04-04-2020

Wilmington, NC DWIs: Refusing Sobriety Tests

Domestic Violence, DUI, DWI

The law surrounding Driving While Impaired (DWI) and traffic stops is confusing. There is a great deal of inaccurate online information about what the police can do and your rights.

At Goolsby Law Firm, it is important for us to be a source of accurate information regarding Wilmington, NC DWI cases. If the police pull you over, you should know you can refuse roadside breath and field sobriety tests. But, if you are arrested there are penalties for refusing a breath or blood test.

To learn more about the consequences of refusing sobriety and breath tests, you need to speak with an experienced lawyer about how to properly handle your DWI case. To do so, call (910) 763-3339 or use our online form. You can schedule a free consultation with experienced DWI lawyer, Thom Goolsby.

North Carolina’s Implied Consent Law

Under North Carolina General Statutes (NCGS) 20-16.2, when you drive a car in the state, you automatically agree to a chemical analysis, if you are charged with an implied-consent offense such s a DWI. It does not matter if you have a driver’s license from North Carolina or another state. You can be required to go through a formal breath, urine, or blood test to determine whether you have alcohol or drugs in your system, and if so, how much. If you refuse to go through with the analysis, you face penalties.

When the Implied Consent Law Is in Effect

North Carolina’s implied consent law applies to formal breath, urine, or blood tests performed after an officer arrests you. To be required to submit to such a test, a police officer must have reasonable grounds to believe you committed a DWI. The officer will arrest you and take you to an analyst who is authorized to test your breath. If there is a concern regarding your health, you may be taken to a medical facility for testing.

The police officer must notify you, in person, of the law, your right to an attorney or witness, and the consequences of failing to take the test. They will ask you to sign the form confirming the officer gave you notice. You have 30 minutes from this point in time to contact a lawyer for advice or to select someone to witness the test. At the end of the 30 minutes, you must either take the test or refuse.

Penalties for Refusing a Sobriety Test

If you refuse to take a chemical test, the law revokes your driver’s license for at least one year. An officer will immediately take your license away. Keep in mind, if you refuse a chemical test, an officer may seek a warrant for a blood sample anyway. If you fail the test, that is the amount of alcohol was over the legal limit, your license is revoked for at least 30 days.

Your license revocation is a civil penalty separate from whether or not you are convicted of a DWI. You might beat the DWI charge and still have to go months without a license. Also, the prosecutor can tell the judge and jury at trial that you refused the test and direct the jury to assume you were intoxicated.

You Can Refuse a Roadside Breath Test

It is essential to distinguish between a roadside breath test, also known as a portable breath test (PBT) or breathalyzer, from a formal breath test. A roadside breath test is a small device an officer will ask you to blow into at the scene when they are trying to figure out if you are intoxicated.

These tests are notoriously unreliable and the reading on the device cannot be used as evidence in court. You can refuse a breathalyzer, but the Court can here about your refusal and consider it in determining your guilt or innocence at a trial in the matter.

Think of it this way: The implied consent law requires the officer to tell you about the law, your rights and the consequences of refusing a chemical test. If an officer has not told you these things before asking you to submit to the test, he has violated his requirements and the results are subject to a potential suppression motion.

You Can Refuse Standardized Field Sobriety Tests

Another type of testing is field sobriety tests. The National Highway Traffic Safety Administration standardized three physical tests in the 1970s. These tests are meant to provide clues that you are impaired. If you submit to one or more standardized field sobriety tests (SFSTs), the results are potentially admissible in court.

The three SFSTs are:

  • Horizontal Gaze Nystagmus (HGN) test: An officer will ask you to look at an object and follow it with your eyes, without moving your head, as they move it from one side to the other.
  • Walk-and-Turn test: An officer will ask you to take nine heel-to-toe steps in a straight line, turn on one foot and return in the same way.
  • One-Leg Stand test: An officer asks you to stand on one foot with the other lifted about six inches off the ground while you count out loud.

North Carolina’s implied consent law does not apply to field sobriety tests. If an officer asks you to perform one of these physical tasks or another unstandardized test, you can refuse without being punished. The officer cannot force you to perform any such test or take away your license.

Should You Take Roadside Sobriety Tests?

North Carolina law does not require you to take roadside breath tests or SFSTs. The issue with these types of tests is that they are not necessarily accurate. They can give false-positive results, giving an officer a reason to think you are impaired when you are not.

It may be better to calmly and politely refuse a PBT or the SFSTs in order to limit the evidence an officer has against you. However, an officer can still arrest you for a DWI based on other factors, including your appearance, smell, answers to questions, slurred speech, imbalance and more.

Arrested for a DWI in Wilmington, NC? Call Goolsby Law Firm Today

It is hard to know what to do during a DWI stop. Interacting with one or more officers is intimidating. You may feel pressured to agree to a breathalyzer or SFSTs. You might not be informed of your rights as required by law or an officer may claim you refused when you did not mean to do so.

Whatever the issue, if you are dealing with a DWI and revoked driver’s license, call Goolsby Law Firm at (910) 763-3339 for help. A DWI arrest does NOT necessarily mean you will be convicted, especially if you work with a seasoned and successful trial lawyer like Thom Goolsby.

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212 Walnut St. Suite 100
Wilmington, North Carolina 28401


Like any quality criminal defense attorney, Thom Goolsby may be in court when you first call, but leave a voice mail or send a text. We’ll get with you as soon as possible, so we can go over what happened, evaluate the case, and explain what comes next.