What Happens If You Refuse A Breathalyzer In NC

Driving while intoxicated is a serious offense in North Carolina, leading to strict penalties including loss of driving privileges, fines, and even possible jail time. Often, a conviction of drunk driving occurs due to the results of a breathalyzer test, so what happens if you refuse a breath test in North Carolina? Our NC DWI defense lawyer is sharing what your options are and what you can expect.

North Carolina Implied Consent Law

The quick answer to whether you can refuse a breathalyzer test if you're suspected of drunk driving is yes, but you'll face penalties for doing so. North Carolina law outlines an implied consent offense for this specific issue.

Implied consent laws state that because driving is a privilege, you agree to drug and alcohol testing if you are suspected of driving while impaired. The statute 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.

An implied consent offense is defined within the general statute 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 the criminal process for the offense has been issued.

The arresting officer does have to advise you that you have the right to refuse to take a breathalyzer but doing so will lead to an immediate license revocation of one year under implied consent laws.

This is separate from DWI charges and is solely based on the above statute.

What Happens in a DWI Stop in North Carolina?

Before we get to the arrest and implied consent issue, it's important to understand how to protect yourself if you are stopped for drunk driving. If you show signs of driving while intoxicated, such as swerving, slowing down and speeding up, or hitting curbs, police officers have probable cause to pull you over. At that point, the steps you take often determine the outcome of your case. After handing over your license and registration, it's important to be polite and follow instructions, but you don't have to incriminate yourself. The police officer may ask you if you've been drinking, and while you should never lie, you can politely refuse to answer questions.

Standardized Field Sobriety Tests

After determining there is cause to believe you have committed an offense involving impaired driving, the officer may ask you to take a field sobriety test such as walking a straight line in a specific manner. Performing field sobriety tests often lead to failure even when you haven't had anything to drink and can further strengthen a case against you. You can and should voice a polite refusal to take a field sobriety test.

Portable Breath Test

The officer may then ask you to take a breath test using a portable breathalyzer, or PBT. These tests are often unreliable, leading to a false positive. You can refuse testing with no penalty, as this does not apply to implied consent, though will most likely be arrested on DWI charges at this point.

Can You Refuse a Breathalyzer Test After Arrest?

If you are arrested and brought to the police station, the arresting officer will ask you to take a breath test or a blood test to determine your blood alcohol content. At this point, if you refuse either type of chemical testing, your license will be suspended for a year under the implied consent laws (even if you are later acquitted or not charged with drugged or drunk driving). Refusing a breathalyzer test or blood draw can also be used against you in court when facing your DWI charges.

However, if you have been drinking and suspect you will show a blood alcohol content level of 0.08 or higher (or a 0.04 if driving a commercial vehicle), we would still recommend refusing a chemical test.

If you do choose to take a breathalyzer or give a blood sample, you still have the right to have a DWI attorney as well as a witness present, though they only have 30 minutes to arrive at the station.

Can I Refuse A Forced Blood Draw In NC?

You can still refuse a blood draw, but at this point, after refusing a breath test or voluntary blood test, the arresting officer can obtain a search warrant from a judge to force a blood sample. A prosecutor can use your refusal of a breathalyzer as evidence that you are guilty of drunk driving.

Defending A DWI Refusal In North Carolina

If you are charged with a DWI offense, it's important to have an experienced DWI attorney on your side to help you fight the charges you are facing. At face value, refusing chemical testing may be a sign of guilt, but experienced legal representation can fight to show that you were wrongfully pulled over and detained, that you were concerned about the validity of a blood or breath test, and hadn't committed a crime.

What Happens After a License Revocation

At a minimum, you are facing at least a year of having your North Carolina driver's license suspended for refusing chemical testing. However, you and your attorney can appeal for a limited driving privilege to be granted. This allows you to drive to work, attend school, go to the doctor, and attend church, though there are strict curfews in place.

Schedule a Free Consultation with a DWI Attorney in Raleigh Today

At the Law Office of J.M. Kotzker, we have over 25 years of criminal defense experience and focus on traffic violations and DWI charges. If you are being asked to submit to a blood alcohol test or have been arrested, call us immediately to get the legal representation you need. Reach out to us today at (919) 439-5104 or fill out the form below to get started.