AMOS TYNDALL: BAR TALES


Thoughts on Criminal Defense in North Carolina

What Happens If Someone Refuses A Chemical Test?


After an arrest for driving while impaired, the arresting officer offers you the opportunity to take a breath or blood test. The officer decides which test to offer, but usually offers a breath test unless you are injured or incapable of performing a breath test. In North Carolina, you have a statutory right to refuse to take a breath or blood test, but that decision has consequences that can be significant to your defense.

First, driving while impaired is an implied consent offense. That means you agree to take a breath test when you decide to drive. You can refuse, but are accepting a penalty of an automatic suspension of your license for one year for refusing. That penalty is imposed a short time after arrest and is not dependent on a conviction. Significantly, you are ineligible for a limited privilege to drive for six months. While avoiding the breath or blood results may be beneficial to your defense under some circumstances, the automatic loss of your driving privilege without the ability to obtain a limited privilege for six months is a significant burden to most people.

Second, the arresting officer may seek a search warrant for blood after you refuse. Not all officers seek a warrant, but it is a common practice in my jurisdiction. If that happens and the search warrant is granted, the officer forces you to provide a blood sample, the state tests the sample, and you lose your license for a year based on the refusal. That practice does not mean you should submit to a breath or blood test in all circumstances, but it is important to consider the consequences of refusing.

Third, a refusal can be held against you in court. Judges differ on the amount of weight to give a refusal. Some judges recognize that some drivers have understandable suspicions about the process. Particular judges give the refusal little weight and focus on the driving, interaction with the arresting officer, and the field tests in determining whether you were appreciably impaired. Others assume that a driver must be hiding something if he refuses to take a breath or blood test and gives it substantial weight. Needless to say, you have to expect a judge or jury to consider it as a factor in favor of impairment if you refuse to submit to a breath or blood test.

Additional Information About Chemical Test Refusals

If a person refuses to submit to a breath or blood test, the person should request a hearing with the Department of Motor Vehicles. Those hearings are difficult to win, but are valuable for a couple reasons. One, sometimes we win the refusal hearings and are able to avoid the automatic license revocation. Almost as important, we obtain valuable information during the hearings that can assist in your defense.

For more information on Refusing A Chemical Test, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (919) 967-0504 today.

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