Nc Dwi Law - To Blow Or Not To Blow?

Luke Baker P.A. offers his advice on NC DWI Law - To Blow or Not to Blow?

One of the most frequent questions I encounter from people on the subject of North Carolina DWI law is whether a person should submit to breathalyzer tests from law enforcement officers. Before I answer that question, you should know that first and foremost, the best defense against the charge of driving while impaired is this: DON'T DRIVE DRUNK OR IMPAIRED! Instead, be responsible and get a designated driver, call a cab, or just walk! People die every day because of impaired drivers. Don't be one of the people who becomes responsible for the death of, or serious injury to, another person.

But, assuming you are stopped by law enforcement and you are suspected to be impaired, the first thing you need to know is:

DO I CONSENT TO THE ROADSIDE TEST?

The answer, unfortunately, is not as simple as the question. Even before law enforcement asks you to perform any tests, they are observing the way you look, act, smell, and making note of anything you say. They will also have made note of any bad driving that you have exhibited and anything they may see through your car windows (i.e. drug paraphernalia, open beer cans, etc.). Typically though, after the officer has pulled you over, you are asked to get out of the car and perform some standard field sobriety tests (FST's). These FST's may include things like: the one-legged stand, the walk and turn, and the horizontal gaze nystagmus test. While most people comply with these tests when asked, you must be aware that you have the right to decline the officer's request for you to perform those tests. You also have the right not to make ANY statement at all. You do not have to answer the common "Sir, you been drinking tonight?" question. You have the right to either say nothing at all, or to politely reply that you are not going to answer any questions.

Whether or not you complete the FST's, the officer next typically asks you to blow into a breathalyzer machine at the roadside. The roadside breathalyzer's purpose, along with the results of the other field sobriety tests and any statements you have made, is primarily to corroborate the officer's thoughts as to your level of impairment. That roadside breathalyzer test can put a nail in your coffin as to whether the officer has enough probable cause to arrest you for DWI. If there's no probable cause to arrest you, then whatever happens after the arrest is inadmissible in Court. So, I typically advise my clients as follows:

If you know that you are well under the legal limit for alcohol (0.08) and have not taken any impairing substances (including medications), then blow and complete the tests. The officer will likely recognize that you are not impaired. But the officer may give you a warning or citation for whatever traffic violation he may have found.

If you think you may be close to or just over the .08 legal limit for alcohol or you have taken some impairing substance/medication, you should NOT complete the field sobriety tests, blow at the roadside, or give any statements. It is likely that you will be arrested and charged with DWI, however, the time it takes to arrest and process you at the police station= will result in the passage of time which may be critical to allow your body to process the alcohol in your system so that by the time you end up giving the formal breath sample for testing, your blood alcohol content may drop below 0.08.

SHOULD I REFUSE TO BLOW AT THE STATION?

Answer: It is almost always wise to submit to the Intox EC/IR II at the police station. If you refuse this test, then there will be big consequences. Let's have a look at the consequences.

  1. If you refuse the Intox EC/IR II test, law enforcement will mark you as a "willful refusal". This means that the North Carolina Department of Motor Vehicles will automatically suspend your driver's license for an automatic 1-year period. This will happen regardless of whether you are ultimately convicted of DWI. This is because by applying for and obtaining a North Carolina Driver's license, you have agreed to submit to the Intox EC/IR II as a condition of having that driver's license.
  2. If you refuse the Intox EC/IR II test, law enforcement will not give up in their efforts to ascertain your blood alcohol content (nor should they). Instead, they will transport you to the nearest clinic or hospital to have your blood drawn. This too can be done with or without your consent. Law enforcement officers typically pursue the blood test and, if necessary, will obtain a warrant for the blood test.
  3. If your blood test results in evidence indicating your blood alcohol content was above the legal limit (0.08), and assuming you are convicted of DWI, you will be responsible for paying the $600.00 lab fee at the conclusion of your case.
  4. Because of the State Bureau of Investigation's backlog, it can take as long as two (2) years before your blood test results are returned for use in your case. This results in your case pending for a very long period of time. Most folks I speak with would prefer a prompt resolution of their case. Typically a blood test will prevent that.

Now, if you believe you are still above 0.08 by the time you get to the station, then you might want to weigh your options. There's the chance that the officer may have had enough probable cause to arrest you even if you didn't submit to the FST's and did not blow at the roadside. So, if you refuse to blow at the station and the law enforcement proceeds for the blood test, your license will be suspended, however, you may be able to buy yourself some more time to avoid a conviction of DWI. This is because there will necessarily be a delay associated with transporting you from the police station to the hospital where your blood will be drawn. This will allow your body even more time to process the alcohol so that hopefully, your blood test results might show your blood alcohol content to be below the legal limit. But again, there will be consequences (see above). In that situation you may have to choose what is the lesser of the evils.

Please note that if you know that you are legitimately hammered, then delay will probably not help you one bit and will probably just anger the officer. In that scenario it may be best for you to fully cooperate with the officer. That way when you plead guilty to the charge, the officer can tell the court that you were polite and cooperative.

I again want to make it very clear that no one should drive while under the influence of alcohol (or any other impairing substance). You can avoid all of these "what if's" by just being responsible and not getting behind the wheel. But, in the event you've made a poor judgment call, remember that you do have rights. And remember that you do not have an obligation to submit to the FST's or the roadside breathalyzer. Now please go and drive safe; and I hope you never have to call me for help on a DWI charge.