Understanding Breath Tests in Wake County

DWI law is extremely complicated and can involve understanding many different General Statutes and how each apply to a particular case. Raleigh DWI Attorney Chris Dozier is a Wake County DWI Defense Attorney and Former Wake County DWI Prosecutor who has had years of courtroom experience in handling DWI cases. To better understand the two (2) types of breath tests that you may be requested to perform if you are stopped and arrested for DWI, Attorney Chris Dozier hopes to answer some common questions that he receives from clients, friends and family:
1. If I’m stopped by police for DWI and I refuse to blow on the side of the road will the cops arrest me?
2. If I refuse to blow on the side of the road won’t my license get suspended?;
3. Do I get to have to blow at the jail?
4. What are my rights regarding taking the breath test?
5. Do I have to give consent before a blood draw can be performed if I refuse the breath test?
First, there are two (2) types of breath tests that you can be requested to submit to if you are stopped by law enforcement (provided the police have reasonable suspicion). The first breath test that you will likely be requested to submit to is called a “portable breath test” or PBT. This is normally administered on the side of the road and the PBT has absolutely no effect on your driver’s license. You can refuse to take this test without any worry or concern of this refusal revoking your driver’s license. Additionally, the numerical results of this test are NOT admissible in Court or any other hearing. If you choose to submit a breath sample into a PBT it will not matter if you blow a 0.04 or a 0.28, the Court will only know that the PBT sample was “positive for alcohol.” See N.C.G.S. §20-16.3.
The primary purpose for Officers to use the PBT on the side of the road is to ensure that if the Officer believes someone may be driving while impaired, the results can help to corroborate that in fact the signs of impairment the officer has observed (driving, field sobriety tests, etc.) is related to alcohol consumption. The Officer should only use this test to corroborate that in fact you had been consuming alcohol. While refusing to perform this test will not affect your driver’s license, an Officer may consider your refusal to perform this roadside breath test in his/her decision to place you under arrest.
Anytime you are stopped by police and they begin a DWI investigation everything you do and say is being recorded, documented or remembered by the officer to include in his/her report to be used against you in Court. So, if you politely and respectfully refuse to answer any questions and refuse to perform roadside testing it is likely that the officer will arrest you for DWI based upon their observations coupled with your refusal to assist in their criminal investigation against you. If you perform all the requested test and the PBT, the officer is still likely going to place you under arrest for DWI based upon “clues” they are told to look for. The more test that you perform, the more evidence the State may have to use against you. Unless you honestly have only had those “1 or 2 beers” and the PBT reads a 0.05 or below (yes, they can still arrest you if your BAC is under 0.08), choosing to assist in the State’s collection of evidence against you may prove to have a negative impact in your defense.
Secondly, once you’ve been arrested you will be taken to the jail and an officer who is a “licensed chemical analyst” will inform you of your rights regarding the breath test. Since driving while impaired is considered an “implied consent offense”, “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.” See N.C.G.S. §20-16.2.
Our Statutes require that “[b]efore any type of chemical analysis is administered the person charged shall be taken before a chemical analyst authorized to administer a test of a person’s breath or a law enforcement officer who is authorized to administer chemical analysis of the breath, who shall inform the person orally and also give the person a notice in writing that:

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.

Once you have been advised of these rights, the Officer (Chemical Analyst) will wait fifteen (15) minutes before requesting that you submit to the breath test. If you request an attorney and/or witness to observe the testing procedures then the officer will wait thirty (30) minutes before you will be requested to submit to the breath test. If you fail or refuse to submit to this breath test at the jail, your act or omission of not properly blowing into the machine (Intoxilyzer EC/IR II) will likely end up being categorized as a “willful refusal”. A willful refusal will likely result in DMV issuing a suspension of your driving privileges for up to 12 months, subject to your right to request a hearing to challenge the refusal. See N.C.G.S. §20-16.2.

Additionally, if you refuse to submit to this post arrest breath test the officer can seek your consent for a blood draw or apply for a search warrant from a Magistrate Judge. If you have chosen to refuse to perform the breath test, at this point you might as well make the Government do everything by the book if they are going to infringe upon your Fourth Amendment protections and request that the officer apply for a search warrant for your blood. This will also buy you a little extra time before the blood draw can be conducted. Additionally, the Magistrate Judge doesn’t have to grant the search warrant and the Officer may simply choose not to seek a warrant. See N.C.G.S. §20-139.1. Again, whether you provide consent for the blood draw or require a search warrant, the State can still obtain a sample of your blood and your refusal to consent to the search does not change any of the conditions of your license suspension or punishment if the Court were to find you guilty of DWI.
As far as the 12 month civil license suspension of your driver’s license for the refusal, you should receive notice in the mail from DMV indicating when your suspension will begin. You can then petition for a hearing with DMV regarding the suspension and require that the State appear at the DMV hearing and present testimony regarding your arrest and refusal. If your refusal is upheld by DMV then your driver’s license will be suspended for 12 months. You are only eligible for a limited driving privilege (LDP) after 6 months of your refusal suspension has passed and only if your pending DWI case has been resolved (guilty, not guilty or dismissed) and you are otherwise eligible for an LDP pursuant to your DWI conviction (Level 3, 4, or 5 DWI conviction). See N.C.G.S. §20-16.2.
As you can see this is a very complicated area of law and it is important that you hire an attorney with the knowledge, background and courtroom experience in DWI law. If you have been charged with a DWI please contact Raleigh DWI Attorney Chris G. B. Dozier for a free consultation today.