Can You Refuse a Breathalyzer Test in North Carolina

Many people make mistakes during a DWI stop as a result of not knowing nor understanding their rights. If you are pulled over by a police officer due to driving while intoxicated, you can be subject to stiff penalties such as loss of driving privileges, fines, and even jail time. The results of a breathalyzer test often lead to a conviction of drunk driving. Can you refuse to take a breath test in North Carolina? If you do, what are the consequences? 

What you can and cannot refuse during a DWI investigation depends primarily on the stage of the investigation you are in. There is the 1) DWI stop (the pre-arrest stage) and the 2) post-arrest stage.

In this article, your Raleigh DWI Lawyers provide information about what to expect at a DWI stop, whether or not you can refuse a breath test, and the consequences if you do refuse.

What Is North Carolina Implied Consent Law?

Driving while impaired and several related criminal offenses involving consumption of alcohol or other impairing substances are categorized under North Carolina law as “implied consent offenses.” Implied consent laws stipulate that driving is a privilege and, because of that, you agree to drug and alcohol testing if you are suspected of driving while impaired. The statute  states:

“Any person who drives a vehicle on a highway or public vehicular area thereby gives consent to a chemical analysis if charged with an implied-consent offense. Any law enforcement officer who has reasonable grounds to believe that the person charged has committed the implied-consent offense may obtain a chemical analysis of the person.”

An implied-consent offense is defined with the general statute as:

“[A]n offense involving impaired driving, a violation of G.S. 20-141.4(a2) [death or injury by vehicle], or an alcohol-related offense made subject to the procedures of this section. A person is “charged” with an offense if the person is arrested for it or if the criminal process for the offense has been issued.”

If you are a parent whose child is arrested for DWI, read this article for more information.

Stages of a DWI Investigation

There are two basic stages in the DWI investigation–the DWI stop, or the pre-arrest stage, and the post-arrest stage. For more information about what to do at a Raleigh DWI checkpoint, see this article.

Pre-Arrest (DWI Stop)

  1. Producing a License – This is the first request an officer will make. If you are driving a vehicle, you cannot refuse to produce your driver’s license during a lawful stop.
  2. Stepping Out of Vehicle – When an officer orders that you step out of the vehicle, you cannot refuse to do so.
  3. Field Sobriety Tests – You can refuse to perform any field sobriety tests. These tests are designed to see if your coordination and reflexes are impaired. Field sobriety tests are optional and it is your right to decline these tests.
  4. Portable Breath Test (also called a “Breathalyzer” or “Intoxilyzer”) – You can refuse to take the roadside breath test. Your license is not suspended due to your refusal pre-arrest.
  5. Statements – You can refuse to make statements during a DWI stop, including answering common law enforcement questions such as “Where are you coming from?” or “How much have you had to drink?”
  6. Searches – You can refuse to give consent to searches during a DWI stop.


  1. Breathalyzer – After you are arrested, you cannot refuse the Breathalyzer breath test without consequences, yet you can refuse the test. If you refuse the test, your license will be revoked automatically for one year. Your refusal can also be used as substantive evidence against you during the DWI trial.
  2. Statements –  You can refuse to make any statements after being arrested. It is within your right to remain silent and to request an attorney.
  3. Searches – You cannot refuse a search of your person after arrest.

Refusing a Breathalyzer After You Are Arrested

If you are arrested from the DWI stop, you will be asked to take either a breath test or a blood test in order to determine your blood alcohol content. If you refuse either type of testing, you will have your driver’s license suspended for one year under the implied consent law. Regardless of you being acquitted later or not being charged with drunk or drugged driving, you will be without a license for a year. Additionally, refusing to take the breathalyzer or blood draw can be used against you in court when you are facing DWI charges.

After Your License Is Revoked

When you have your driver’s license suspended, you and your attorney can appeal for a limited driving privilege. If granted, you will be allowed to drive to work, attend school, go to the doctor, or go to church. There are strict curfews that you must abide by, however.

Contact Our DWI Lawyers Immediately If You Are Arrested

When you are arrested at a DWI stop, you should get legal counsel at once. If you invoke your right to remain silent and request an attorney, you need the attorney to be present with you in 30 minutes. At Sandman, Finn & Fitzhugh, our team of experienced attorneys provide legal counsel that can make the difference in the consequences you face and fully represent you in court. To speak with an attorney 24 hours a day, call us at (919) 845-6688 or complete the contact form to speak to one of our attorneys today.