Refusing the breath test in North Carolina: what a willful refusal costs

What implied consent means

“DUI” is the everyday word; the North Carolina charge is driving while impaired, DWI, under G.S. 20-138.1, and DWI is an implied-consent offense. Implied consent means you agreed to the test when you drove, not when the officer asked.

G.S. 20-16.2(a1) defines an “implied-consent offense” as “an offense involving impaired driving, a violation of G.S. 20-141.4(a2), or an alcohol-related offense made subject to the procedures of this section.” A law enforcement officer or chemical analyst “shall designate the type of test or tests to be given” — breath, blood or another bodily fluid. Before a breath test you are taken before a chemical analyst “who shall inform the person orally and also give the person a notice in writing” of your rights. In the statute's own words, those rights include:

• “You have the right to refuse any test, but your drivers license will be revoked for one year and could be revoked for a longer period of time under certain circumstances, and an officer can compel you to be tested under other laws.”
• “The test results, or the fact of your refusal, will be admissible in evidence at trial.”
• “Your driving privilege will be revoked immediately for at least 30 days if you refuse any test or the test result is 0.08 or more, 0.04 or more if you were driving a commercial vehicle, or 0.01 or more if you are under the age of 21.”
• “After you are released, you may seek your own test in addition to this test.”
• “You may call an attorney for advice and select a witness to view the testing procedures remaining after the witness arrives, but the testing may not be delayed for these purposes longer than 30 minutes from the time you are notified of these rights. You must take the test at the end of 30 minutes even if you have not contacted an attorney or your witness has not arrived.”

The witness-and-attorney right buys at most 30 minutes, and the clock runs from the moment the rights are read. The independent-test right works only after release: G.S. 20-139.1 requires “reasonable efforts” to help you arrange additional testing. If you are unconscious or otherwise incapable of refusing, subsection (b) lets the officer “direct the taking of a blood sample.”

What counts as a willful refusal, and what the test involves

Subsection (c) says: “If the person charged willfully refuses to submit to that chemical analysis, none may be given under the provisions of this section.” Whether a refusal was willful is decided at the DMV hearing; a lawyer can tell you whether what happened at the station counts.

Knowing what the test involves shows where a refusal can be found. The evidentiary breath test is a chemical analysis under G.S. 20-139.1(b3), which requires “the testing of at least duplicate sequential breath samples.” The result is valid only if the “test results from any two consecutively collected breath samples do not differ...by an alcohol concentration greater than 0.02,” and “Only the lower of the two test results...can be used to prove a particular alcohol concentration.” Chemical analysts also follow an observation period before the samples: under the state's administrative rules (10A NCAC 41B .0101 and .0322), the analyst must observe you for the fifteen minutes immediately before a breath specimen to confirm you have not ingested alcohol or other fluids, regurgitated, vomited, eaten or smoked.

Refusal is not only breath. Under subsection (b5) you “may be requested...to submit to a chemical analysis of the person's blood or other bodily fluid or substance...in addition to or in lieu of a chemical analysis of the breath,” and “A person's willful refusal to submit to a chemical analysis of the blood or other bodily fluid or substance is a willful refusal.” Blood is drawn by “a physician, registered nurse, emergency medical technician, or other qualified person.”

Two groups face more. For drivers under 21, G.S. 20-13.2(c) adds its own one-year revocation for a willful refusal that “becomes effective at the same time as a revocation order issued under G.S. 20-16.2 for the same willful refusal” and runs concurrently. For CDL holders, “Refusal to submit to a chemical test when charged with an implied-consent offense” is a one-year commercial disqualification under G.S. 20-17.4 — see the CDL page.

The roadside breath test is not the real test

Two breath devices appear in a Durham DWI stop, and the law treats them differently.

The handheld roadside device is an “alcohol screening test” under G.S. 20-16.3. An officer may require one with “Reasonable grounds to believe that the driver has consumed alcohol and has: a. Committed a moving traffic violation; or b. Been involved in an accident.” The device must be “one approved by the Department” of Health and Human Services, and its number stays out of court: “The fact that a driver showed a positive or negative result on an alcohol screening test, but not the actual alcohol concentration result, or a driver's refusal to submit may be used by a law-enforcement officer, is admissible in a court.” The screening result goes to whether there was probable cause to arrest; it cannot prove your concentration.

The evidentiary test follows the arrest, before a chemical analyst, under G.S. 20-16.2 and G.S. 20-139.1; in North Carolina the instrument is the Intox EC/IR II, and the 12-month revocation attaches to this test. In Durham the night ends at the Durham County Detention Facility, 219 S. Mangum St., where the criminal magistrates sit and the 30-day civil revocation is entered at the initial appearance.

