After you are arrested for a DWI, you will usually be brought to the county jail where the arresting officer will bring to the intoxilyzer room. On DWI Checkpoint weekends, the Charlotte Mecklenburg Police Department (CMPD) sometimes employs a fully mobile breathalyzer unit in a converted recreational vehicle. The “intox room” is where the breathalyzer machine is located. Before testing, the officer will read you your “implied consent rights.” Afterwards, you will be asked to sign a form indicating that you have been informed of these rights.

N.C.G.S. 20-16.2 Notice Implied Consent Statute.

(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.

Intoxilyzer Machine

(2) Repealed by Session Laws 2006‑253, s. 15, effective December 1, 2006, and applicable to offenses committed on or after that date.

(3) The test results, or the fact of your refusal, will be admissible in evidence at trial.

(4) 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.

(5) After you are released, you may seek your own test in addition to this test.

(6) 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.

What do these “rights” actually mean?

Simply put, you “impliedly” give your consent to be tested for impairment by driving on North Carolina roads. In DWI arrests, there are two different elements. There is the criminal offense which gives you “rights” under the Constitution to remain silent and not incriminate yourself. In this arena, you should always politely decline to participate in any investigation against you. However, there is also a civil side which deals with the “privilege” to drive. Here, there is no protection against self-incrimination. If you refuse to give a breath sample, North Carolina law now gives the police the authority to take you to a medical facility and forcibly draw a blood sample for testing. No other procedure or warrant is necessary. And, your ability to drive will be taken away for one (1) year. After six (6) months, you can apply for a limited driving privilege (LDP), but some judges will not approve an application under these circumstances.

One aspect of the law that may prove helpful is the requirement that the officer must give you a chance to call a lawyer for advice or a witness to observe the testing procedure. The waiting time and delay in testing is up to 30 minutes, but this time period may prove crucial as your body continues to process any alcohol in your system. As you can see, there is immediate punishment even before conviction if you refuse to submit to the breathalyzer. The only advantage to refusing is that you do not give the State a BAC reading, thereby making it tougher to prove impairment. After you are subsequently booked and released on bond, you have a limited time period to gather evidence for your own defense. If you have a witness, they may be in a position to testify later as to how drunk or impaired you were after release. It is better to have an objective witness if possible. Spouses and close friends are expected to testify favorably, and thus, their descriptions will probably be sharply questioned by judges and/or juries. However, one very piece of probative evidence which you should consider is to have your blood independently tested right after release at an urgent care facility or hospital to challenge your DWI.