It is a common misperception that "you have to take the breath test". Nothing could be further than the truth. In fact, in some instances, it is in your best legal interests to REFUSE to take the breath test (i.e. EC-IR II test) or other chemical analysis.
North Carolina statutes prescribe that Driving While Impaired DWI/DUI is an "Implied Consent Offense". This means that any motorist on North Carolina roadways implicitly gives their consent to take a chemical test of the officer's choosing, be it the Intox EC IR II or some other chemical test. However, this consent, like any other consent under the law, may be revoked by the motorist.
In certain instances, it is in your best legal interests to exercise your rights under the law and revoke a consent that was only implicitly given. In doing so, you deny a crucial piece of evidence to the prosecutor, forcing them to rely upon less reliable and more subjective evidence, and increasing your chances for a dismissal of your Driving While Impaired DWI/DUI case.
However, you must bear in mind that you then face the possibility of the penalties of their refusal, which is typically the one year revocation of their North Carolina Driving Privilege. (In some instances a Limited Driving Privilege may be issued after the first six months of the "Refusal Revocation" period.)
The advantages of refusing can be multi-fold. It is obvious that a reading of .08 BAC or greater makes the prosecutor's case that much easier to prove. Denying them this crucial piece of evidence makes the possibilities of winning your case much greater.
Without a chemical analysis of breath or blood, the prosecutor is forced to prove the case against you with only the evidence of your driving (weaving in the roadway, speeding, etc), your physical appearance and how you performed on your Field Sobriety Tests. All of these factors are subject to interpretation, explanation and argument, which can go in favor of dismissing your case.
In addition, denying the evidence of the Intox EC IR II reading makes any unreasonable delay in your release from custody that much critical. This can also serve as a basis to have your case dismissed.
Balancing the Advantages With the Consequences
Mandatory Jail Time?
Often the penalty of losing your license for one year is far less punitive than the consequences of a conviction, particularly if there are Grossly Aggravating Factors present in your case.
These factors can include:
- Prior Driving While Impaired DWI/DUI convictions - If you have any prior Driving While Impaired DWI/DUI conviction in North Carolina or any other jurisdiction (another state, even Federal court)
- A child under the age of 16 years was a passenger in your car
- Your driver's license was revoked for a previous Driving While Impaired DWI/DUI conviction
- Serious Injury to another person was caused by your Driving While Impaired DWI/DUI
If there is one Grossly Aggravating Factor, you are facing a penalty of a mandatory minimum 7 day jail sentence, with a possibility of a maximum of one year in jail.
If there are two Grossly Aggravating Factors, you are facing a penalty of a mandatory minimum 30 day jail sentence, with a possibility of a maximum of two years in jail.
In either scenario, you can not get a Limited Driving Privilege during the minimum one year suspension of your license.
In other instances, there may be good reason to refuse the Intox EC IR II and accept the consequences.
These might include that you are not licensed to drive anyway, that your previously issued license is revoked for some other reason or you can easily enough make do without your driving privileges for the period of the suspension.
It does not make sense to give the prosecutor a crucial piece of evidence in the hope of avoiding the suspension of a license that does not even exist, or is not needed, anyway.
It might also be in your best interests to refuse the EC-IR II if your driver's license is from another state other than North Carolina where penalties for refusing chemical analysis of breath or blood are less severe than North Carolina's. Note that under The Interstate Compact, NCDMV is required to report your refusal, and any conviction, to your home state. What your home state does with that information depends upon the laws of your home state.
Under current law, note that law enforcement MAY seek a Warrant allowing them to withdraw your blood by force if you refuse.
Effective for offenses committed on or after December 1, 2011, a person convicted of Impaired Driving must be sentenced at Level One punishment (mandating a 30 day minimum in jail, maximum of 2 years in jail) if there was a child under the chronological age of 18 OR an adult with the mental development of a child under the age of 18 OR a person with a physical disability that prevented them from exiting the vehicle on their own.
Stopping Patterns at Vehicle Checkpoints
Effective December 1, 2011, the law now requires law enforcement agencies to designate in advance a pattern for stopping vehicles at checkpoints AND also prohibits law enforcement from basing a stopping pattern on a particular vehicle
Effective December 1, 2011, the onerous "Laura's Law" could even increase punishment for a second-time DWI offense by establishing an "Aggravated Level One" punishment. This law mandates 12 months in prison if there are three or more Grossly Aggravating factors. Some of the more onerous applications that would require one year in jail would be if the defendant had a prior conviction from six years ago, never resolved their DWI related suspension and had a child in the car OR had two prior convictions from 6 years ago and never resolved their DWI related suspension. The defendant who receives this sentence of imprisonment must be released four months before the end of the maximum and be placed on post-release supervision. They must abstain from alcohol during this period and it must be verified by 24/7 monitoring system.
"Laura's Law" also provides for a permanent license revocation for this defendant and requires an ignition interlock if the person's license is restored.