To Fight For Your Rights
FAQs: Refusing the Breath Test in North Carolina
If accused of driving under the influence of alcohol (DUI), the arresting officer may demand a breath sample.
In North Carolina, “drunk driving” charges are formally known as Impaired Driving per N.C.G.S. 20-138.1.
It's OK if you personally prefer to call it “DWI” or “DUI.”
Driving While Impaired (DWI) and Driving Under the Influence (DUI) are generally thought of as being the same thing under the NC DWI laws.
The “breathalyzer” or “breathalyzer machine,” more accurately known as the Intoximeter EC/IR II, is one of three authorized methods to test for impairment.
The NC impaired driving laws also provide for the use of blood tests and urine tests to determine blood alcohol concentration or “BAC.”
Refusing to blow into the “breathalyzer” or what Charlotte DWI defense lawyers and criminal lawyers in NC may refer to as a “Willful Refusal,” is not a formal criminal charge in North Carolina.
It is neither a misdemeanor or felony charge to “willfully refuse” to blow.
That is not to say there aren’t potential penalties for a Willful Refusal or refusing to blow.
Failing to blow into the machine or submit to breath tests (or other authorized forms of testing for BAC including blood or urine tests) can result in the immediate suspension of your driver license by NCDMV (and possibly your home state if you are licensed elsewhere).
Depending on how matters proceed forward in court, the Judge or Jury may also consider, as a form of evidence at the DWI trial, whether refusing to blow indicates a guilty mind, arguably showing you refused to blow because you knew you’d blow over the legal limit.
In North Carolina, the legal standard for breath, blood, or urine tests is .08. As such, the legal limit is technically 0.079.
Unfortunately, there is a fair amount of confusion on what is a “breathalyzer.”
The “Breathalyzer” is actually a trade/product name, like Band-Aid or Frisbee, for a certain type of Breath Alcohol Testing machine or “instrument.”
Over the years, the device name (the Breathalyzer) has in effect come to define all breath testing machines and/or the process of testing for BAC, irrespective of make or model.
Indeed, the Breathalyzer machine isn’t actually used anymore in North Carolina and hasn’t been for quite some time.
DWI Defense Attorney Bill Powers has lectured and published extensively on the technology, science, and laws behind DWI/DUI breath tests.
Bill Powers has each of the breath testing machines in his office including the Breathalyzer 900 and 900A, the Intoxilyzer 5000, and multiple types of handheld breath testers.
If you have questions about the specifics of your case, we recommend you contact Bill Powers immediately: 704-342-4357
You may also email Bill Powers at: Bill@CarolinaAttorneys.com
As stated, the “breathalyzer machine” is no longer used in North Carolina.
It is an outdated piece of machinery that has since been replaced by several different models and manufacturers.
In years past the breathalyzer was used for years as evidence of guilt at DWI trials in Charlotte and North Carolina.
It was believed to be accurate enough to prove someone guilty of “drunk driving.”
“One of the first things I like to explain to clients are the differences between the different breath testing devices, clarifying what people mean when the refer to the ‘breathalyzer’ relative to their individual DWI charges.”
– Bill Powers, NC DWI Defense Lawyer
Some people also refer to the hand-held, roadside breath testing machine as a “breathalyzer.”
That’s understandable. Handheld breath testers test your breath for alcohol.
North Carolina primarily uses a handheld device called an AlcoSensor on the roadside. It is also manufactured by Intoximeters, Inc., the same company that produces the EC/IR II.
The AlcoSensor number (the reading) is generally not admissible as evidence. Officers may only reveal a “positive” or “negative” reading for alcohol.
Arrests for DWI charges in Charlotte can have both immediate and long-term negative consequences.
That’s especially true for legal matters involving an allegation of a Willful Refusal.
Motorists ordinarily cannot be required to submit to a breathalyzer test. There are certain exceptions.
NC DWI Quick Reference Guide – Breath Testing Devices and Laws
For example, if a judicial official (magistrate or judge) issues a Search Warrant to conduct a blood draw, police can take your blood. Use of appropriate force is allowed.
There are also certain limited circumstances where a blood sample can be “compelled” under the DWI laws in North Carolina.
Refusing the handheld AlcoSensor does not result in a license suspension. You cannot be convicted of Resisting Arrest for failing to submit to the AlcoSensor.
Refusing the roadside breath test may be considered by police officers in making the “arrest decision” and Probable Cause to Arrest.
Refusing the EC/IR II in the Intox Room at a local jail, police department, or other authorized place like the “Batmobile” at a DWI checkpoint, ordinarily results in an immediate license suspension and notification to NC DMV of the Willful Refusal.
