Refusing a Breath Test in North Carolina: Legal Implications and Defense Options

Most devices are calibrated specifically for ethanol (alcohol). However, some substances can produce false positives, though modern devices are designed to minimize, if not eliminate this risk.

In North Carolina, law enforcement typically uses devices like the Alco-Sensor FST and the Intoximeter EC/IR II which measure blood alcohol content (BAC) by analyzing the air exhaled from the lungs. Blood testing is also relatively common for impaired driving charges in North Carolina. Breath testing devices follow protocols under North Carolina Administrative Code (NCAC) and the North Carolina General Statutes and should be calibrated regularly to help ensure accurate readings. Breath testing devices are common tools used by law enforcement in DWI (driving while impaired) investigations. Want to know more about the North Carolina DWI Quick Reference Guide?

In North Carolina, alcohol testing devices such as the Alco-Sensor FST, Intoximeter EC/IR II, and Ignition Interlock Devices are commonly used in DWI cases. These breath testing machines require regular calibration and preventative maintenance to ensure their accuracy. If a device is improperly calibrated, it may provide inaccurate Blood Alcohol Content (BAC) readings, which could negatively impact the defendant.

North Carolina has an Implied Consent Law, which means that by operating a motor vehicle, you are deemed to automatically consent to alcohol testing if arrested for DWI. Refusal to take a breathalyzer test can lead to an automatic one-year license suspension.

If your breathalyzer test shows a BAC of 0.08 or higher, you can be charged with impaired driving. However, BAC readings are not always definitive evidence of impairment, nor are they only means for proving the accused is under the influence of an impairing substance or otherwise “appreciably impaired.” In appropriate legal and factual circumstances, there may be potential ways to challenge the test results, including questioning the reliability of the device, the procedures used during testing, or the circumstances of the arrest.

Expert Witnesses and BAC Test Challenges: In DUI/DWI cases, expert witnesses—such as toxicologists or forensic specialists—can be instrumental in reviewing the procedures surrounding alcohol tests. These experts, if qualified under Rule 702 of the North Carolina Rules of Evidence, may testify regarding the proper maintenance of the testing equipment, whether calibration procedures were followed correctly, or if external factors (e.g., environmental conditions) may have influenced the accuracy of the test.

Expert testimony can be particularly critical when challenging Blood Alcohol Concentration (BAC) results. For instance, if the equipment was improperly maintained or calibrated, or if the test was administered in a manner inconsistent with state regulations and statutory protocols, the expert’s testimony could highlight these issues.

However, the impact of expert testimony is highly fact-specific. Courts will consider the qualifications of the expert and the relevance of the testimony to the case at hand. As a result, expert testimony of any kind, whether regarding breath or blood testing or even performance on standardized field sobriety tests (SFSTs) can be a powerful tool but must be directly tied to the facts of each individual case.

Both breath and blood tests are legal in North Carolina and admissible in court, but they can differ in accuracy and reliability. Breath tests, often administered with devices like the AlcoSensor FST, are commonly used in roadside tests due to convenience. However, blood tests tend to be more accurate and less subject to breath test reliability issues due to the methodology of sampling and assumptions made regarding projecting the true Blood Alcohol Concentration (BAC) for a Breath Alcohol Concentration (BrAC) sample. Blood tests, though, may take longer to process, which can sometimes complicate the legal proceedings.

Yes, in appropriate legal and factual circumstances, alcohol testing devices may be challenged in court if there is evidence that the machine was not properly calibrated, maintained, or used. Legal defense strategies can involve proving that the test results are unreliable due to flaws in the procedure, calibration errors, or officer error(s) during the test administration. If you suspect any issue with your test, consult a lawyer to evaluate possible challenges.

In DWI trials in North Carolina, alcohol test results—particularly from devices like the Intoximeter EC/IR II or blood tests using gas chromatography—can be a key aspect of the prosecution's case. These tests provide evidence of a driver's Blood Alcohol Concentration (BAC), which may be an important aspect of proving impairment. Want more information? Check out our FREE DOWNLOAD of the North Carolina DWI Quick Reference Guide.

When an officer administers a breath test with the Intoximeter EC/IR II, the resulting BAC reading can be used as evidence of impairment, together with other evidence such as performance on Standardized Field Sobriety Tests (SFSTs), red glassy eyes, slurred speech, unsteadiness on feet, and other officer opinion testimony. If the BAC is 0.08 or higher, that may be deemed sufficient evidence proving the driver was impaired. It is up to the finder of fact to determine whether to accept all, none, or any part of the admissible evidence as reliable or trustworthy in holding the State to its Burden of Proof: Proof Beyond a Reasonable Doubt. Blood tests, often used in cases involving accidents or serious injury, offer a more definitive and direct measurement of BAC and may also be used to strengthen the prosecution’s case.

However, defense attorneys may challenge, in appropriate factual and legal circumstances, the accuracy of BAC results. There are instances when the device was not properly calibrated, that the testing procedures were not followed, and that environmental factors may have influenced the results. Expert witnesses, such as toxicologists or forensic specialists, may be allowed to testify about whether the equipment was maintained properly, if procedures were adhered to, or if there were other factors that could affect the accuracy of the results. In certain cases, if there are issues with the test procedure, the results may be excluded or called into question, potentially weakening the prosecution's case. Each case is different and unique. As such, it’s smart to seek legal counsel to discuss the individual aspects of your legal matter. TEXT or call the DWI defense lawyers at the Powers Law Firm at 704-342-4357 to schedule a consultation.

No, under North Carolina law, you do not have the right to choose the type of alcohol test. The charging officer determines whether you will be tested using a blood, breath, or urine test. While urine tests are very rare and not commonly used to prove impairment, they are still an option in certain circumstances.

Refusal to submit to any of these tests can result in legal penalties, including automatic driver's license suspension under North Carolina's Implied Consent Law. Therefore, it is crucial to understand the implications of refusing a test, as refusal can result in serious consequences, even without a DWI conviction.