I’ve Been Stopped for DWI: What can I Refuse?
Being pulled over by an officer can be a very intimidating thing, people are frightened, officers speak in commanding tones and drivers are often left unsure of what is an order and what is an option. These situations usually lead a pulled over driver to ask: “What can I say no to?”
Generally speaking, you are allowed to refuse any test the officer asks you to perform. In some states, but NOT North Carolina, to refuse certain testing is a crime. Under North Carolina Law you can refuse to be tested. That being said, refusal is not without consequences. You can and should refuse all field tests of any kind. They are designed for failure, and are not going to help you. However, when you get down to the station and you are fully advised about your rights to refuse the Intox EC/IR II there are consequences; you could have your license revoked for a year. The decision of whether or not to refuse the breath or blood test must be made based on the facts of a specific case.
There are two main categories of tests that an officer will ask you to perform (1) field sobriety tests (2) breath/blood tests, the rules governing refusal is different for each.
Refusing a Field Sobriety Test:
Field Sobriety Tests are usually conducted before a suspect has been arrested, they are tools that officers use to create evidence of a suspected drunk driver’s impairment. These tests can be difficult and at times whether or not a person passes can depend on the mood and subjective opinion of the officer. You may always refuse to perform, or continue performing, these tests.
However, North Carolina law expressly allows the state to introduce evidence at trial of the refusal to submit to the tests downtown. Essentially, you are free to refuse the tests but the judge or jury is probably going to hear about that refusal at trial. Depending on the circumstances, it can be beneficial to refuse even if you are a sober driver. The Field Sobriety Tests are difficult to perform and even a fully sober person may have difficulty passing them, refusal eliminates that possibility. It’s worth mentioning that refusing Field Sobriety Tests will not, by itself, prevent the officer from arresting you or a judge from convicting you, it is merely one aspect in a complicated and fact dependent investigation.
Refusing a Breath Test:
If you are arrested for DWI the officer will drive you to the police station or detention center for processing and for testing. Once there, you will be asked to submit to a breath test on the Intox machine. It is this test that provides the formal number for your blood alcohol content at trial. Failing this test (registering a Blood Alcohol Content on .08 or higher) is one of the most difficult pieces of incriminating evidence for a defendant to overcome. Just like with Field Sobriety Tests you are allowed to refuse any breath test the officer asks you to perform. The consequences of refusing on a first offense when you have a valid license are more severe and will have a much bigger impact on your day to day life.
North Carolina is what’s known as an “implied consent” state. This means that when you apply for and receive a North Carolina Driver’s License you are agreeing to abide by a number of terms and conditions, including the condition that you submit to an alcohol test after being arrested for DWI.
It is important to understand that refusing a breath test after arrest is a violation of this legal myth of Implied Consent with the NC Department of Motor Vehicles, it is NOT an additionally criminal charge. The impact of a refusal on the DMV will be addressed further below.
As with a refusal of Field Sobriety Tests, while there may be some benefit in some cases, refusing a breath test will not, by itself, prevent a DWI conviction. By not taking the test the state will not have a specific BAC as evidence but impairment can be shown in a number of different ways, including bad driving, and your mental capabilities.
Refusals and the DMV
As stated above refusing a breath test violates the “implied consent” law. A refusal will trigger a suspension of your driving privilege for one year. To avoid this, you can request a formal hearing in front of the DMV where you can challenge the one-year suspension of your driver’s license. DMV hearings are an involved enough topic that to fully discuss them requires its own blog post but it is likely that you will want an attorney. While this process does look a lot like a criminal trial, the DMV does not have the ability to send you to jail. Their authority is only over your ability to drive in the State of North Carolina. If you are accused of refusing a breath or blood test contact a Great DWI attorney immediately, you will lose your ability to contest the issue if you do not affirmatively ask for a hearing within 10 days of getting a letter from the DMV about the refusal.
Whether or not to refuse any chemical tests during the course of a DWI investigation is a tough question to answer without the specific facts of each case, but it is important to know your rights and options in order for you to make the best possible decisions in your case. Contact us today if you have questions about this complicated area of the law. Put one of our Great DWI attorneys to work for you.