If I Am Arrested For Driving While Impaired, Should I Take The Breathalyzer Test?

As a Raleigh attorney, I have received those 2 a.m. phone calls from friends and clients after a Driving While Impaired (hereafter DWI) arrest asking me, “Should I take the breath test or should I refuse?” Although every case is different, there are some important factors that must be considered in making this decision.

Before discussing those factors, one must understand the consequences of a willful refusal. A refusal of the breath test results in an automatic 1 year suspension of your driving privilege. This suspension occurs regardless of the outcome of the DWI. A privilege can be obtained only after 6 months, but only if the DWI case is resolved and there are no prior refusals. Therefore the consequences of a refusal can be more penal than an actual DWI conviction with regards to the affect on one’s driving privilege.

1. Do you think you will blow over the limit? This question is usually difficult to answer unless one is fairly certain they have not consumed enough alcohol to blow over a .08. Obviously, this is the most important question and only the person charged can decide this issue, but assuming the worst, the following factors become relevant in the decision making process.
2. Is your driver’s license currently valid? In order for a person convicted of DWI to be eligible for a limited driving privilege they must have either a valid driver’s license or one that has not expired for more than one year. If a person would not be eligible for a driving privilege, then refusing the breath test has no consequence and may be beneficial if one was otherwise likely over the legal limit.
3. Have you been convicted of Driving While Impaired in the last 7 years? If there is a prior DWI conviction in the last 7 years and you were to be convicted this time, then you would not be eligible for a driving privilege. If the conviction was outside of 3 years of the offense date then the suspension is 1 year. If the prior is within 3 years of the offense date then the suspension is 4 years. The significance is that a refusal suspension is not as problematic, and it allows for a better opportunity to win the DWI by avoiding an over-the-limit breath test result. In conclusion, a person with a valid license and no prior DWI’s within the last 7 years should probably take the breath test to limit the loss of their driving privilege. Those individuals with priors within 7 years or those without a license may consider refusing to take the test. Note: In the last year or two, police officers are obtaining warrants to take blood which could do away with the choice of refusing. In cases where a warrant is issued, a person has no right to refuse.

Contact a Raleigh Criminal Defense Lawyer

If your teenage son or daughter has been charged with an underage alcohol charge in North Carolina, contact the attorneys of Kirk, Kirk, Howell, Cutler & Thomas, L.L.P. in Raleigh to discuss your case. Call us at (919) 365-6000 or Request a case review today!