DWI Raleigh Breathalyzer Refusal Hearing Rights for the DWI Offender

In North Carolina, you have the right to refuse to take a breathalyzer test. In fact, the person administering the test – the police officer himself or the breathalyzer technician – is required to provide you with a written explanation of your rights.

If you are able to have someone – including an attorney – come to watch you get breathalyzed, that is best. Often, though, people don’t have an attorney to call.

They often have to make a quick decision about whether to blow into the breathalyzer machine or not.

If you refuse a breathalyzer test, your license will be revoked for one year, even if you are not convicted of the DWI. Here is how it works. Your driver’s license is revoked for 30 days. During that 30 days you can apply for Limited Driving Privileges (LDP) as described above. At the end of the 30 day period, you will probably get your license back.

About 2 to 3 months after your arrest, you will get a letter from the DMV telling you that you refused to take a breathalyzer test, and, as a result, your license will be suspended for a year. North Carolina can do this because North Carolina considers a DWI an implied consent offense: meaning that by having a Driver’s License in the first place, you consented to any breathalyzer tests lawfully demanded by a police officer. The fact that you refused to take the test, means that you violated the “implied consent” and lose your driving privileges for a year.

Once you receive the letter from the DMV about the year-long revocation of your license, you have 10 days in which to request a hearing. This hearing is in front of a DMV hearing officer, not a judge. The DMV hearing officer will only consider whether the officer had “probable cause” to pull you over and request a breathalyzer test. If the DMV hearing officer finds that the police officer did have “probable cause,” then you will lose your license for a year.

If the DMV hearing officer finds that the officer did not have “probable cause,” then you will not lose your license.

In 90% of the cases, the DMV hearing officer will find that the officer had “probable cause,” and will revoke your license for the year.

Note that a DMV hearing officer is not a judge. A DMV hearing officer’s ruling as to probable cause has no effect on your DWI case.

The bad news is that during the first 6 months of your year-long revocation for refusing to submit to a breathalyzer you have no right to drive at all. You cannot apply for Limited Driving Privileges. However, after the 6 months are up, you have a right to apply – and will normally get – Limited Driving Privileges.

Refusing to blow into a breathalyzer, therefore, results in some harsh punishments: the loss of any right to drive in North Carolina for six months. But refusing to blow into a breathalyzer can improve your criminal case, because the prosecution will not be able to show what your blood alcohol level (BAC) was at the time of your arrest.

Damon Chetson

Damon Chetson is a Board Certified Specialist in State and Federal Criminal Law. He represents people charged with serious and minor offenses in Raleigh, Wake County, and the Eastern District of North Carolina. Call (919) 352-9411.