When is a breathalyzer refusal not a breathalyzer refusal? Under North Carolina’s implied consent laws, anyone driving on the roads of North Carolina “consents” to a breathalyzer or blood examine if an officer has reason to believe the person has been driving while impaired.

If someone “willfully refuses” to submit to a test, the person has violated the implied consent law and the person’s license will be revoked for a year. During the first six months of the revocation, the person is not eligible to get limited driving privileges. The person has no right to drive on North Carolina’s roads at all.

But what happens if a person is short of breath? The person attempts to blow into the machine, but nerves, or shortness of breath result in a failed breath test. Has the person earned a “refusal”? In many Raleigh DWI cases, the chemical analyst or arresting officer will mark the person as a “refusal” even though the person did not refuse!

In these cases, it is worthwhile to demand a hearing before a DMV hearing officer. At this hearing, you may be able to argue that the statute required you to willfully submit to a breath test, and that you did submit. The statute does not require that you actually produce a successful result.

However, it’s also important to remember that a willful refusal may not be willful at all.  In other words, case law allows a chemical analyst to claim someone has willfully refused even where they might have a medical condition or a spasm that prevents them from supply a breath sample.

The burden then shifts to the driver to “prove” that a medical condition, and not a decision not to take the breath test, resulted in the “refusal.”

Damon Chetson - 998 posts

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.

Intox EC/IR II, Refusal