Do I Have To Take A Breathalyzer Test?

Refusal

While North Carolina law indicates that all drivers are deemed to have given consent to testing, all persons can withdraw this consent and refuse to comply with an officer’s chemical test request. If an arrested driver refuses to provide a breath, blood or urine sample, the officer will submit a refusal certification to the North Carolina DMV. Unless the driver requests a hearing, the DMV will then revoke the driver’ license for 12 months.

A driver that refuses testing will generally not be forced to take any other tests unless a search warrant is obtained. In some circumstances—especially DWIs involving injury—the officer can apply for a search warrant to obtain a blood sample. A court-ordered search warrant gives the officers the authority to obtain a blood sample, by force if necessary.

If charged with DWI, the prosecutor can use the fact that the driver refused testing to show culpability. Unless injury or death occurred, a DWI suspension will run concurrent to the refusal revocation (unless injury or death occurred).

Defenses

Before a driver can be revoked due to a test refusal, the officer must show certain requirements. The officer must show that:

• reasonable grounds for DWI or underage consumption existed
• the driver had been notified of his or her rights, and
• the driver willfully refused to complete testing.

If any of these elements are lacking or can be disproven, the revocation will be dismissed.

Even if the driver is revoked, a restricted license is generally available after six months of revocation.

Citations:

N.C. Gen. Stat. Ann. § 20-16.2 Implied Consent

N.C. Gen. Stat. Ann. § 20-138.1 DUI