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Can I Refuse a Breathalyzer in North Carolina?

By Randall & Stump excels in criminal defense, serving clients in Charlotte, NC & other surrounding cities.
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Category Charlotte DWI Attorney, Charlotte DWI Lawyer
Tuesday, January 25, 2022

Police officer handing driver breathalyzer

No one can compel you to use a breath test, but there are consequences if you refuse. There are pros and cons to refusing, but the outcome of refusing may be worse than the DWI sentence, especially if it’s your first.

There should be no consequences for not agreeing to perform standardized field sobriety tests or a preliminary breath test at the scene. Refusing a second breath test at the police station will result in a license suspension.

What NC Says About Breath Tests

Under North Carolina law, you may be found guilty of DWI if you’re operating a vehicle while:

  • Under the influence of an impairing substance
  • Your BAC (measured by a breath test) is more than the legal limit.
  • You have any amount of a Schedule 1 controlled substance in your system.

If an officer stops you because they suspect you of DWI, you’ll probably be asked to submit to one test or another. These tests help law enforcement determine your BAC so they can decide whether to charge you.

North Carolina is an implied consent state. If you drive on a North Carolina road or highway, you consent to a chemical analysis if you’re suspected of drunk driving.

Standardized Field Sobriety Tests

There are three non-chemical, physical SFTS tests that police officers may ask you to perform in a suspected DWI stop:

  • The horizontal gaze nystagmus test
  • The one-leg stand test
  • The walk-and-turn test

You can’t be penalized if you don’t take them. Refusing is a good idea because the results are very subjective, and the officer may not perform the tests correctly. Typically, the results determine whether you’ll be offered, or compelled, to take a chemical test like a Breathalyzer or a blood test.

Chemical Tests Measure Your BAC

The breath test that most people refer to after a DWI is the Preliminary Breath Test. This is a portable Breathalyzer used at the scene. The results aren’t reliable enough to be used in court. Still, if the primary result is past the legal limit, it can justify another breath test at the police department by what should be a more accurate machine (known as an Intoxilyzer) whose results may be used as evidence.

Police may ask you to submit a blood or breath test to determine your BAC.

  • If you refuse a PBT, there are no consequences as far as license suspension, though there may be enough evidence to arrest you anyway
  • If you’re asked to take a second test at a police station on an Intoxilyzer, your driver’s license can be revoked for a year through a non-criminal, civil process
  • The next step could be officers asking you to submit to a blood test. If you don’t comply, the officers will likely get a search warrant to draw your blood, tested at a local lab. If despite the search warrant, you still refuse, it could present other legal issues

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What are My Rights When I’m Investigated for DWI?

You shouldn’t suffer consequences for refusing to participate in a field sobriety test or a PBT at the scene of your arrest.

As for the second breath test at the police station:

  • You have a right to refuse, but if you do, your driver’s license will be revoked for 12 months
  • If you take it and your BAC is 0.08% or more, your license will be revoked for at least 30 days
  • You can contact an attorney, and a witness can watch the testing procedures, but it can’t delay the test by more than 30 minutes
  • You can have an independent blood test, after the one done by the police, after you’re released from custody

Before this test, an officer must tell you your rights and give you a form to sign acknowledging they’ve been told to you. If the officer doesn’t tell you your rights or have you sign the form, these test results can’t be used as evidence against you.

What If I Refuse The Intoxilyzer?

If you refuse the mandatory breath test at the station, your driver’s license will be suspended for 12 months. You have a right to a DMV hearing challenging the suspension, and you can ask the court for limited driving privileges after six months.

Even if the charges are reduced, so it’s not related to intoxication (such as reckless driving), the charges are dropped, or after a trial, you’re found not guilty, the suspension for refusing the test continues until it expires.

If There Are No Tests, Will There Be No DWI Charges?

If there are no chemical tests, there are no results that can be used against you. Whether that will weaken the case enough to prevent a conviction depends on the facts.

You need to make important decisions with limited time under stress if you’re pulled over. If you’re intoxicated, it makes good decision-making that much more difficult. Here are some things to think about:

  • Would this be your first conviction? If there are no minors in your vehicle, there’s no accident, and no one’s been injured, you’re better off taking the tests. If you’re convicted, the sentence you’ll get for DWI will probably be lighter than a 12-month license suspension
  • What other evidence of DWI could be used against you? If police followed you for a long time, you drove erratically, they smelled alcohol, and you acted intoxicated on video from police cameras, refusing the second breath test probably won’t do you much good. Your license will be suspended for 12 months, plus there’s other evidence to convict you
  • Refusing a chemical test may make more sense if you face serious charges and the penalties go beyond a 12-month license suspension. If you’ve had prior DWI convictions or someone’s injured in an accident you caused, you may want to make it harder to prove the charges against you. If this is the case, the police may be more motivated to arrest and convict you so that they may opt for a blood test and a search warrant, so in the end, refusing may not help much. You may be better off accepting the test, then later challenging the results on technical or constitutional grounds

If you refuse the test, you will deal with a license suspension, but you can’t assume it will prevent DWI charges.

Randall & Stump Can Help

If you’ve been arrested for DWI, contact a defense attorney in Charlotte, NC today. We can investigate your case and may find evidence that results in lesser charges, or they may be dismissed.

Whether you refused a field sobriety or breath test at the scene or the station, call Randall & Stump at 980-237-4579 to schedule your free consultation.

Call Today if You Refused a Breathalyzer

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