Refusing a Breathalyzer in North Carolina: The Facts

Driving while impaired in North Carolina, that particular statutory charge, is one that we describe as implied consent and what implied consent means is when we accept a driver’s license in North Carolina and/or we drive on the roads in North Carolina, we implied to give our consent to law enforcement to provide either a breath or a blood sample when we’re asked to.

The consequence of declining to give a breath sample or a blood sample comes with the DMV, not with the criminal court but instead with the administrative court.

So, if the person received notice from the DMV, stating that they’ve received paperwork from an officer who indicates that they declined to give either a breath sample or a blood sample, they offer up a hearing so that you can contest whether that claim is true or not.

Often people who suffer from asthma or have some respiratory illness or even are life-long smokers; they try and try and try to enter a sample into one of those breath testing devices but it never captures…that’s not on them, that’s on the device but the paperwork is the same, so it’s important in cases like those to contest that claim of declining to provide a breath sample and get the hearing to prevent that administrative one year suspension.

The most important part of this, though, is that the window of time to make that request is extremely compressed. What I tell clients who bring me paperwork that says, from the officer, that they didn’t provide that requested sample is that they should stalk their mailbox; watch it like crazy to see when that notice comes in because the time in which to respond to that notice is very, very short.

Failing to respond timely, prevents the hearing, which causes the suspension to kick in. So, if you’ve been charged with driving while impaired; the officer claims that you didn’t give that sample, it is extremely important to watch your mailbox and respond and act on Notice of Hearing.