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.
- 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.
- 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.
- 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.
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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 919-615-2473 or Request a case review today!
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