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BREATH TEST

It is easy to understand why a person gets nervous when a police officer asks them to take a breathalyzer test during a DWI stop.

Even though I knew my rights and refused to take the breathalyzer test when I was pulled over others do not, and often the breathalyzer is the number one way that the police officer who pulled you over will try to establish that you were driving while impaired. In many cases the breathalyzer test is the greatest piece of evidence that the state of North Carolina will use against someone when they are charged.

Let’s remember what happens when someone is stopped for a DWI—North Carolina must do more than prove that a person was driving a car while drinking or that they were drinking at all. What they have to prove is that a driver was impaired as the result of their drinking and were unable to drive their car in a safe manner. This is where the breathalyzer is used as the primary piece of evidence to prove your guilt.

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To be considered too impaired to drive safely in the state of North Carolina the state must show that a driver’s Blood Alcohol Content was 0.08% or higher at the time of their arrest. The problem here is that the amount of alcohol one person has to drink to reach this BAC varies widely due to factors like body weight, whether or not they had food in their stomach, and a host of other factors that make proving that someone was impaired difficult for any prosecution.

The state of North Carolina has gotten around this with a statute that sets the level of impairment at 0.08% by measuring your Blood Alcohol Content no matter how many drinks you’ve had and is the standard piece of evidence that will be used against you if you are charged with a DWI.

In North Carolina the way the state goes about determining if you have reached a level of impairment is by having you blow into a breathalyzer machine called and Intoxilyzer 5000 or an Intox EC/IR II. While there are a lot of different breathalyzer machines out there on the market only the Intoxilyzer 5000 and Intox EC/IR II have been approved for use by law enforcement by North Carolina. No other machine can be used.

It is important to understand how these machines work. When someone has consumed ethanol, which is the type of alcohol common to the kind found in beer, wine, or liquor, it enters their blood and that blood passes through their lungs every time they breathe. Some of this blood is collected inside what are called alveoli, which are small sacks in their lungs that help move oxygen and carbon dioxide between the lungs and the bloodstream. If there is alcohol present in the blood it will be collected in these alveoli.

When an office orders you to breathe into a breathalyzer machine he is measuring the amount of alcohol in your “alveoli air” that is released every time you exhale. He will use this to determine whether or not a driver has reached the point of alcohol consumption that would deem them unable to properly operate their vehicle.

Like I mentioned before, it is important that you do not provide the officer who pulled you over during your DWI any chance to gather evidence to establish “probable cause” for your arrest, whether it is evidence gained from a field sobriety test or by breathing into a breathalyzer. You have a right to refuse any test by the rights you are provided as a citizen of North Carolina and the United States of America, but it should be understood that there are still risks to saying no to any of these tests.

If you have been charged with a DWI before and you are charged for a second time, refusing an officer’s demands to perform either a field sobriety test or a breathalyzer can be used as evidence against you in court and may often be enough to convict you of a DWI. When this happens you need to have the services of a great defense attorney ready to represent you so that you are treated fairly. My neighbor and I both relied on Dummit Fradin when we were charged with our DWI offenses, and if you have been charged a second time it is so important that you have the best representation in your corner.

So I’ve told you the story of my DWI stop, how I exercise my rights to refuse many of the tests and procedures police would have used to incriminate me, and we’ve touched on why you should also refuse these tests if you are stopped for a DWI. Even though you are well within your rights to refuse these tests, often this will not stop an officer from arresting you at the scene, so what we will discuss next is incredibly important to make sure that you are treated correctly by the state of North Carolina when you go to court.

We need to talk about what happens and what you should do when you are arrested for DWI.

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