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Refusal to Submit to a Breathalyzer in North Carolina

If you are lawfully arrested for DWI in North Carolina, you have the right to refuse to submit to a Breathalyzer test.  However, refusing to submit to a Breathalyzer comes with serious consequences.  In North Carolina, when you apply for your driver’s license from the DMV, you give your implied consent to submit to breath and blood tests.  G.S. 20-16.2(a) provides that:

Any person who drives a vehicle on a highway or public vehicular area thereby gives consent to a chemical analysis if 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 may obtain a chemical analysis of the person.

G.S. 20-16.2(a) goes on to require that:

Before any type of chemical analysis is administered the person charged shall be taken before a chemical analyst authorized to administer a test of a person's breath or a law enforcement officer who is authorized to administer chemical analysis of the breath, who shall inform the person orally and also give the person a notice in writing that:

(1)        You have been charged with an implied-consent offense. Under the implied-consent law, you can refuse any test, but your drivers license will be revoked for one year and could be revoked for a longer period of time under certain circumstances, and an officer can compel you to be tested under other laws.

(2)        Repealed by Session Laws 2006-253, s. 15, effective December 1, 2006, and applicable to offenses committed on or after that date.

(3)        The test results, or the fact of your refusal, will be admissible in evidence at trial.

(4)        Your driving privilege will be revoked immediately for at least 30 days if you refuse any test or the test result is 0.08 or more, 0.04 or more if you were driving a commercial vehicle, or 0.01 or more if you are under the age of 21.

(5)        After you are released, you may seek your own test in addition to this test.

(6)        You may call an attorney for advice and select a witness to view the testing procedures remaining after the witness arrives, but 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 even if you have not contacted an attorney or your witness has not arrived.

G.S. 20-16.2(a)(1) defines an implied-consent offense as “an offense involving impaired driving, a violation of G.S. 20-141.4(a2), or an alcohol-related offense made subject to the procedures of this section. A person is "charged" with an offense if the person is arrested for it or if criminal process for the offense has been issued.”

So even though a person has impliedly consented to submit to a Breathalyzer when that person applies for his driver’s license with the DMV, that person has the right to refuse the Breathalyzer.  What happens if that person refuses to submit to a Breathalyzer after a lawful arrest for a DWI, which is an implied-consent offense under North Carolina law?  Under G.S. 20-16.2(c1),

Whenever a person refuses to submit to a chemical analysis, … the law enforcement officer and the chemical analyst shall without unnecessary delay go before an official authorized to administer oaths and execute an affidavit(s) stating that:

(1)        The person was charged with an implied-consent offense or had an alcohol concentration restriction on the drivers license;

(2)        A law enforcement officer had reasonable grounds to believe that the person had committed an implied-consent offense or violated the alcohol concentration restriction on the drivers license;

(3)        Whether the implied-consent offense charged involved death or critical injury to another person, if the person willfully refused to submit to chemical analysis;

(4)        The person was notified of the rights in subsection (a); and

(5)        The results of any tests given or that the person willfully refused to submit to a chemical analysis.

The statute then requires the officer to mail this affidavit to the DMV.  Under G.S. 20-16.2(d), when the DMV receives this affidavit, the DMV

shall expeditiously notify the person charged that the person's license to drive is revoked for 12 months, effective on the tenth calendar day after the mailing of the revocation order unless, before the effective date of the order, the person requests in writing a hearing before the Division.

The statute above provides that the only way to avoid this automatic one year suspension of your driver’s license is to make a written request for a hearing within ten days of the date of the revocation order.

If the person properly requests a hearing, the person retains his or her license, unless it is revoked under some other provision of law, until the hearing is held, the person withdraws the request, or the person fails to appear at a scheduled hearing.

What happens at this hearing?  The purpose of the hearing is for the hearing officer to examine the statements set forth in the affidavit that the officer signed and sent to the DMV.  The statute allows the hearing officer to “subpoena any witnesses or documents that the hearing officer deems necessary.”  Also, the “person may request the hearing officer to subpoena the charging officer, the chemical analyst, or both to appear at the hearing if the person makes the request in writing at least three days before the hearing” and the “person may subpoena any other witness whom the person deems necessary.”

G.S. 20-16.2(d) provides that the “hearing shall be conducted in the county where the charge was brought, and shall be limited to consideration of whether” the statements set forth in the officer’s affidavit are true.  If the hearing officer determines that any of the allegations (other than the allegation of critical death or injury to another) is not true, then the revocation is rescinded.  If all of the allegations (other than the allegation of critical death or injury to another) are found to be true, then the revocation is sustained.

In addition to the automatic one-year suspension, another consequence of a refusal to submit to a Breathalyzer is that the person must wait six months before being eligible for limited driving privileges.  Ordinarily, a person charged with a DWI may apply for privilege of driving to work or school (as well as a few other places) after 60 days.  Under G.S. 20-16.2(e1), a person who refuses to submit to a Breathalyzer must wait for six months of license suspension before applying for this privilege.

A refusal to submit to a Breathalyzer might prevent the prosecution from having a specific result of a person’s blood alcohol content.  However, the prosecution can use a person’s refusal as evidence of that person’s impairment at trial.  G.S. 20-139.1(f) states that “If any person charged with an implied-consent offense refuses to submit to a chemical analysis or to perform field sobriety tests at the request of an officer, evidence of that refusal is admissible in any criminal, civil, or administrative action against the person.”

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