Do I Have to Give a Blood or Breath Sample After a DWI Arrest?

Posted by Josh Valentine | Jun 27, 2019

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: 

  1. 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.
  2. The test results, or the fact of your refusal, will be admissible in evidence at trial.
  3. 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.
  4. After you are released, you may seek your own test in addition to this test.
  5. 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.

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