There may be legal options to challenge your license suspension.
We recommend you immediately contact one of our Charlotte DUI lawyers for legal advice. This area of criminal law is complicated and can be confusing.
Consultations for all DUI/DWI charges in North Carolina and South Carolina are free of charge at our law firm.
Refusing the Breathalyzer can also have potential positive consequences. It may serve to limit evidence of impairment at trial, at least as to the specific reading or BAC.
Understanding that, the NC General Assembly provides options to law enforcement to obtain a Search Warrant in the event of a Refusal.
There are also times when a blood sample may be compelled in certain circumstances.
Whether the test results are ultimately deemed admissible as evidence at a DWI trial in Charlotte is a matter for the Court (the Judge).
Field sobriety tests or “dexterity tests” are not required under the NC DWI laws.
There is no license suspension or penalty to your license for refusing dexterity tests.
Refusing to submit to dexterity tests like the Horizontal Gaze Nystagmus test (HGN), the One Leg Stand, and/or the Walk and Turn test (heel to toe), may be considered by law enforcement in determining Probable Cause for Arrest.
Under the NC DWI laws, someone may be marked as having “willfully refused” if they have been formally requested to submit to a breath test or other form of chemical analysis of blood or urine, and fails or refuses to provide a sample.
The science, law, and technology associated with testing for blood alcohol concentration are notoriously complicated.
Charlotte DWI lawyer Bill Powers has more than 27 years of practical courtroom experience handling impaired driving charges in Charlotte and throughout North Carolina, see:
Bill Powers Listed as Lawyer of the Year 2020 DUI/DWI Defense by Best Lawyers®
One of the more common types of refusals is when a motorist declines to blow into the breathalyzer machine (the EC/IR II in North Carolina).
It is not deemed a refusal or willfully refusing for failing to submit to the handheld, roadside test known as the AlcoSensor device.
- Refusal in DWI cases, under N.C.G.S. 20-139.1(f) may allow for an evidentiary ruling where: “. . .evidence of that refusal is admissible in any criminal, civil, or administrative action” against the person properly charged with DWI in North Carolina.
- License Suspension for Refusal in DWI, pursuant to N.C.G.S. 20-16.2 authorizes a license suspension by NCDMV.
- Challenging a license revocation or suspension may be an option, especially in circumstances where officers did not possess sufficient Probable Cause to Arrest for DWI and/or failed to comply with the Implied Consent Notice of Rights.
- Appeals of license revocation or suspension may be handled by a DMV Hearing Officer in Mecklenburg County.
- Appeals of DMV rulings, after a formal hearing, may be appealed to Superior Court. Such matters are decided on the record proper and are not deemed de novo or trials anew.
- A Willful Refusal Limited Driving Privilege may be authorized after completion of certain conditions precedent. Hardship or Work privileges generally are not a matter of right, are subject to strict statutory guidelines, and are in the discretion of the Court.
Time is of the essence when it comes to properly challenging a Willful Refusal.
Failure to act in an appropriate, statutorily mandated period of time may result in the waiver of your right to challenge a suspension and/or revocation (DWI lawyers in Charlotte tend to use the terms interchangeably / there are technical differences).
Legal challenges for Refusal may include things such as of Reasonable Suspicion, Probable Cause, and Rescinding License Suspension/Revocation.
Bill Powers is well-known for his DWI defense lectures, written materials, and continuing legal education.
Check out the North Carolina DWI Quick Reference Guide and the DUI/DWI Guidebook for Navigating the Legal System.
Call Bill Powers for a free legal consultation: 704-342-4357
Our team of defense lawyers travel extensively through North Carolina helping people with DWI charges.
We do not limit legal representation to Charlotte alone, regularly helping people charged with DWI in Monroe, NC, Salisbury, in Rowan County, Gastonia, Mooresville, Statesville, and the surround judicial districts.DWI in North Carolina: Topics of Interest and Helpful Information
- How to Beat a DUI-DWI: Top 9 Ways for Beating a NC DWI
- Are There Differences Between DWI and DUI?
- What Does Indictment Mean?
- When is Drunk Driving a Felony?
- Are DUI Checkpoints Legal in North Carolina?
- How Much Does a DUI Cost Over 10 Years?
- Is DUI A Felony in North Carolina?
- Arrested for DWI in North Carolina? What Happens Now?
- What Qualifies as a Refusal in a DWI case?
- Penalties for Breathalyzer Refusal in Mecklenburg County
- Criminal Consequences for Refusal in DWI cases - PODCAST
- License Suspension for Refusal in DWI cases
- Can the Refusal be Challenged or Dismissed?