Can I Refuse a Breathalyzer Test? Are There Penalties for Refusing to Blow?

Immedicately following a DWI arrest in Charlotte, the arresting officer will take you to the police station and ask you to blow into a machine, specifically the Intoximeter Model Intox EC/IR II, to determine your blood alcohol concentration (BAC). Although the officers will likely make you feel like you have to blow, you are not required to submit a breathalyzer test. It should be noted that this test differs from the field sobriety tests and preliminary breath tests the officers asked you to submit to on the side of the road. For these, we strongly suggest you refuse them, as the results will only be used against you. 

By refusing, you could potentially be strengthening your case by not giving the police access to the most incriminating piece of evidence against you in a DWI case; that is, your BAC. However, if you do not provide a breath, blood, or urine sample at this time, it will be considered a refusal.

What Qualifies as a Refusal in a DWI Case?

Under North Carolina law, a person will be deemed to have "willfully refused" if he or she has been asked to submit to a chemical analysis such as a breath, blood, or urine sample and has been advised of his or her right to refuse the test, does not provide a sample, or allows the prescribed time limit in which the test must be taken to expire.

The most common refusal is when a person simply declines to blow into the machine, however, there are many more scenarios in which an officer can allege that you refused. "Allege" is the key word here. For example, an officer can accuse you of refusing for simply not listening to his or her instructions.

In light of the significant consequences that can come along with a refusal, we wanted to highlight the level of subjectivity involved in determining whether or not a refusal occurred. For reference, we've provided some examples from old DWI cases in North Carolina in which a person was accused of refusal:

• Declining to remove an object from your mouth at the request of the law enforcement officer
• Smoking in violations of instruction not to
• Being unruly so that the proper procedures could not be completed
• Refusing to blow until your attorney arrives after the 30 minutes allowing an attorney or witness to arrive has expired
• Failure to provide an adequate sample of your breath
• Failure to provide a second sample of your breath or a third sample if first two samples were not within 0.02 of each other

Unfortunately, in North Carolina it is very easy for an officer to allege that you refused.

Penalties for Breathalyzer Refusal in Mecklenburg County

Even though you are not legally required to provide a breath or blood sample after an DWI arrest, the laws of North Carolina practically force you to do so by imposing strict penalties including both criminal and civil penalties. Additionally, an officer can obtain a search warrant and compel you to provide a sample of your blood. In this scenario, the State not only has your BAC but you also face the consequences of refusing.  

Criminal Consequences for Refusal in DWI Cases (N.C.G.S. 10-139.1(f))

During your DWI trial, the State will use your refusal against you in court. The prosecutor can provide evidence to the court that you refused to submit to a chemical analysis and they will argue that your choice (to exercise your legal right) to refuse to submit a breath, blood, or urine sample is an indication of guilt.

N.C.G.S. 20-139.1(f) states “if any person charged with an implied-consent offense refuses to submit to a chemical analysis or to perform field sobriety tests at the request of an officer, evidence of that refusal is admissible in any criminal, civil, or administrative action against the person.”

License Suspension for Refusal in DWI Cases (N.C.G.S. 20-16.2)

More serious than the criminal implications described above are the sanctions imposed by the North Carolina DMV. When you refuse to submit to a chemical analysis, your driver’s license will be suspended for a minimum of one full year. Click here for more details on license suspension penalties for drunk driving charges.

We understand the devastating impact associated with not being able to drive for 12 months and can advise you of your options for challenging a license revocation. Our attorneys can appeal your revocation before the DMV and, if necessary, a Superior Court Judge. Additionally, we can help you apply for a limited driving privilege if you qualify. The time frame to appeal your driver’s license revocation is very short.

Can the Refusal be Challenged or Dismissed?

There are ways to challenge a refusal and potentially have it dropped completely.

Police officers are required to inform you of your rights and must follow strict procedures when administering tests to determine your BAC. If the officer fails to properly inform you of your rights or does not properly conduct the test, your refusal can be dismissed. Additionally, if the officer did not have reasonable suspicion to stop you or probable cause to arrest you, your refusal can be rescinded.

Have You Been Arrested for a DWI in Charlotte, NC?

If you are facing DWI charges, you need to speak with an experienced criminal defense attorney as soon as possible. Please contact us online or call our Charlotte office directly at 980.207.3355 to schedule your free consultation.