We’ll presume that the officer is determined to give you a breath test even though you’ve denied the grounds for establishing probable cause by refusing to perform any field sobriety tests. The first thing that will happen after your North Carolina DWI stop is that you’ll be advised of your rights before blowing into the Intox EC/IR II downtown. These rights include consulting with a lawyer and having a witness present when you blow. You are allowed to call both. If they give you the old “one call” line, go ahead and protest, but to yourself, be glad – if they refuse to let you call for a witness because you’ve already called your lawyer, or vice versa, they are denying you your rights under both the United States and North Carolina constitutions.
If you reach a lawyer, be guarded in what you say. Because you are in the breath test room, there is no privilege to your side of the conversation. Therefore, don’t call your family lawyer. It could mess you up. Call an experienced DWI attorney who will know how to ask you a series of “yes-or-no” questions that will assess the situation without making you say damning things which could be overheard.
For instance, a good DWI attorney will start by determining how much you have had to drink: “Were you drinking hard liquor?” “No.” “Were you drinking beer?” “Yes.” “Did you drink more than one beer?” “Yes.” “Did you drink more than three beers?” “Yes.” “Did you drink more than five beers?” “No.” “Did you drink four beers?” “Yes.”
Your lawyer should also make sure you have called for a witness and that you wait the full 30 minutes you are entitled to for a witness to arrive. Even if you can’t get someone to agree to witness your test, don’t tell that to the breath test operator. Leave the issue open ended so that someone may be on the way and take the full 30 minutes, but avoid lying. It may be just long enough for your blood alcohol level to fall below .08, if you’re on the border.
The lawyer should also walk you through a series of questions to learn your previous legal history. He/she will ask questions like, “Have you ever been arrested for DWI before?” and “Was it within the past three years?” Without making you say anything but “yes” and “no” in front of law enforcement, the lawyer will get a pretty good picture of your condition and your legal status, because both need to be factored into the biggest decision you have to make: to blow or not to blow.
If you blow, you’ll be giving the state evidence that it can use to convict you, even if you show no outward sign of impairment. But if you don’t, you’ll lose your license for a year. Because this is a civil in nature by the DMV, you can’t get limited driving privileges until at least six months later. Whether to blow or not, also depends on how much you’ve had to drink. If you were watching your consumption, and believe that you’re a .08 or below, you may want to blow, because a skilled DWI attorney can fight a .08 in court.
However, if you think that, based on how much you’ve had to drink, you’re clearly over the limit, keep in mind some of these guidelines:
- If there was someone under 18 years old in the car with you, you may not want to blow. Why? Because having a passenger under 18 years old is a grossly aggravating factor when it comes to sentencing. As such, it means that you will lose your license for a year at a minimum if you are convicted and you will be sentenced at Level One sentencing. Since blowing can only give them the evidence they need to convict you, and since you’re going to lose your license for a year anyway if you are convicted, you have nothing to lose and something to gain by not blowing. Sure, you’ll lose your license for a year just like you would have if you were convicted, but you may avoid the DWI conviction on your record.
- If you have not had a DWI in the past seven years and you have a valid driver’s license, take the test. Yes, you may be giving the state the evidence it needs to convict you if the arrest stands up in court (since you did everything you could to keep the officer establishing probable cause). Even if you are convicted, you’ll be eligible for limited driving privileges and you are not looking at mandatory jail time. The alternative (to refuse to blow) means you’ll lose your license for a year.
- If you have a DWI within three years, you may not want to blow. If you’re convicted you’ll lose your license for four years, and you won’t be allowed to petition for driving privileges for two years.
- If you have a prior DWI within seven years but it was at least three years ago, you have a tougher choice. If you’re convicted and you have a DWI conviction within the past seven years, you will lose your license for a year, so it’s pretty much a wash with the penalty for refusing to blow.
- If you were caught driving with your license revoked, you may not want to blow. The judge isn’t going to give you privileges under these circumstances, anyway.
- If you blow, request an independent test after you are finished. Preferably, ask to be taken to an emergency room to have blood drawn for a blood analysis. This may take a while, possibly giving time for your blood alcohol level to drop below .08. Since the blood test can be argued in court as being more accurate than a breath test, you could win your case. You will have to pay for the blood test yourself. Nowadays most hospital emergency rooms and 24 hour prime care facilities accept credit cards. If the officers are reluctant to take you to have your blood tested, remind them that it is your right under G.S. 20-139.1.
When you request a blood test, keep one thing in mind: Do not sign a consent form offered by the officer before having your blood tested. That consent form is only needed if the state wants to test your blood. In this situation, you want to test your blood, not the state, and you don’t want the state to know the results. Therefore, do not sign the form, even if the officer says you have to sign it to have your blood tested. Likewise, don’t be fooled into signing it by being told that if you sign the form, the state will pick up the tab for the test. Yes, it will pick up the tab, but it will pick up the results, too. Finally, do not let any county paramedics or any other “official” personnel draw your blood right there at the station. You are entitled to an independent test of your blood.
Another option is to request that you be taken to another agency that has an Intox EC/IR II to be given an independent test on that machine by a third party. You will have to pay for this. Additionally, the state may refuse you access to another machine, and argue that you have no legal right to use the state’s equipment in gathering evidence in your behalf, but it costs them nothing to give you another test at a different location.
Having an independent breath test offers advantages and disadvantages. The advantage is that if the machine reads more than a .02 difference in your blood alcohol level, you may have a good case for throwing out the Intox results as being unreliable. The disadvantage is that having a second breath test denies you the opportunity to contest the accuracy of the Intox in comparison with a blood test.
