North Carolina Criminal Law UpdatesBreath Testing in NC – Should you blow or refuse?
When you are pulled over on suspicion of driving while impaired in North Carolina (DWI), the police officer may ask you to take a
breath test.
You may be wondering what you should do.
Should you take SFSTs – Field Sobriety Tests? Should you answer questions? Should you blow into the machine or refuse?
In this blog post, we will discuss the pros and cons of blowing and refusing, so that you can make an informed decision.
What is a Breathalyzer?
Most DWI lawyers in Raleigh will ask a very important preliminary question: What breath test are you talking about?
The reason is, police in Wake County may ask you to provide different breath tests at different times with different machines.
Do I need a lawyer for DUI charges?
While we all tend to use the term “breathalyzer” when talking about DWI charges and getting a reading, that can be a bit confusing for a couple of different reasons.
First, North Carolina no longer uses the breathalyzer machine. It’s been out of service for more than twenty years.
Second, sometimes people also refer to the roadside breath device as a breathalyzer test.
Roadside Breath Test Machine – AlcoSensor FST
The machine that the police use on the side of the road is called an “AlcoSensor.” The AlcoSensor FST is one of the more common field sobriety testing devices in North Carolina.
It is NOT an evidentiary breath testing device.
The reading is not as reliable as, say, the desktop breathalyzer, which is formally known as the Intoximeter EC/IR II. And even that isn’t always as reliable as properly performed (by the book) blood testing.
The AlcoSensor FST and the EC/IR II are manufactured by a company named Intoximeters.
The evidentiary breath testing machine before that in NC was known as the Intoxilyer 5000. And the machine North Carolina used, prior to the Intoxilyzer 5000, to convict people of impaired driving was the Breathalyzer.
The results of the AlcoSensor (the numerical reading/display) are not admissible in court, except to show a “positive” or “negative” reading for alcohol. To be clear, the AlcoSensor gives a reading to the officer on the side of the road, a numerical value.
That reading, the number, is not admissible in court to prove you guilty of Driving While Impaired – DWI in NC.
The results of the handheld breath testing machine, the AlcoSensor, may be considered by the charging police officer to help establish probable cause to arrest you for DWI.
Defense lawyers may also refer to that as the “arrest decision.”
You have the right to refuse this test without consequences to your driver’s license.
At the same time, the NC DWI laws authorize the police officer to consider your refusal to blow into the AlcoSensor in establishing probable cause to arrest.
The Pros and Cons of Blowing into the Machine
Let’s say you take the test and it shows a reading of 0.08 or higher on the AlcoSensor – does that mean you will be convicted of 
DWI?
No.
A reading of 0.08 or higher on the AlcoSensor is just evidence that you may have been impaired while driving.
It’s still up to a court, after a trial, to find you guilty or not guilty of DWI.
Can I handle my DUI charges by myself?
That said, if you refuse to blow or blow into the machine and it registers 0.08 or higher, the police officer will very likely arrest you for DWI. That’s allowed under the NC Implied Consent Law.
You will be asked to provide an evidentiary breath sample at the jail or police station (or wherever an LCA- Licensed Chemical Analyst is located with an EC/IR II for testing purposes) – on what’s called the Intoximeter EC/IR II.
- EC = Electrochemical
- IR = InfraRed
The results of this test, the EC/IR II machine, are admissible in court to show your actual blood alcohol content or blood alcohol concentration or what is commonly referred to as your BAC.
As such, the EC/IR II is an evidentiary level breath testing machine.
When you refuse to provide a breath sample on the roadside machine, it may give the police officer probable cause to arrest you for DWI.
However, because the results of this test are not as reliable, and therefore inadmissible in court as evidence of your guilt, you cannot be convicted of DWI in North Carolina solely based on a numerical reading if you blow into the AlcoSensor.
To be clear, there are other types of evidence that may be introduced, other than a BAC, which can lead to a conviction of impaired driving.
What is Driving While Impaired in North Carolina?
To obtain a conviction of impaired driving in North Carolina, under N.C.G.S. 20-138.1, the State has different options. 
