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I discussed previously the rights a North Carolina driver has to refuse to 1) answer any questions during a DWI (driving while impaired) stop/investigation, 2) refuse to participate in any field sobriety tests, and 3) refuse to blow into the portable, handheld breathalyzer unit that officers often carry in their squad cars (in NC, this is the Alco-Sensor device).

All of these tactics are used by officers attempting to induce drivers to produce evidence of their impairment or intoxication by alcohol or other drugs, and as a driver in Raleigh or elsewhere in North Carolina, it is your right to simply refuse to assist the police in building a case against you.  You can decline to answer questions about whether you’ve been drinking and where you’ve been.  You can decline to participate in any field sobriety test.  And you can decline to blow into a portable breathalyzer, thereby preventing the police from getting a preliminary reading of your BAC (blood/breath alcohol content).  And in almost every case, it is in your interest to refuse all of these things.

Your rights change, however, if you’re taken back to the police station and asked to submit to the breathalyzer machine found downtown, which in NC is the Intoxilyzer EC/IR II.  It is with respect to the stationary breathalyzer machine that North Carolina’s “implied consent” law kicks in, and if you refuse to blow into that machine, your driver’s license will be revoked for a year, regardless of the outcome of your case.

But, the police must inform you of your rights under the implied consent doctrine, both orally and in writing, and they must give you 30 minutes to contact an attorney and/or a witness, if you’d like to have someone observe the testing procedures.  There is generally no downside to asserting your right to try to speak with a lawyer and get a witness to the scene, which gives you 30 minutes before you’ll be required to provide a breath sample.

Whether or not you should ultimately decide to submit to the Intoxilyzer EC/IR II test for a chemical analysis of your breath is a question that may not have the same answer in every case.  If you refuse this test, you will lose your license for a year, and the fact that you refused can be used as evidence against you to support the State’s argument that you were impaired.  Some people still choose to refuse, but it is important to understand the consequences when weighing this decision.  And, it is worth noting that the police may attempt to force a driver to submit to a blood test, even if he or she refuses the Intoxilyzer.

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Ben is an experienced trial lawyer who earned his law degree from The George Washington University in Washington, D.C. He was trained in trial practice at the nation’s preeminent Public Defender agency, the federally funded Public Defender Service for the District of Columbia, described by United States Attorney General Eric Holder as “the best public defender office in the country.”

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