It's one of the most common questions I receive from people who have been pulled over in North Carolina: "Do I have to take the breathalyzer?" The short answer is technically no — but the consequences of refusing are serious and automatic. Here's what you need to understand before you make that decision.
Under North Carolina General Statute § 20-16.2, anyone who drives a motor vehicle on a public road in North Carolina has already given their implied consent to chemical testing — breath, blood, or urine — if a law enforcement officer has reasonable grounds to believe that person has consumed alcohol or a controlled substance and is driving while impaired.
In plain English: by obtaining a North Carolina driver's license and driving on NC roads, you have already agreed to be tested if lawfully stopped and suspected of DWI. You never signed a piece of paper saying so, but the law treats it as though you did.
If you refuse a breath or blood test after a lawful DWI stop in North Carolina, the following consequences are automatic — they happen regardless of whether you are ever convicted of DWI:
Important: A second refusal within 7 years results in a permanent license revocation. If you have previously refused a chemical test in NC, consult an attorney immediately before making any decision about a subsequent test.
Many people don't realize there are actually two different breath tests that may be administered during a DWI stop in North Carolina, and the implied consent law applies differently to each.
This is a small handheld device the officer may ask you to blow into at the scene of the traffic stop. This is a preliminary screening tool — its results are not admissible in court as evidence of your BAC. You are not required to submit to this test, and refusing it does not trigger the implied consent penalties.
This is the official evidential breath test administered back at the law enforcement facility after your arrest. This is the test that the implied consent law applies to. Refusing this test triggers the automatic license revocation consequences described above.
Bottom line: You can decline the roadside handheld device without penalty. Refusing the official Intoxilyzer 9000 test at the station is what triggers the automatic 12-month license revocation.
This is not a question with a one-size-fits-all answer, and any attorney who tells you otherwise is oversimplifying. Here are the real considerations:
The decision depends on many factors unique to your situation — your prior record, how much you had to drink, how important your driving privileges are to your livelihood, and more. This is exactly why you should invoke your right to speak with an attorney before submitting to testing whenever possible.
Yes. Under North Carolina law, you have the right to contact an attorney before submitting to a chemical analysis, as long as the attorney can be reached within a reasonable time — generally interpreted as 30 minutes. The officer must give you a reasonable opportunity to contact an attorney before requiring you to make the decision.
If you are stopped and suspected of DWI, clearly and calmly invoke this right: "I would like to speak with my attorney before I make any decisions about testing." Do not wait — make this request immediately and clearly.
The implied consent process comes with specific procedural requirements that law enforcement must follow. If these procedures are not followed correctly, the results of the chemical test — or the refusal itself — may be suppressed as evidence. These requirements include:
An experienced DWI defense attorney will scrutinize every step of this process for errors that could work in your favor.
Whether you submitted to testing or refused, there are defenses available. Call Attorney Joe Provenzano for a free, confidential consultation — available to call or text directly.
Call (919) 999-9300 NowThis article is intended for general informational purposes only and does not constitute legal advice. Reading this post does not create an attorney-client relationship. Laws change frequently — consult a licensed North Carolina attorney about your specific situation.