Refusing the Breath Test in North Carolina

WILMINGTON, NC, August 13, 2012

Simply driving a car on a North Carolina roadway is considered consent to a breath test if requested by law enforcement. Regardless of whether you are licensed in North Carolina or not, if you are stopped on suspicion of drunk driving and refuse a breath test in North Carolina, you have violated the implied consent law. Those who do have a North Carolina driver's license that refuse the breath test may face a one year suspension of driving privileges. Those who do not have a North Carolina driver's license may still face similar implied-consent penalties in his or her home state.

Not understanding the implied consent law is not a valid defense to breaking it. But, law enforcement must inform an individual of his or her rights and the consequences of refusal before taking a breath test. Your driver's license will be automatically revoked for 30 days if you refuse the breath test or if you blew:

- .08 or above
- .04 of above for drivers of commercial vehicles
- .01 or above for minors under age 21 (zero-tolerance)

After a breath test refusal and license revocation, you are entitled to a hearing if one is requested in a timely manner.

Requesting A License Revocation Hearing

The arresting officer must submit an affidavit that lays out the facts of a breath test refusal before a North Carolina driver's license can be suspended for 12 months. You should receive a notice in the mail of the license revocation for breath test refusal or failure, alerting you to the revocation. It is effective 10 days from receipt unless a written request for a hearing is submitted to the Division of Motor Vehicles before the revocation becomes effective. License revocation hearings are not automatic; they must be requested, in writing.

The time frame to request a license revocation hearing is a very short time frame; it is important to discuss your options with a DWI defense attorney in your area as soon as possible. The Division must receive the request for a hearing before the revocation becomes effective. If it does not, the one year revocation period begins according to the notice you received by mail. If a hearing is requested in time, you may retain your license and North Carolina driving privileges until the hearing date unless it has been revoked for another reason.

The License Revocation Hearing

Both the individual charged with refusing a breath test and violating North Carolina's implied consent law and the hearing officer may request the appearance of witnesses and the production of documents that are relevant to the hearing. Requests by individuals must be made in writing at least three days prior to the date of the revocation hearing. The license revocation hearing will take place in the county where the DWI arrest was made and the individual charged. If you were arrested and charged with DWI in New Hanover County, your license revocation hearing will take place in New Hanover County.

At the revocation hearing, the hearing officer will consider whether:
- The breath test was refused or failed
- The arresting officer had reasonable grounds to request a breath test
- Serious injury or death was involved if the arresting officer noted such in his or her affidavit
- Information about the consequences of refusing a breath test was adequately provided
- Refusal to blow was done willfully, in violation of the implied-consent law

If the hearing officer finds that the implied-consent law was violated, he or she will order that your North Carolina driver's license be surrendered. If the hearing officer finds that the implied-consent law was not violated or that there was an error in the process followed by law enforcement, you will be able to maintain your driver's license and related driving privileges.

The determination of the hearing officer can be reviewed by the Superior Court if a petition is filed within 30 days. This is a very limited review; the Superior Court will only review whether the driver's license revocation is supported by all the facts in the record related to the drunk-driving stop and implied-consent violation. It is important to remember that the revocation of a North Carolina driver's license is in addition to any DWI penalties that may come from a criminal conviction on drunk-driving charges.

Reinstatement Of Limited Driving Privileges

Under certain circumstances, an individual whose license was revoked for refusing or failing a breath test may be able to secure limited driving privileges after six months. To be eligible for limited driving privileges after an implied-consent violation, you must:

- Have had a valid driver's license at the time of the stop or had an expired driver's license that had not been expired for over a year
- Not have had another drunk driving or impaired driving offense in the previous seven years
- Not have refused a breath test in the past seven years
- Not have been involved in an impaired-driving crash that resulted in serious injury or death to another when you refused to consent to a breath test
- Have closed the criminal case related to the drunk-driving charge for which you refused to blow
- Have a clean record since the implied-consent violation
- Have completed a substance abuse assessment and any required treatment

Limited driving privileges allow those with an otherwise revoked license to drive to work, to school, to court-ordered treatment or assessment, community service or other conditions of probation and for emergency medical care. A DWI attorney in your area can help determine whether you are eligible for limited driving privileges after an implied-consent violation.

Criminal defense attorney Ryan Stump, of Roberts Law Group, PLLC, defends individuals throughout the Wilmington, NC area accused of misdemeanor and felony offenses including drunk driving (DWI), drug offenses and sex crimes, among others. Visit our website at www.wilmingtonlawteam.com to learn more about our successes and our Wilmington criminal defense practice.