Should I Refuse the Breath Test?

If you are stopped for DWI in Wake County and North Carolina, a common question many people have is whether or not you should refuse the breath test.  Of course, the answer isn’t as clear cut as you may think and ultimately that decision has to be yours to make.  The easiest answer is to avoid driving after drinking altogether, however that is often times easier said than done.

There are many issues that arise with respect to refusing the breath test, most importantly how will your driver’s license be affected?  North Carolina, as do most other states, has an implied consent law found in N.C.G.S. 20-16.2 that in its most basic form requires that any person who drives a vehicle on a street, highway or public vehicular area has thereby given consent to a chemical analysis if charged with an implied-consent offense (DWI or driving after consuming under the age of 21).  The statute allows a law enforcement officer who has reasonable grounds (probable cause) to believe the driver has committed an implied-consent offense to obtain a chemical analysis of that person.  Before an officer can conduct a chemical analysis you have to first be charged with DWI (normally that occurs when you are arrested), then taken before a licensed chemical analyst and advised of your rights with respect to taking a breath test.

Note: It is important not to confuse a roadside portable breath test (known as a PBT) and an intoxilyzer breath test (known as an Intox EC/IR II).  The roadside breath test is not the breath test that will affect your driver’s license if you refuse.  These are two separate test and in most instances, the number results of the roadside breath test are not even admissible in a trial or pre-trial hearing.

After being charged with an implied-consent offense such as DWI or driving after consuming under the age of 21, the chemical analyst will advise you of the following rights before the breath test is administered:

  1. You have been charged with an implied-consent offense. Under the implied-consent law, you can refuse any test, but your drivers 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 privilege 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.

If you decide to refuse the breath test or fail to perform the breath test according to the officer’s instructions, the officer then may submit an application for a search warrant for your bodily fluids.  Even if a blood test is performed either via your consent or pursuant to a valid search warrant, a refusal of the breath test may still end up revoking your license for a year or more.  Often times following a refusal, the officer will prepare a revocation order and submit the order to the Department of Motor Vehicles stating that the driver willfully refused a breath test.  Once this revocation order has been submitted and processed by DMV you may face the possibility of a one year driver’s license revocation, regardless of whether or not you are ultimately convicted for the DWI.  This revocation is based upon the fact that you have agreed to submit to the Intox EC/IR II as a condition of having your N.C. driver’s license.

In addition, you must consider that in some cases a limited driving privilege may not be issued until after the first six month following the refusal revocation period.  Moreover, if a blood test is performed and the results of that test tend to inculpate the accused impaired driver, in addition to other costs and fines, you may be responsible for paying the $600.00 lab fee at the end of your case.

Lastly, N.C.G.S. § 20-139.1(f) provides that evidence of a defendant’s refusal to submit to a chemical analysis is admissible against him in a DWI prosecution.  Unlike almost all other criminal charges, if you assert your constitutional right not to provide evidence against yourself through a refusal of a breath test in North Carolina, the courts have held that the refusal can be used against you in court.

Of course, if you refuse to submit to an Intox EC/IR II breath test, some advantages to your case may be the fact that the prosecution may not have a BAC reading, thus denying them a critical piece of evidence against you.   Without the results of a chemical analysis of breath or blood, the State is forced to prove your case based on the appreciable impairment prong (link with new article) of the impaired driving statute.  In addition, denying the evidence of the Intox EC IR II reading makes any unreasonable delay in your release from custody that much critical and can also serve as a basis to have your case dismissed.

If you have been stopped for DWI in Wake County, contact Raleigh DWI Defense Attorney Chris Dozier to discuss your defense.  Chris will bring his experience and knowledge as both a former Wake County Prosecutor assigned DWI cases and criminal defense attorney to work for you.  Call (919) 443-0911 or contact us today to schedule a free DWI defense consultation.