Evidence against you may take several different forms. The State, through the District Attorney’s Office in Wake County NC, carries the Burden of Proof.
The legal standard is that the accused operated a vehicle in North Carolina while subject to some sort of impairing substance and that the impairing substance (which includes alcohol, legal and illegal drugs, prescriptions, etc.) appreciably impaired your ability to safely operate a vehicle.
That may include proof (evidence) of things like:
- Odor of an impairing substance
- Slurred speech
- Fumbling for your registration card or driver’s license
- Bloodshot and watery eyes
In addition, the State may attempt to introduce evidence of your performance on both standardized and unstandardized field sobriety tests or FSTs.
After consuming alcohol, a Breath Test (alcohol concentration) of .08 or higher is also evidence of impairment. The Pattern Jury Instructions indicate a reading of .08 or higher, at any relevant after driving, may be deemed sufficient for a conviction.
So is a Blood Test (alcohol concentration) with a reading of .08 or more.
Finally, the State may introduce evidence of any amount of Schedule I controlled substance (N.C.G.S. 90-89) or metabolites in urine or blood to prove you guilty of DWI.
Clearly, the best way to avoid a conviction for DWI is not to drink and drive in the first place.
If you have been drinking, it is important to know your rights if you are stopped by the police.
Frankly, it’s a pretty complicated area of law. That’s why we think it makes sense to talk to a lawyer in Raleigh about your DUI charges and legal options.
Can I refuse to blow?
Yes, you can refuse to provide a sample of your breath into the AlcoSensor.
There is no consequence to your driver’s license in North Carolina for refusing to blow into the roadside machine, other than the possibility, if not likelihood, of getting arrested for DUI.
Refusing to blow into the EC/IR II, the evidentiary breath testing machine, (desktop breathalyzer machine) does adversely affect your license. That is marked down as a Willful Refusal and sent to NCDMV.
If you refuse to blow into the EC/IR II in NC, unlike some states, is not a separate criminal charge or offense.
What are Standardized Field Sobriety Tests?
The National Highway Traffic Safety Administration, or NHTSA, has identified three sobriety tests as standardized.
In order for the results of field sobriety testing to be admissible in court in North Carolina to prove impairment, the police officer should administer the test in accordance with the NHTSA’s guidelines and instructions.
The three standardized tests are the Horizontal Gaze Nystagmus Test, or HGN; the Walk and Turn Test, or WAT; and the One Leg Stand Test, or 1LS.
These tests are designed to observe problems with physical dexterity, balance issues, following directions, etc., and other signs of impairment due to alcohol consumption or as an effect of controlled substances, and/or a combination of both.
Any DUI test is not 100% accurate, and many people who are not impaired can fail these tests. There are margins of error. Also, a lot depends on the training and skill of the charging officer in observing SFSTs and summarizing the results of any such tests.
The police officer will be looking for specific clues or indicators of impairment when administering these tests.
For example, on the Walk and Turn Test, the officer will be looking to see if you can keep your balance while listening to the instructions, if you start too soon, stop while walking, or turn improperly.
If you have a charge after a DUI arrest, it is a good idea to work with an attorney who understands the law and can help protect your rights.
Can I Refuse Field Sobriety Tests?
You have the right to refuse field sobriety tests.
However, if you do refuse to take them, the law enforcement officer may arrest you for DWI anyway.
It is not illegal to refuse SFSTs – Standardized Field Sobriety Tests. Your license will not be revoked if you refuse to take the HGN, Walk and Turn, and/or the One Leg Stand.
Similarly, your license will not be revoked if you refuse to submit to the NHTSA standardized tests or any other roadside tests for impairment.
There are other types of field sobriety tests other than the “big three” SFSTs promoted by NHTSA.
They may include things like:
- Saying your ABCs
- Finger Counting
- Saying numbers in sequence, backward or forward
If you are arrested, it is important to have an attorney who can help protect your rights. They should be well versed in NHTSA testing protocols and the objective standards of probable cause for arrest in North Carolina.
Can I refuse to give a Blood Sample?
You can refuse to give a blood sample or submit to a blood alcohol test, just like you can refuse to blow. . .but there are often consequences under the NC Implied Consent laws.
