accountable for their actions. Josh is a person of deep faith. He knows that the established order of our universe and strength of America’s Judeo-Christian influenced court system is built on God’s word. His passion to serve each client with innovation, excellence and integrity is a byproduct of his faith. When asked why he became a lawyer, Josh says, “All through my life, I have personally witnessed family members and very close friends endure divorce, child custody battles, bankruptcy, civil lawsuits, and even fraudulent criminal accusations. I both saw and experienced the stress such events can place on an individual, and I realized that everyone, at some point in their life, needs hope, comfort, and encouragement. In each one of those situations, the person who was best situated to provide that vital support was their lawyer. So that’s why I became an attorney. I understand what you are going through, and I’m here to help you. Our office is focused on meeting your needs and guiding you through what may be the most difficult time of your life.” Education: Charlotte School of Law J.D., Magna Cum Laude Class Rank – 21 of 328 Associate Editor of Charlotte School of Law Law Review Certification and Concentration in Employment Law Phi Delta Phi International Legal Honor Society Order of the Crown Pro Bono Honors CALI Awards (Highest Grade)—Lawyering Process I and Contracts I Full Scholarship Gardner-Webb University B.S. in Accounting, Summa Cum Laude Distinguished Senior Student Award – Highest GPA Alpha Sigma Lambda National Honorary Society Bar Admissions: North Carolina State Bar