As you might expect, breathalyzer refusal is a big issue in DWI defense. In North Carolina, you have already given your “consent” to be tested merely by driving on the road. Accordingly, it is a separate offense in itself to willfully refuse to participate in a requested breathalyzer test when a police officer has probable cause to believe that the person is guilty of DWI. Of course, this “implied consent” civil violation is less serious than a DWI criminal conviction. However, the State can elect to charge a person who willfully refuses a breathalyzer test with DWI as well. The question, “Is it bad to refuse a breathalyzer?” is a difficult one to answer.
On the civil side (driver’s license or driving privilege), you can challenge the State’s charge of “willful refusal.” You will have a hearing where you can put forth evidence that you attempted to participate but were unable to do so. A truly willful refusal to take the breathalyzer test will result in a one year loss of license for North Carolina license holders, or loss of driving privileges in North Carolina for out of state defendants. You can seek a limited driving privilege (LDP) after six months, but that is a long time to wait to have your driving privileges restored.
Many judges will refuse to grant same under these circumstances. On the criminal side, the prosecution can use a refusal as evidence against you in proving intoxication. They will argue that such refusal is an indication of guilt. Of course, the counter argument is that this person does not trust the breathalyzer machine or this so called “science” and exercised their Constitutional right to refuse.
So Should You Take the Breathalyzer Test?
Should you give the State more evidence to use against you or give up your ability to drive to work or school for up to a year? Of course, the decision is yours, and there is no lawyer there to guide you. But, you have to live with the consequences either way. Unfortunately, there is no easy answer here. If you choose to refuse the test, the officer can get a search warrant and draw your blood. Furthermore, you face a one year suspension of your license or driving privileges. In addition, timing is a real factor. For example, if you have recently had a drink, the alcohol takes time to get into your bloodstream. As a result, waiting could actually cause a higher reading. On the other hand, if you stopped drinking earlier that night, waiting might help.
Try not to worry. After all, this is what we do. Either way, we can look at everything once you come into the office. Just remember breathalyzer refusal is just one part of your case. Then once we have all of the evidence, we can talk about options. Call now and let’s start your case.