It is not a separate criminal offense to refuse to give a blood sample, refuse a breathalyzer test, or refuse to blow in North Carolina. That’s different in other states where the refusal to blood or give blood may be a separate and distinct criminal charge.
Your license may be revoked if you refuse to give a blood sample (Willful Refusal) if there are reasonable grounds to request the blood test.
You may also be subject to a forced blood draw if you refuse to blow or provide a blood alcohol test through a blood draw.
It’s a complicated area of law and refusing to submit to a blood draw or breath sample may result in legal issues involving a forced blood draw. But for exigent circumstances, a Search Warrant may be both appropriate and required under the NC DWI laws.
If you are arrested, it is important to have an attorney who can help protect your rights, especially as it relates to a forced blood draw (search and seizure issues) or any action to suspend or revoke your license by the North Carolina Department of Transportation / Division of Motor Vehicles (DMV).
What Happens if I Refuse to Blow or Give a Blood Sample?
If you refuse to blow or provide a sample of your blood, or urine, the police officer may apply for a Search Warrant.
In that instance, police may be authorized to take your blood with or without your consent. Defense lawyers may refer to that as a forced blood draw.
Reasonable force may be used by LEO – Law Enforcement Officers in obtaining a blood sample from you in a forced blood draw scenario.
What is a Forced Blood Draw or Blood Test?
A forced blood draw or blood test is one that is taken against your will.
It may be done with a search warrant or without your consent if there are exigent circumstances.
Exigent circumstances are those where it would be impractical to obtain a search warrant before taking the blood sample, such as when you need immediate medical attention or when the evidence of DWI may disappear quickly.
It is important to have an attorney who can help protect your rights, especially as it relates to any action to suspend or revoke your license by the North Carolina Department of Transportation / Division of Motor Vehicles (DMV).
The bottom line – you should never give law enforcement officers a hard time or be belligerent, but you should also know and understand your rights.
If you have been arrested for DWI, please call our office to speak with an attorney. We offer a free initial consultation and would be happy to discuss your case with you.
Do I have a choice between a breath or blood sample?
In North Carolina, you do not have a choice between a breath or blood sample.
The police officer will choose which test you will take. If the officer chooses a breath test and you refuse, the officer may choose to obtain a warrant for your blood.
It is important to have an attorney who can help protect your rights and who understands Search and Seizure law in NC.
The Implied Consent law is read to mean that you consent to submit to a chemical test of your blood, urine, or breath for the purpose of determining your alcohol concentration or the presence of drugs.
The law also says that you have the right to refuse the test, but if you do, your license may be suspended.
In North Carolina, you cannot be charged with a separate, additional crime if you refuse. It is not resisting arrest or obstructing justice to refuse to provide a blood or breath sample.
Challenging a License Suspension in NC
It is important to know that even if you take the test and it shows that your alcohol concentration is less than .08, you can still be charged with a DWI.
If you are arrested for DWI in North Carolina, it is important to know your legal rights and options, as DWI charges can affect your driver’s license in addition to any criminal sanctions if convicted.
You do not have to take a breath or blood test, but if you do, the results can be used against you in court. You should contact an attorney to help explain the process and get an idea about what to expect in court.
If you have any questions about DWI charges in Raleigh, North Carolina, please contact us at 919-617-7009.
We would be happy to answer any of your questions.
What does Willful Refusal Mean?
The prosecutor assigned to your case may try to prove that you willfully refused to take a chemical test.
The term “willfully” means that you knew that you had the choice to take or refuse the test and that if you refused, your license would be suspended.
It is important to know that the prosecutor has to prove that you were advised of your rights and knew of this consequence.
What Happens with a DWI arrest?
When you are arrested for DWI, the police officer may take you to a local law enforcement agency or jail, where you will be charged with driving while impaired.
An arrest is NOT required for DWI charges in North Carolina.
You could also be charged with other offenses such as reckless driving, speeding, and failure to maintain lane control.
The arresting officer may ask you to provide a breath or blood sample.
You do not have a choice between a breath or blood sample. The police officer will choose which test you will take.
