Following a DWI the arrest, the Officer will bring the driver in front of the Breathalyzer machine at the police station. The Officer will read you a list of rights regarding the implied consent offense of DWI. The Implied Consent deals with a civil contract a North Carolina driver makes with the NC DMV after receiving a license. When applying for a North Carolina driver’s license, the driver agrees that they will consent to a breathalyzer upon a DWI arrest. Refusing the breathalyzer has NO CRIMINAL CONSEQUENCES. The only remedy is a civil action by the DMV against the driver and that action involves a one year suspension of the person’s driver’s license.
I have watched many DWI videos from the Breathalyzer Room and in each case the Officer will read the driver his or her rights regarding taking the test. In almost every case, the driver will ask the Officer if they should refuse or not take the test, the Officer will immediately state if they refuse, they will lose their license for 12 months. This is further from the truth though, what the Officer does not tell the driver is that if they are marked as a refusal, the driver can request a special refusal hearing from the DMV to challenge the refusal. Time is of the essence in this situation though, the driver of the vehicle only has 10 days to make a written request to the DMV. If they do this, then the suspension is stayed or put on hold pending the hearing. If and only if, the driver marked a refusal, does not request this hearing within 10 days will they lose their license for 12 months.
In addition, the Officer will request the driver to sign that he/she understands the rights and has been informed. The basic rights outline involved the following: 1) the right to refuse, if you refuse you will incur a 30 day license revocation and potentially a 12 month revocation, 2) if your BAC is greater than a 0.08, your license will be suspended for 30 days, 3) right to contact an attorney, 4) right to have a witness present to observe you and the testing procedures, and 4) right to seek your own independent test upon release (blood or urine). These rights are so vital to a case, knowing them and invoking them can make the difference between a guilty and not guilty plea.
So let’s say the driver made the decision to refuse the Breathalyzer what are the consequences and how will this affect the trial at court. First foremost, you are innocent until proven guilty beyond a reasonable doubt. The major issue involved with a refusal, is the Prosecution must prove the driver was above the legal limit of 0.08 BAC. If the driver refuses, it will be difficult for the Prosecution to prove this fact and must use other evidence, stated above to prove what is called appreciable impairment. Due to the subjective nature of a DWI arrest and investigation, it becomes very difficult for the Prosecution to prove their case.
The next issue posed to the driver is what will occur at the DMV Refusal Hearing. Most attorney’s will include such hearings with their flat rate fee to represent the client for the DWI trial but find out this information beforehand. There are many ways a DMV Refusal Hearing can be won and avoid the driver’s license from being suspended for 12 months. One of the most common scenarios I have scene is the Officer simply does not show up for the hearing. If the Officer does not appear, then the DMV has no evidence or testimony that the driver refused. Let’s look at the flip side though, say the Officer does appear for the refusal hearing. One way your attorney can attach the refusal is by proving in criminal court that the Officer should of never arrested you for DWI or the legal term Probable Cause to arrest. If the Judge in criminal court finds that the arrest was illegal, then the driver should of never had to make the choice to refuse and the DMV will throw the case out.
Another issue prevalent in NC DWI law today, which many people ask about is blood testing. Until recently, there was no criminal consequence to refusal, however, the NC legislature changed the laws and now allows for blood testing. If the Officer does request a blood sample, the driver DOES NOT HAVE TO CONSENT and should not consent. If the driver does not consent, then the Officer will have to get a warrant to take the driver’s blood. Warrants can be very difficult to obtain for several reasons. First, DWI arrest typically occur at night and on the weekends. These time periods are very busy for Magistrates (the person who issues warrants). Magistrates must deal with every person arrested that night and typically they are understaffed. Also, the Officer must be able to the show the Magistrate there exists probable cause to obtain the warrant, which can be difficult depending on the reason the driver was stopped and especially if the driver refused all the field sobriety tests. If the Officer does get a warrant, the driver can still refuse and should not consent at all to the blood test but I have heard stories of recent regarding Officers physically holding down drivers to take their blood.
So what does all this mean about your right to refusal? The most important note is to refuse any breathalyzer. Request a DMV Refusal Hearing within 10 days of the arrest. Request a witness to be present for any test. Seek independent testing upon release from jail at the hospital. Do not consent to your blood being drawn. If the driver refuses, it substantially increases their chances of being found not guilty at trial.
Editor’s Note: Every refusal case is different and will depend on the facts including but not limited to, why the driver was pulled over, how the driver performed on the field sobriety test (refuse all of these), or any statements and admissions to drinking made by the driver, and direct evidence of impairment such as open containers.