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Refusing a Breathalyzer in North Carolina

Refusal of Chemical Analysis – Refusing to Blow - DWI Charges Man arrested

In North Carolina, after being charged with an implied consent office (i.e. Driving While Impaired), an officer can request that you submit to a chemical analysis, or in other words, provide a sample of your breath and/or blood tests.

If you refuse to blow into the breathalyzer or otherwise provide a blood sample, that refusal will be reported to NCDMV North Carolina Department of Transportation / Division of Motor Vehicles.

What Happens if I Refused a Breath Test - Are Chemical Analysis Tests Admissible?

After receiving notice of the alleged willful refusal, DMV will send notification (via mail) to the charged driver that their license will be suspended for one year. Notice of the license revocation or suspension is sent by regular US Mail, not Certified Mail.

If your address is wrong on your license, that can cause problems. Formal “service” of the revocation is not necessarily required. Upon receiving notice of the suspension from NCDMV, the person charged with DUI has the option to appeal the suspension for refusing.

What’s the Difference Between DUI and DWI?

How to Appeal a Refusal Suspension

There is an extremely short time frame for submitting hearing request. Time is of the essence. Failure to properly request a Willful Refusal hearing can have long-term, irreversible consequences.

In order to appeal a refusal suspension, you must send a hearing request form to the North Carolina DMV, along with a money order for the fee ($450).

Download a driver license hearing request.

It MUST be sent via mail to the address on the appropriate form. Hearing requests sent without the associated fee will not be processed by the NCDMV.

Because of the consequences of failing to properly request a refusal hearing, we strongly recommend sending such materials by Certified Mail.

Once the DMV receives the hearing request form and money order, they will send another notification (via mail) of the scheduled hearing date, which is typically within 30 days.

What Happens at a Refusal Hearing? Police Car Roof Lights

The hearing is held before a NCDMV hearing officer, who will subpoena the charging officer(s) (the officer who made the DWI arrest) to appear and testify. During that hearing, the hearing officer will determine whether all elements in North Carolina General Statute 20-16.2(d) were met. Those are called the Implied Consent Notice Rights, as set out in the DHHS 4084 form.

After the hearing is held, the DMV hearing officer will send notice, via mail to the driver and/or the driver’s criminal lawyer / attorney, of the decision to either uphold or rescind the suspension.

What are My Options After the Refusal Hearing?

If the DMV Hearing officer sends notice that they decided to sustain or uphold the suspension, then you have the option to appeal that decision. A refusal hearing appeal is held in Superior Court in the county in which the driver was charged. The hearing in Superior Court is limited to the evidence in the record from the DMV refusal hearing (see NCGS 20-16.2(e)).

There are also important timing and filing requirements to appeal a sustained suspension to Superior Court. Contact a defense attorney immediately if you have questions. Failure to properly file may result in the Waiver of Right to appeal and/or challenge the Willful Refusal suspension or revocation.

Am I Eligible for a Driving Privilege?

If you are convicted of refusing a chemical analysis, you may be eligible to apply for a limited driving privilege six (6) months after the refusal conviction, if your pending DWI case has been resolved or disposed of in criminal court AND you meet other eligibility requirements.

Download a Willful Refusal Limited Driving Privilege.

To determine whether you are eligible to apply for a limited driving privilege, after being convicted of a refusal, you should contact an attorney experienced handling DMV appeals and preparing Limited Privileges.

Legal Representation for a DMV Refusal Hearing

If you have recently been charged with an implied consent offense (DUI in SC or DWI in NC) and were marked as a willful refusal, it is important to immediately consult with a defense lawyer experienced in handing such matters at the DMV hearing and Civil Court appeals.

Time is of the essence in requesting a DMV refusal hearing.

The attorneys at Powers Law Firm, PA help people with a wide range of different legal matters in both North Carolina and South Carolina, including DWIs, misdemeanors, felonies, traffic violations, DMV Hearings, and expungements.

Lawyer Bill Powers is licensed in North Carolina. Attorney Chris Beddow is licensed to practice law in both Carolinas. Chris is responsible for all SC legal matters on behalf of the firm.

If you have been charged with a criminal offense, we would be happy to speak with you about your case. For our criminal defense attorneys, we provide a free and confidential consultation.

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