If the officer chooses a breath test and you refuse, the officer may choose to obtain a warrant for your blood.
What is the Legal Limit in North Carolina?
The legal limit in North Carolina is technically .079, although many people refer to the legal limit as .08.
If you are arrested for DWI and your alcohol concentration is .08 or more, you can be charged with a DWI (and convicted).
Even if your alcohol concentration is less than .08, you can still be charged with a DWI (and convicted).
It is important to know that the prosecutor does not have to prove that you were drunk driving or intoxicated.
Appreciable Impairment is the legal standard in North Carolina.
Appreciable means “noticeable” or “capable of being observed and described.”
As such, performance on SFSTs – Field Sobriety Tests may be evidence of appreciable impairment.
A number is not required for a conviction.
What’s the difference between DUI and DWI in NC?
Most people think DWI stands for “driving while impaired.” That’s the charge when a person operates a vehicle after having consumed alcohol or drugs, or a combination of both, and are appreciably impaired.
Others believe DUI stands for “driving under the influence” and is used to describe impairment from alcohol alone.
Can I get my charges dismissed?
It does not matter in North Carolina whether you call it DUI or DWI or Driving While Intoxicated or Drunk Driving.
The NC DWI law doesn’t use any of the common, popular acronyms like DUI or DWI or OWI. N.C.G.S. 20-138.1 simply refers to the offense as Impaired Driving.
That is not to say driving under the influence or while subject to an impairing substance are not relevant to DWI charges.
In North Carolina, you can be charged with a DWI if you are impaired by alcohol, drugs, or a combination of both.
It is important to know that the prosecutor does not have to prove that you were drunk driving or intoxicated.
Appreciable Impairment is all that is required. That may be proven in several different ways.
You can be arrested for DWI even if your blood alcohol concentration (BAC) is below the legal limit.
Remember, it is not just about alcohol impairment. You can be charged with DWI for being impaired by drugs or a combination of alcohol and drugs.
If you have any questions about DWI charges in Raleigh, North Carolina, please contact us at John@FanneyLaw.com or 919-617-7009.
Whatever you call it, DUI or DWI or Drunken Driving, we’ll understand what you mean.
Can I appeal a license revocation for refusing to blow?
Yes, you can appeal a license revocation for refusing to blow. However, the process can be complicated and difficult.
What is Driving While License Revoked?
We believe you should contact an attorney to help you with those types of legal issues.
There are strict timing and eligibility requirements associated with challenging a Willful Refusal.
Can I get a hardship license or limited privilege?
You may be able to get a hardship license or limited privilege in certain circumstances.
Experienced DWI lawyers understand the process is notoriously complicated.
It is important to have an attorney who can help you navigate the system and protect your rights.
If you have been arrested for DWI, call us today.
We’d like to help.
We’ll explain the Limited Driving Privilege conditions and processes and costs.
Refusing the Breathalyzer Test Doesn’t Guarantee You Will Not be Convicted of DWI
In North Carolina, if you are pulled over on suspicion of drunk driving, the police officer may ask you to submit to a breath or blood test to determine your blood alcohol content (BAC).
If you refuse this test, it is an automatic DWI conviction, right?
Wrong.
Just because you refused the breath or blood test does not mean you will be convicted of DWI.
In fact, there are a number of ways to defend against a DWI charge, even if you refused the test.
For example, the police officer may not have had probable cause or reasonable suspicion to pull you over in the first place.
Or, there may not have been a valid, legal DWI Checkpoint or “Impaired Driving Checking Station.”
Or, the breathalyzer machine may not have been calibrated properly.
Each case, each client, and each fact pattern is unique.
There are a number of factors that can help you successfully defend against a DWI charge, even if you refused the breath or blood test.
So, should you refuse to take the breathalyzer test?
It depends on your situation and the facts of your case.
But remember, just because you refuse the test does not mean you will automatically be convicted of DWI.
If you are pulled over on suspicion of impaired driving, and the police officer asks you to submit to a breath or blood test, it is important to remember that refusing the test does not guarantee that you will be or will not be convicted of DWI.
The State may rely on Field Sobriety Tests and the officer’s observation of you to seek a conviction.