North Carolina DWI: Refusal to Take a Blood, Breath or Urine Test

In North Carolina, if you get pulled over for a DWI and the officer asks you to take a blood or breath test, do you have to take one? What happens if you refuse?

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Implied Consent

North Carolina law requires you to take a blood or breath test if you are arrested for a DWI. North Carolina’s “implied consent” law says that if you are lawfully arrested by an officer who has probable cause to believe that you have been driving while intoxicated, then you consent to taking a chemical test of your blood or breath for the purpose of determining your blood alcohol content (BAC).  The test may be taken at any relevant time after you have been driving. The courts in North Carolina have not explained exactly how long “any relevant time” is, but they have allowed a test to be taken as late as three hours and forty-five minutes after a person had driven.  You can read more about the relevant time to take a test in the case State v. Patterson, 708 SE 2d 133 (2011).

You could be asked to take a breath test even before you have been arrested. An officer can request a breath test at a check point, or if you were in an accident, or if an officer catches you breaking a traffic law and reasonably believes you have been drinking. It will not work in your favor to refuse this preliminary breath test. Once the officer has a reasonable belief that you have been driving while intoxicated, then he or she can still arrest you and ask you to take a chemical test, which you cannot refuse without penalty.

You can read North Carolina’s implied consent law in the North Carolina General Statutes 20.16.2

Refusing to Take the Test

 

1st Offense

2d offense

3rd Offense

Refusal to take test

1 year license suspension

No statutory provision

No statutory provision

Once you are arrested, the officer should tell you and give you notice in writing that you will lose your license for at least one year if you refuse to take a test. The officer must also tell you that you have certain rights. You could get an additional test if you choose to submit to the first test. You have the right to speak with an attorney and to have a witness with you while the test is taken. You only have 30 minutes, however, to consult with your attorney and get your witness to the test site.

If this is your first refusal, then you could get a limited-driving privilege after you have finished six months of your suspension. This privilege is only available if you haven’t been convicted of a DWI within the past seven years. Also, this option doesn’t apply if you caused an accident that killed or seriously injured someone.

The consequences of refusal are found in the North Carolina General Statutes 20.16.2.

Should You Refuse to Take a Mandatory DWI Test in North Carolina?

It usually does not help you to refuse to take a blood or breath test when you are arrested. For a first DWI in North Carolina, you will have to pay a fine, perform community service, and you could go to jail. The amount of the fine and jail time depends on how high your BAC was, whether you caused an accident, and your overall driving record. Unless you know a test will show that you are at the tipping point for driving drunk and you have a clean record, the consequences for a DWI will be more severe than a suspension of your license. Still, refusing the test does not guarantee that you won’t be convicted – you could be found guilty of a DWI even if your refusal means that the state does not have proof that your BAC was over.08%, the legal limit for those over 21. In fact, the prosecution can use your refusal against you by arguing that you refused the test because you knew that you were intoxicated and guilty of DWI.

Get Help With Your DWI

If you have been arrested on a DWI charge in North Carolina or any other state, get help from an experienced DWI attorney. Unlike other traffic related charges, which might be worth fighting without a lawyer, conviction for a DWI has serious consequences – especially if the incident involved injury to people or property, or if it’s your second or subsequent DWI. To avoid or reduce the consequences, your best bet is to find an attorney who is knowledgeable about your state’s laws and about how the system works in your county’s court.

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