Driving while impaired is an implied consent offense in North Carolina, which means that when a person applies for their driver’s license with the DMV they give their implied consent to submit to chemical analysis upon arrest for DWI. However, G.S. 20.16-2(a) requires that before an officer conducts any chemical analysis, he must informed the person who has been charged that, under implied-consent law, the person can “refuse any test.” G.S. 20.16-2 goes on to provide that if a person “willfully refuses” to submit to chemical analysis, the person’s driver’s license will be revoked for one year. In most cases, it is obvious if a person willfully refuses the test, but in other cases, it is less clear.
The North Carolina Supreme Court held in Etheridge v. Peters (1980) that a willful refusal occurs when
a motorist: (1) is aware that he has a choice to take or to refuse to take the test; (2) is aware of the time limit within which he must take the test; (3) voluntarily elects not to take the test; and (4) knowingly permits the prescribed thirty-minute time limit to expire before he elects to take the test.
In Etheridge, the driver “was advised of his statutory rights relative to the breathalyzer examination.” He asked to call an attorney and was at first unsuccessful at reaching one. He eventually reached one. At the end of a twenty-minute period and again at the end of a thirty-minute period, the officer offered the test. The driver responded that he wanted to wait for his attorney to arrive. When the attorney arrived, he conferred briefly with the driver and then the driver asked to take the test. At that point, thirty-five minutes had elapsed since the driver was advised of his rights, and the officer refused to administer the test. The court concluded that “[t]here is nothing whatsoever in the evidence to indicate that his decision to wait the arrival of an attorney before submitting to the test was anything but a "conscious choice purposefully made" and the driver’s actions constituted a “willful refusal” to submit to testing under the statute.
The North Carolina Court of Appeals has looked at this issue a couple of times as well. In Tedder v. Hodges (1995), a driver was arrested for DWI. The officer testified that the driver attempted to blow into the instrument five or six times, “but that "when he got the tone to start, he would stop blowing."” The officer also had to instruct the driver several times to keep his fingers out of his mouth or he would be marked as a refusal. According to the officer’s testimony, the driver was generally cooperative and the officer was unable to determine if the driver “physically could not blow into the machine or if he was intentionally not blowing.” The driver argued that he was unable to blow because he suffered from bronchitis and he was putting his fingers in his mouth to bite his nails because he was nervous.
The trial court concluded that the driver willfully refused to submit to testing. On review, the Court of Appeals held that “[w]hile this evidence could have led the trial court to determine that petitioner did not willfully refuse to blow into the breathalyzer machine, we conclude that there was still competent evidence to support the trial court's conclusion that petitioner willfully refused” because “[f]ailure to follow the instructions of the breathalyzer operator is an adequate basis for the trial court to conclude that petitioner willfully refused to submit to a chemical analysis.”
In 2009, the Court of Appeals looked at the issue of willful refusal again in Steinkrause v. Tatum. In that case, a driver was arrested for DWI after being involved in a car accident. The driver attempted to blow four times and “would blow a little bit, say that it hurt her neck, and then stop.” The officer testified that “he believed Petitioner was physically able to provide a sample of her breath” but that “he did not observe anything that made him believe Petitioner was not making a valid attempt.”
The trial court concluded that the driver willfully refused to submit to testing and affirmed the revocation of her license. On appeal, the Court of Appeals noted that the driver was able to submit to a roadside breath test. Also of importance, the court noted, was that the officer “did not observe any coughing, wheezing, or shortness of breath on the part of Petitioner.” The Court of Appeals held that the trial court’s conclusion was supported by adequate evidence, even though there was evidence to the contrary, because with contradictory evidence, the trial court “was in a better position to determine the credibility of the witnesses.”
One of the statutory rights afforded a driver by G.S. 20-16.2(a)(6) is the right to “call an attorney for advice and select a witness to view the testing procedures.” However, subsection (a)(6) goes on to specify that “the testing may not be delayed for these purposes longer than 30 minutes from the time you are notified of these rights.” The driver “must take the test at the end of 30 minutes even if you have not contacted an attorney or your witness has not arrived.” The Court of Appeals looked at this statutory provision in Powers v. Tatum (2009). In that case, a driver requested a witness to be present during testing and claimed that he was willing to submit to testing with a witness present. The court held that the driver “was informed of his statutory rights, and given the opportunity to exercise those rights.” He was “was kept informed of the thirty-minute time period as it elapsed, made aware of the choice he had to take or refuse the test, and provided multiple opportunities to submit to the test.” His failure to submit to testing during that thirty-minute period constituted a willful refusal even though his requested witness was not present because “[a]fter being informed and kept apprised of his rights, petitioner was given the option to take or refuse the Intoxilyzer test, and the purpose of the statute was thus fulfilled.”
Furthermore, the Court of Appeals held in White v. Tippett (2007) that if a driver does not request to call an attorney, the officers are not obligated to let the thirty-minute period expire before administering the test and marking a willful refusal. In White, the driver agreed to submit to testing but twice failed to follow instructions. After the second failure, the officer marked the driver as a willful refusal. On appeal, the driver argued that even though it was not clear whether she wanted an attorney, “she should have been given the full thirty minutes to decide whether she wanted an attorney.” The court rejected this argument stating that “[o]nly where a petitioner intends to exercise her rights to call an attorney and expresses those rights clearly to the officer does the thirty-minute grace period apply.” Because the driver did not clearly indicate her desire to call an attorney, “the officer was not required to wait for the full thirty minutes before administering the test.”
If you have been arrested for DWI, contact a lawyer at Rosensteel Fleishman, PLLC (704) 714-1450.