Endless people make common mistakes during a DWI stop as a result of not knowing their rights (click here to learn more). This blog seeks to inform people of their rights to refuse certain things during a DWI investigation. Most people have far greater rights than they realize. We have previously written a blog (here) on knowing your rights during a police encounter. This blog will focus specifically on your rights during a DWI encounter.
What you can and cannot refuse during a DWI investigation depends largely upon what stage you are in. We will break these stages down into the pre-arrest stage (DWI stop) and the post-arrest stage.
This blog is intended for informational purposes only and is not a substitute for the advice and counsel of a DWI attorney.
DWI Stop (Pre-Arrest)
Producing License– drivers cannot refuse to produce their driver’s license during a lawful traffic stop.
Stepping Out of Vehicle – you cannot generally refuse to step out of your vehicle if a law enforcement officer orders you to do so during a lawful stop. Note that passengers also may be ordered to step out of the vehicle for officer safety. Officers may not give this order simply for the purpose of prolonging the stop.
Field Sobriety Tests – you can refuse to perform any field sobriety tests. These tests are very difficult (even for a sober person) – some could say they are actually designed for participants to fail. The good news is your NEVER have to take these tests. They are always optional. It is your right to decline these tests. If you do refuse these tests, you should consider doing so in a calm and polite manner.
Portable Breath Test (Breathalyzer) – You can refuse the roadside breath test. Your license will NOT be suspended for refusing a breathalyzer pre-arrest. See below for information on post-arrest breath tests.
Statements – You can refuse to make statements during a DWI stop. This includes refraining from answering common law enforcement questions such as, “where are you coming from?” or “how much have you had to drink?” You do not have to talk to the police and you certainly never have to make incriminating statements to the police.
Searches – You can refuse to give consent to searches during a DWI stop.
Post-Arrest
Breathalyzer – you cannot refuse the Intoxilyzer breath test without consequences after you are arrested, however, you do have the right to refuse this test. If you refuse this test, your license will be revoked for one year. Your refusal can also be used as substantive evidence against you during your DWI trial. Further, the law enforcement officer will often obtain a warrant for your blood. Note that this test will take place at the police station or Law Enforcement Center and will NOT take place roadside (remember you can refuse roadside breath tests). For more information on breathalyzer refusal, click here.
Statements – you can still refuse to make any statements. We advise all arrestees to invoke their right to remain silent and invoke their right to an attorney by stating clearly something to the effect of: “I wish to remain silent and I wish to invoke my right to an attorney”.
Searches – you cannot refuse a search of your person after arrest.
If you have been charged with DWI in North Carolina or DUI in South Carolina, contact us to discuss your options.