North Carolina Implied Consent
Many states, including North Carolina, have an Implied Consent law. This law applies to all licensed drivers in the state and all licensed drivers that are driving in the state. So even if you are a licensed driver from another state that does not have an Implied Consent law, driving on North Carolina’s roadways makes you subject to this law. Put simply, it is “implied” that you “consent” to chemical testing, which includes obtaining samples of blood, breath and/or urine.
Under this law, by being a licensed driver you are agreeing to submit to a chemical test (blood, breath or urine) if police believe that you are driving while intoxicated or subject to an impairing substance. Remember, the state enacted this law to get proof that you are at or above the legal limit of .08%. It is important to understand that it is possible to be charged with Driving While Impaired with readings UNDER .08. It is also possible to be arrested for DWI in cases where illegal and even certain lawfully prescribed medications have recently been in your system. It has been long assumed police cannot force you to take a chemical test; that is not entirely true, as DWI Courts in North Carolina are encountering an increasing number of “blood warrant” and even “compelled blood seizures” under the new DWI Statute. Police and other law enforcement should explain to you that there may be penalties, such as loss of your driving privileges, for refusing to submit to testing.
If you choose to refuse a chemical test, the prosecution may not have a breath, blood or urine test to use against you in court as evidence that you were DWI, although there is an increasing trend to compel testing. The State also may attempt use your refusal to try to convince a judge or jury that you knew you were guilty, and therefore refused the test. The unwillingness to submit to blood, alcohol or urine testing may be used as a “negative inference.” What that means is the jury and the Court may infer from the evidence that you did not want to submit to testing because you knew the reading would be at or above the legal limit for impaired driving. That also would apply to blood testing for the metabolites of certain lawfully prescribed medications and illegal drugs. Although the negative inference has been found constitutional in North Carolina, there are substantial legal issues to be argued with the appellate courts regarding “forced” or “compelled” testing.
You normally face consequences for refusing to take a chemical test in North Carolina. The DMV can automatically suspend your driver’s license once they are notified that you were arrested for DWI and refused the breath or blood test under the Implied Consent law. You may be entitled to a DMV hearing on the subject. Time is of the essence in requesting what is called a Willful Refusal Hearing.
If you refused to take a chemical test, immediately contact DWI defense attorney Bill Powers of the Law Offices of Powers McCartan. He will begin to build your defense by procuring arrest documentation such as the Arrest Affidavit, the Chemical Analyst Affidavit, the Charging Officer Affidavit, the Alcohol Influence Report (AIR) or the Driving While Impaired Report (DWIR). There may also be important video tape of your arrest on scene and during breath testing at the jail or police department. It is important to make certain police followed proper protocol during your stop, arrest and detainment.
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