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 a 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 such as the Intox EC/IR-II or some other chemical test, including a blood test. However, this consent, like any other consent under the law, may be revoked by a motorist.

Should I take a breath test?

In certain instances, it is in your best legal interests to exercise your rights under the law and revoke your consent to submit to a Breathalyzer. 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 perhaps increasing your chances of a DWI/DUI dismissal. It is important to know, however, that refusal comes with its own penalties, including a one-year driver’s license revocation. That your license is currently suspended, or you have an out of state license or the presence of Grossly Aggravating Factors may impact your decision to take the breath test.

Advantages of refusal

The advantages of refusing can be multifold, including:

• Denying the prosecution a 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, physical appearance and how you performed on your field sobriety tests.
• The evidence on which the prosecution must rely is 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

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 grossly aggravating 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), and when they were
• A passenger in your car who was a child under the age of 18 years, or a person with the mental development of a child under the age of 18 years or a person with a physical disability preventing unaided exit from the vehicle
• 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 seven-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.

If there are three or more grossly aggravating factors, you are facing a one-year minimum jail sentence and a maximum of three years in jail. This may be reduced to 120 days in jail under certain circumstances.

In either of these three scenarios, you cannot get a limited driving privilege during the minimum one-year suspension of your license.

Contact a lawyer at our firm today to discuss your case and rights, call 704-671-2390 or contact us online.