Under North Carolina law, the simple act of operating a vehicle on a public roadway within the state subjects the driver to the state's "implied consent" law. Essentially, this law dictates that anyone driving in North Carolina has already given consent to chemical analysis or testing - such as a breathalyzer - if ever arrested for driving while intoxicated (DWI).
Importantly, this testing may be requested as long as the arresting officer has reasonable grounds to believe the driver is impaired by alcohol, but, if the driver refuses to submit to testing, he or she may face a penalty. For instance, a driver who wrongfully refuses a breathalyzer in North Carolina may have his or her license revokes for 12 months - although if it is the driver's first refusal offense in the last seven years, he or she may be able to apply for limited driving privileges after six months.
Testing procedures in North Carolina
However, it is important to note that police must adhere to a strict set of guidelines when administering chemical testing following a DWI arrest. For instance, before a test can be given, the police officer or chemical analyst must first give the arrested driver written and oral notice that:
- The driver has the right to refuse to be tested
- The driver's license will be revoked for one year if he or she refuses
- The driver's refusal, or the test results, will be admissible evidence at trial
- The driving privileges of the driver will be immediately revoked if the test indicates a blood alcohol concentration (BAC) of 0.08 percent or more, or, if the driver is under 21-years-old, any alcohol concentration
- The driver has the right to call an attorney and select a witness to view the testing procedures, although testing may not be delayed for more than 30 minutes for these purposes
- The driver may seek his or her own testing after being released
Importantly, however, even after a driver has been accused of an improper refusal, he or she can still request a hearing before the North Carolina DMV to challenge the allegations - but this request must be made within 10 days, after which, the driver loses this right. Additionally, this hearing can only address a limited number of issues, such as whether the driver actually willfully refused testing or whether the arresting officer had reasonable grounds to believe the driver was intoxicated.
Legal assistance is often needed
Refusing chemical testing following a DWI arrest can be a tricky situation. For example, while a driver may think that he or she can avoid a DWI conviction by refusing a breath test, that is not always the case as the driver can still be charged with drunk driving based upon other evidence collected by police. Moreover, as mentioned above, a refusal can actually be used as evidence against the driver in a subsequent criminal proceeding.
Accordingly, if you are currently facing DWI or refusal charges in North Carolina it is often best to consult with an experienced criminal defense attorney. The failure to retain qualified legal counsel may result in a longer license suspension as well as jail time if ultimately convicted.