Refusals
In North Carolina, when you are arrested for DWI and transported to provide your evidentiary breath test, you do not have to blow. You may refuse to submit to a chemical analysis of your breath. Understand, however, that North Carolina is an implied consent state. This means that if you refuse to submit to the breath test (the evidentiary breath test, not the roadside Alcosensor test), your license will be suspended for 12 months.
There are several advantages and disadvantages in refusing to submit to a chemical analysis. The biggest advantage in refusing is that the state will lack the critical evidence they need to convict you of DWI. How can the state prove that you were per se 0.08 or higher without chemical analysis results? The short answer is that this is very hard. Instead, the state will probably have to prove "appreciable" impairment.
In North Carolina, a person may be convicted of a DWI (even without chemical analysis results) if the state can prove that the person's bodily or mental faculties were appreciably impaired at the time of driving. Appreciable has been defined by case law as meaning noticeable and measurable; not necessarily "fall down drunk." To prove appreciable impairment, the police officer must usually testify both as to his observation of the suspect's physical condition and the suspect's bad driving. If the state cannot prove that the suspect was driving poorly, they may not have a very strong case.
A big disadvantage of refusing the breath test is that (1) your license will be suspended, and (2) the officer may get the results they need anyway through a blood draw at the hospital. As I stated above, when you refuse to provide a breath sample, or continuously provide such poor samples that the chemical analyst believes you are refusing, the breath test will end, and the Intox EC/IR II will print out a ticket that states REFUSAL. Once the DMV learns of the refusal, your privilege to drive will be suspended for a 12 month period. At this point, not only will you have a refusal, but as described in the Search Warrant for Blood section, the officer may decide to take you to the hospital and draw your blood for chemical analysis.
If there is a refusal, it is essential that the driver make a request with the DMV for a hearing within 10 days of the refusal. During this hearing, the driver is able to challenge the refusal with DMV. At the very least, this will place a temporary hold on the license suspension pending the hearing.
There are two primary ways to win a DWI hearing: (1) the officer fails to appear, and (2) the officer appears but cannot prove that he had probable cause to make the arrest. The first scenario is quite common. A lot of police officers are unable to attend DMV hearings due to scheduling conflicts. Some officers simply disregard DMV administrative hearings and do not show up. Either way, if the officer fails to appear, the DMV will have no proof that the driver refused, and the driver will most likely win the hearing. Additionally, if the officer appears at the hearing but fails to provide the DMV administrative officer with sufficient proof that he had probable cause to make the arrest, the driver may win the DMV hearing. There is one easy way, however, to lose a DMV hearing: don't show up. If you request a DMV hearing regarding a refusal and do not appear, you will lose your hearing and your license will be suspended for a 12 month period.
Making the decision to refuse or submit to the chemical analysis is personal, highly dependent on the facts of the case, and dependent on whether you are willing to have your license suspended. Ultimately, this is a decision that you have to make on your own after you are arrested and put in front of the Intox EC/IR II. It is not an easy decision and thus it is important that you are educated on the process so that you can make a decision that best suits you.
If you have any questions regarding refusals or DMV hearings, please feel free to contact Adkins Law to speak to a DWI lawyer / DUI lawyer. As a former Charlotte-Mecklenburg Police Officer, I handled numerous refusals, subsequent DWI blood draws, and DMV refusal hearings. I intimately understand the process and can help you with any concerns you may have. Adkins Law offers DWI representation in Huntersville, Cornelius, Davidson, Charlotte, Mecklenburg County, Iredell County, Gaston County, Cabarrus County, and the Lake Norman area.
In North Carolina, when you are arrested for DWI and transported to provide your evidentiary breath test, you do not have to blow. You may refuse to submit to a chemical analysis of your breath. Understand, however, that North Carolina is an implied consent state. This means that if you refuse to submit to the breath test (the evidentiary breath test, not the roadside Alcosensor test), your license will be suspended for 12 months.
There are several advantages and disadvantages in refusing to submit to a chemical analysis. The biggest advantage in refusing is that the state will lack the critical evidence they need to convict you of DWI. How can the state prove that you were per se 0.08 or higher without chemical analysis results? The short answer is that this is very hard. Instead, the state will probably have to prove "appreciable" impairment.
In North Carolina, a person may be convicted of a DWI (even without chemical analysis results) if the state can prove that the person's bodily or mental faculties were appreciably impaired at the time of driving. Appreciable has been defined by case law as meaning noticeable and measurable; not necessarily "fall down drunk." To prove appreciable impairment, the police officer must usually testify both as to his observation of the suspect's physical condition and the suspect's bad driving. If the state cannot prove that the suspect was driving poorly, they may not have a very strong case.
A big disadvantage of refusing the breath test is that (1) your license will be suspended, and (2) the officer may get the results they need anyway through a blood draw at the hospital. As I stated above, when you refuse to provide a breath sample, or continuously provide such poor samples that the chemical analyst believes you are refusing, the breath test will end, and the Intox EC/IR II will print out a ticket that states REFUSAL. Once the DMV learns of the refusal, your privilege to drive will be suspended for a 12 month period. At this point, not only will you have a refusal, but as described in the Search Warrant for Blood section, the officer may decide to take you to the hospital and draw your blood for chemical analysis.
If there is a refusal, it is essential that the driver make a request with the DMV for a hearing within 10 days of the refusal. During this hearing, the driver is able to challenge the refusal with DMV. At the very least, this will place a temporary hold on the license suspension pending the hearing.
There are two primary ways to win a DWI hearing: (1) the officer fails to appear, and (2) the officer appears but cannot prove that he had probable cause to make the arrest. The first scenario is quite common. A lot of police officers are unable to attend DMV hearings due to scheduling conflicts. Some officers simply disregard DMV administrative hearings and do not show up. Either way, if the officer fails to appear, the DMV will have no proof that the driver refused, and the driver will most likely win the hearing. Additionally, if the officer appears at the hearing but fails to provide the DMV administrative officer with sufficient proof that he had probable cause to make the arrest, the driver may win the DMV hearing. There is one easy way, however, to lose a DMV hearing: don't show up. If you request a DMV hearing regarding a refusal and do not appear, you will lose your hearing and your license will be suspended for a 12 month period.
Making the decision to refuse or submit to the chemical analysis is personal, highly dependent on the facts of the case, and dependent on whether you are willing to have your license suspended. Ultimately, this is a decision that you have to make on your own after you are arrested and put in front of the Intox EC/IR II. It is not an easy decision and thus it is important that you are educated on the process so that you can make a decision that best suits you.
If you have any questions regarding refusals or DMV hearings, please feel free to contact Adkins Law to speak to a DWI lawyer / DUI lawyer. As a former Charlotte-Mecklenburg Police Officer, I handled numerous refusals, subsequent DWI blood draws, and DMV refusal hearings. I intimately understand the process and can help you with any concerns you may have. Adkins Law offers DWI representation in Huntersville, Cornelius, Davidson, Charlotte, Mecklenburg County, Iredell County, Gaston County, Cabarrus County, and the Lake Norman area.