Under North Carolina law, when a police officer charges you with Driving While Impaired (“DWI”), they normally bring you in front of a breath test machine to obtain a sample of your breath alcohol concentration. Prior to administration of the test, the officer has to read you a set of rights known as Implied Consent Rights. These include the right to call a witness or attorney to witness the breath test and to advise you regarding the breath test, the right to obtain an independent chemical test upon being released from the jail, and the right to refuse the breath test altogether. They also tell you that if you choose to refuse, you face a mandatory suspension of your NC driving privileges for a period of one year.
Up until the past five or so years, normally when a Defendant refused the test, that was the end of it. It was sort of like picking your poison. If you thought you were impaired or knew you were impaired, you would simply refuse the test to prevent the State from having the best and most direct evidence of impairment, a BAC reading, and would bite the bullet on the DMV one year suspension for the refusal. However, police officers became wise to this cat and mouse game. They were losing good cases due to having an insufficiency of evidence to use at trial. Therefore, most of the time, police officers now will compel a blood draw at the local hospital when someone refuses to provide a breath sample. The process for compelling a blood draw under North Carolina law and under a 2013 U.S. Supreme Court case called Missouri v. McNeely is that the officer simply goes and gets a search warrant signed by a local magistrate (who almost always signs the warrant) and takes the Defendant down to the hospital and obtains a blood sample.
The downside of all this is tremendous. For starters, the blood test tends to come back slightly higher than breath tests. Also, the whole point of refusing and essentially committing yourself to a loss of license for one year was to keep the BAC reading out of evidence. Now the Defendant is stuck with a BAC reading AND the one year suspension for the refusal. So the whole benefit of refusing has been lost. In fact, I see many officers even tell my clients that if they refuse the breath test, they are definitely going to get the blood draw so they might as well blow in the machine. I have seen the number of refusals go way down since officers have started compelling blood draws. To add insult to injury, you end up getting stuck with the hospital bill for the blood draw that the police officer forced upon you.
Having said all of this, the officer has to follow strict protocol in order for the results of the blood draw to come in as evidence against you in your case. Furthermore, you can challenge the refusal on legal grounds with DMV and potentially avoid that severe one year long penalty.
If you have been charged with Driving While Impaired in Charlotte North Carolina or any other counties in North Carolina, don’t hesitate to contact our experienced DWI attorneys to see if you may have a possible evidentiary challenge to the blood results or the refusal or to see if you have any other defenses at your disposal.
