Should I Blow – DWI Breath Tests

The evidentiary breath test on the Intoximeter EC/IR II is the official “real deal” test. This type of test is normally done after you have been arrested and charged with DWI.

If arrested for DWI charges in Raleigh, you don’t necessarily go straight to jail. The charging officer may first take you to the police station or detention center to conduct an official breath test.

While not required, many officers have special certification to conduct breath tests. In the legal system, they’re often referred to as the LCA, which stands for Licensed Chemical Analyst. Years ago, the charging officer could not be the LCA. That is no longer the case under the NC DWI Laws.

This process (and the criminal laws in the area) is notoriously confusing to people unfamiliar with their legal rights. Most people don’t fully understand the implications of breath sampling, especially if you’ve never been arrested for DWI before.

To start the process, there must be legal grounds to demand a breath sample. The charging officer is required to establish probable cause to arrest for an Implied Consent offense.

Assuming there are reasonable grounds to arrest or charge you with DUI in NC, the officer must thereafter read you certain rights, pursuant to N.C.G.S. 20-139.1.

These rights are commonly referred to as your Implied Consent Rights. When the officer reads you these rights, they must also provide you a copy in writing. Thereafter, the LCA is required to prepare and execute (sign and swear to) an Affidavit. Click here for a sample form.

So, what does all of this mean? What are your legal options? Indeed, do you have legal rights when it comes to breath tests in North Carolina?

You have a right to have a witness present when breath or DWI blood testing is performed. But there are important time limits. That witness, whomever it may be, only has 30 minutes to arrive and serve as witness.

The clock starts from the time the officer (or the chemical analyst) reads you your rights to contact a witness or an attorney. You can contact a friend or family member and ask them to come to the testing location to view the testing process.

Do I Need a DUI Lawyer in Raleigh?

You can also contact an attorney for advice. At the end of the 30 minutes, the officer will ask you to provide a breath sample. Even if you have not been able to get in touch with a witness or an attorney.

When the officer asks you to blow, you can say yes or no. That decision and answer often carries important consequences to your DWI charges and your future.

If you say yes, the officer will ask you to provide two back to back breath samples. After you blow, the EC/IR II machine will print out a test ticket showing the results.

If properly charged with DWI in NC, and the results are .08 or more, your license will automatically be suspended for a minimum of 30 days. Criminal lawyers refer to that as a Civil Revocation.

Even though your license can be suspended for a minimum of 30 days under the NC DWI laws, you may be eligible to get a type of limited driving privilege after 10 days. In addition to an initial revocation, the test results (the BAC in DUI charges) could then be used in court to prove that you are guilty.

If you say no, that’s called a refusal. That too carries important consequences to your NC driver license and your ability to drive in North Carolina.

If you refuse, your license can automatically be suspended for 1 year. With a refusal, the process doesn’t always stop there.

NC DMV Hearings

The officer may, in some circumstances, attempt to obtain a Search Warrant to take your blood. If an officer obtains a valid warrant, you won’t be able to say no at that point. It's important you understand the fact that you refused to blow may be used in court to prove you are guilty.

Each case is different, just like each person facing criminal charges in Raleigh is different. We encourage you to call now, meet with one of our criminal attorneys and ask a lot of questions.

We want to help you. We’ll take the time to explain your legal rights and the possible consequences of a DWI conviction in North Carolina.

There are very specific, technical rules about breath tests (and blood testing) for NC DUI charges. If the officer doesn’t follow the official procedures, the attorneys at Fanney Law Office are ready to argue for you.

In certain circumstances, when the officer messes up, the results of the test may be excluded from being introduced in court. Your case deserves careful attention to detail.

The attorneys at Fanney Law Office are ready to fight for you and your Constitution Rights under the 4^th Amendment (and other statutory constitutional rights).

Call John Fanney NOW: (919) 617-7009

You may also reach John directly by email at: John@FanneyLaw.com