The 12-month revocation and the DMV hearing

Subsection (d) is the part that surprises people: the license consequence of a refusal runs on its own track, at the DMV, with its own deadline.

1. The DMV mails the order

   “the Division shall expeditiously notify the person charged that the person's license to drive is revoked for 12 months,” “effective on the thirtieth calendar day after the mailing of the revocation order.”

2. Request a hearing in writing before that day

   The revocation takes effect unless “before the effective date of the order, the person requests in writing a hearing before the Division.” The statute gives no other day count; the deadline is the effective date. The DMV takes requests “through an online service called PayIt” at payments.ncdot.gov, by mail with the completed form HF-001, or “at your local driver license office.” The fee on HF-001 is “Refused Chemical Test — Fee: $450.00,” and “Hearing requests are not valid without full payment or an approved Affidavit Request to Waive an Administrative Hearing Fee.” The DMV “waives administrative hearing fees for applicants who meet household income criteria.”

3. Keep driving until the hearing

   “If the person properly requests a hearing, the person retains his or her license, unless it is revoked under some other provision of law, until the hearing is held.” The 30-day civil revocation is such another provision, so this keeps the license only once that has ended.

4. The hearing, in Durham County

   “The hearing shall be conducted in the county where the charge was brought” by a hearing officer the DMV appoints. It is limited to five issues: the charge, the officer's reasonable grounds, whether the offense involved death or critical injury, notice of your rights, and whether you “willfully refused to submit to a chemical analysis.” Whether you were actually impaired is not on the list.

5. Appeal to superior court within 30 days

   After the DMV decision, “the person whose license has been revoked has the right to file a petition in the superior court...within 30 days thereafter.”

After six months: the refusal limited driving privilege

Subsection (e1) allows a limited driving privilege during a refusal revocation, but not soon and not for everyone. The conditions: a valid license at the time of the refusal; no impaired-driving conviction and no willful refusal “in the preceding seven years”; no “death or critical injury to another person”; an underlying charge “finally disposed of” either “Other than by conviction” or by a DWI conviction at a level that allows a privilege under G.S. 20-179.3(b), with at least one mandatory probation condition met; “The person's license has been revoked for at least six months for the refusal”; and “a substance abuse assessment from a mental health facility.”

The application goes to the court that disposed of the case: “If the case was finally disposed of in the district court, the hearing shall be conducted in the district court district...by a district court judge.” The procedure and restrictions of G.S. 20-179.3 apply — essential driving only, standard hours of 6:00 A.M. to 8:00 P.M. Monday through Friday, proof of insurance on form DL-123 — and G.S. 20-20.2 charges its $100 processing fee on every court-issued privilege. The license page explains the hours and the paperwork.

What a refusal does in your criminal case

The refusal does not make the DWI go away, and it does not make the State's case go away either.

The rights notice says it plainly: “The test results, or the fact of your refusal, will be admissible in evidence at trial.” Subsection (c1) requires the officer's affidavit to state “The results of any tests given or that the person willfully refused to submit to a chemical analysis,” and the same sworn revocation report under G.S. 20-16.5 supports the civil revocation. Without a number the State cannot use the 0.08 prong of G.S. 20-138.1, but it can still try to prove the first prong — driving “While under the influence of an impairing substance” — with the officer's observations, the field sobriety tests and any video. DWI cases in district court are decided by a judge, not a jury; the court page explains the trial and the 10-day appeal for a jury trial in superior court.

Then there is blood. After a refusal, “none may be given under the provisions of this section,” but tests may still be performed under other applicable procedures of law, and the rights notice warns that “an officer can compel you to be tested under other laws.” That can be a blood draw under a search warrant. If a laboratory tests the blood and you are convicted, G.S. 7A-304(a)(7) adds a $600 State Crime Laboratory fee to the court costs, and the analyst may testify by affidavit unless you object “at least 15 business days before the proceeding at which the affidavit would be used.” The draw, the chain of custody and the lab's work are things a lawyer looks at; what a DWI lawyer costs is on its own page.

The 30-day civil revocation still applies

A refusal is one of the four triggers in G.S. 20-16.5(b)(4): the person “Willfully refuses to submit to the chemical analysis.” The magistrate at the Durham jail enters the 30-day civil revocation at the initial appearance, you cannot drive at all for the first 10 days, a pretrial limited driving privilege is possible after that, and it costs $100 to get the license back from the clerk. These revocations “are independent of and run concurrently with any other revocations,” including the 12-month refusal revocation. The license page walks through all of it, including the 45-day version if the license is surrendered late.