Breathalyzer Refusal

Willful Refusal of chemical analysis when charged with DWI in North Carolina

In North Carolina, you will automatically lose your NC driver’s license for one year if you refuse to submit to a breathalyzer test (or chemical analysis) upon being charged with DWI. This is often called “willful refusal.” If you refuse a breath test after being taken into custody for DWI (e.g., after you have been charged with DWI), the DMV will automatically suspend your license for one year. This suspension will occur regardless of whether or not you are ultimately convicted of DWI.

When is a person required to submit to a breathalyzer test (or other chemical analysis)?

A person is not required to submit to a breathalyzer test prior to being charged with DWI (or other implied-consent offense). A person is “charged” with an offense if the person is arrested for the offense, or if criminal process for the offense has been issued. Refusing a breath test in the field, prior to being charged with DWI, is NOT a willful refusal.

Often, prior to being charged with DWI, law enforcement officers ask a DWI suspect to consent to a field breathalyzer test. This often occurs before the police officer has established probable cause to arrest the suspect for DWI. At this stage in the process, refusing to consent to a breathalyzer test is not a willful refusal. If you have not been given notice that you have been charged with an implied-consent offense (in this case, DWI), you are not yet in “willful refusal” territory. Prior to being charged with a DWI, it is your right to refuse to consent to a field breathalyzer test.

Is such a suspension lawful?

Yes. Under North Carolina law, any person who drives a vehicle on a highway or public vehicular area gives implied consent to a chemical analysis if that person is charged with an implied-consent offense. Any law enforcement officer who has reasonable grounds to believe that the person charged has committed the implied-consent offense (in this case, DWI) may obtain a chemical analysis of the person.

Under the implied-consent law, you can refuse any test, but your driver’s license will be revoked for one year. Even if you refuse the test, an officer may compel you to be tested under other laws.

Can this be used against be at my DWI trial?

Yes. The test results, or the fact of your refusal, will be admissible in evidence at your DWI trial.

What if my DWI is dismissed or I am acquitted of the DWI?

If your license is suspended for “willful refusal,” it does not matter how your DWI charge is resolved. Your DWI could be dismissed or you could be acquitted at trial, and you still will be forced to face the one-year suspension.

Witnesses

You are entitled to select a witness to observe the breathalyzer procedure. You may call an attorney for advice and select a witness to view the testing procedures remaining after the witness arrives. However, the testing may not be delayed for these purposes longer than 30 minutes from the time you are notified of these rights. You must take the test at the end of 30 minutes. You must take it even if you have not contacted an attorney or your witness has not arrived.

If you have questions about a DWI breathalyzer test that you were asked to take or a willful refusal in NC, contact a criminal defense attorney.