Myth vs Fact: Should you refuse the breath test if you are arrested for a DWI in North Carolina?

MYTH: It’s best to refuse to blow into the breath-test machine/breathalyzer at the jail.

TRUTH: Refusing to provide a breath sample at the jail will have the immediate result of a one year revocation or suspension of your license. Also, if you try to blow into the machine and the test doesn't register your attempts, you can also be considered to have “refused” the test and face the same one year revocation of your license. 

This revocation is separate from the one that happens at the time someone is convicted of or pleads guilty to DWI in North Carolina. A refusal case means that your license is suspended for one year simply because you refused, not on your guilt or innocence. 

This question refers only to the breath test at the jail after you are arrested, not the Portable Breath Test (PBT) that some officers use on the roadside. This breath test and the other Field Sobriety Tests (FSTs) are optional and there are no penalties for refusing an officer’s request to perform the Portable Breath Test, Horizontal Gaze Nastagmus test, Walk and Turn test, One Leg Stand test or any other similar test. 

What, if anything, can be done about this revocation based on a refusal? Because the standard for this test is your “willful” or intentional refusal, if you specifically said that you would not take the test at the jail, there is most likely nothing that can be done to challenge the refusal. Your words served as an intentional refusal and the one year revocation will be placed on your license. In this case, a limited driving privilege option may be available and you would need to discuss with your Greensboro DWI lawyer if and when you may qualify to ask the court to consider this petition. 

If, however, you tried to provide a breath sample and a medical issue or some other problem prevented the machine from registering your effort, you may have a basis to file an appeal and request a hearing with the DMV to reverse the revocation based on a non-willful refusal. 

Filing a notice of appeal and requesting a DMV hearing can result in a successful reversal of the revocation for refusing to blow into the test at the jail but timing is everything. Your appeal must be filed early in the case or you lose your ability to challenge and are stuck with it. Like many processes in the courts, you may have a great case for an appeal, but if you miss the filing deadline, you lose the chance to have your case heard. 

Recently I represented Richard (name changed for privacy) in a Greensboro DWI charge. Richard had serious health issues including advanced emphysema and although he tried to provide a breath sample, was never able to blow strong enough for the machine to register his efforts. His case would have been perfect for appeal because he was on several medications for his breathing and his medical problems were well documented. Unfortunately, he hired me very close to his first court date and it was too late to file the appeal to the Greensboro DMV. Although I believed we would have had a good chance at getting his revocation set aside, Richard had lost that possibility by waiting. 

This early filing deadline is a reason to hire a knowledgeable attorney early in your case and talk about all of the parts of your case. Don't wait or you may miss your Greensboro DWI appeal chance completely!