After an arrest for drunk driving in North Carolina, the police or state troopers will generally ask for a breath or blood sample. The driver may be wary of giving a breath test because the test results can be inaccurate and it may show the driver was over the legal limit. Alternatively, the driver may want to refuse the test because the driver knows he or she had too much to drink and the prosecutor will have the evidence to convict the driver.
While drivers are generally given a choice to refuse a breathalyzer or blood test after a DWI arrest, refusing to give a chemical sample can result in an automatic license suspension and the driver may still be convicted of a DWI. If you have any questions about whether to give a breath sample or the consequences for refusing a breath test, talk to your North Carolina DWI defense attorney.
Implied Consent to Chemical Testing
Under North Carolina's “implied consent” law, drivers are considered to have agreed to chemical testing in a DWI arrest. You may not remember to agreeing to chemical tests, but by virtue of driving a vehicle on a highway or public vehicular area in North Carolina, you have impliedly given consent to a chemical test if charged with drunk driving or drugged driving.
Implied Consent Advisory
Before administering a chemical test, the driver is generally given notice of the following:
- You have been charged with an implied-consent offense. Under the implied-consent law, you can refuse any test, but your driver's license will be revoked for one year and could be revoked for a longer period of time under certain circumstances, and an officer can compel you to be tested under other laws.
- The test results, or the fact of your refusal, will be admissible in evidence at trial.
- Your driving privileges will be revoked immediately for at least 30 days if you refuse any test or the test result is 0.08 or more, 0.04 or more if you were driving a commercial vehicle, or 0.01 or more if you are under the age of 21.
- After you are released, you may seek your own test in addition to this test.
- You may call an attorney for advice and select a witness to view the testing procedures remaining after the witness arrives, but the testing may not be delayed for these purposes longer than 30 minutes from the time you are notified of these rights. You must take the test at the end of 30 minutes even if you have not contacted an attorney or your witness has not arrived.
Negative Inference of Refusal
Just because there is no evidence of your blood alcohol content (BAC) does not mean that you will not be convicted of a DWI. The prosecutor can use your refusal as evidence against you in court. A judge or jury would be able to consider that your refusal shows that you knew you were over the limit and did not want to let the police collect evidence that would show your alcohol level.
Consequences of a Chemical Test Refusal
For many people, losing their license is the hardest part of a DWI conviction to deal with. Refusal of a DWI test will result in your driver's license being revoked for one year, even if the driver is not convicted of a DWI.
If the driver refuses to submit to a chemical test, the Division of Motor Vehicles will notify the driver that their driver's license is revoked for 12 months, generally effective ten days after the mailing of the revocation order.
Challenging the Chemical Tests
Giving a chemical test sample still allows the driver to challenge the results of the breath or blood tests in court. If the chemical testing is challenged and the judge rules the test results should be suppressed, the prosecutor may drop the charges because they cannot use the test results as evidence in the case against you.
There are many ways to challenge breath or blood tests in a North Carolina DWI criminal case. At Caulder & Valentine Law Firm, PLLC, we have helped drivers in Shelby, Cleveland County, Gaston County, and throughout North Carolina fight a DWI conviction. Contact us today for a consultation.
