As a DUI Lawyer in Raleigh, I’m often asked at cocktail parties whether it’s wise to “blow” when suspected of Driving While Impaired. Unfortunately, the answer to this question is not simple. The answer needs to be custom-tailored to the evidence available at that time in each case and what kind of hardship a civil revocation of one’s driver’s license revocation would cause on your life.
The initial question that should be asked is…
Intoximeters Alco-Sensor FST (Preliminary Breath Test “PBT”) – Not Admissible
It’s important to understand that a roadside preliminary breath test is an alcohol screening device that’s used to determine the source of suspected impairment. While this yellow hand-held device will display an estimated alcohol concentration, the numerical result is not admissible in court except in [arguably] Driving After Consuming Being Less than 21 or “Baby DWI” cases. An officer may only testify as to the result being “positive” or “negative” for alcohol.
If impairment is manifested in your presentation or performance on field sobriety tests, but the PBT indicates no presence of alcohol, impairment by drugs – rather than alcohol – or a medical condition should be investigated. Unfortunately, some law enforcement officers will consider the number displayed by the Alco-Sensor FST to quickly determine whether they want to put more effort into a full-blown DWI investigation, especially if the PBT is used prior to conducting standardized field sobriety tests.
Refusing to submit to the roadside preliminary breath test will not result in a civil revocation of your driver’s license. However, a judge or jury can consider the failure to blow on the PBT in determining guilt. In fact, a pattern jury instruction has been created for this scenario.
Intox EC-IR II — Admissible
This table-top machine is widely used in North Carolina in “estimating” your “blood” alcohol concentration. “EC” is short for electrochemical and “IR” infrared. The results of the EC-IR II are admissible in court to prove a particular alcohol concentration.
Refusing to submit to this test – or other chemical analysis – when there are reasonable grounds to believe you have committed an implied consent offense will result in an immediate 30-day civil revocation of your driver’s license, followed by a one-year civil revocation.
For some folks who have little need to drive or who already have a revoked license, a civil revocation of one’s driver’s license may not be as detrimental as to those whose livelihood depends on the ability to drive.
Even if you refuse to provide a breath or blood sample, law enforcement can (and frequently does) obtain search warrants to forcibly withdraw your blood if necessary. This is utilized more often where there’s a wreck, injury, or a repeat DWI offender. In these cases, refusing to blow may delay the inevitable while also resulting in a one-year suspension of your driver’s license and drastically reducing the availability of any limited driving privilege.
Disadvantages of Refusing to Blow:
As you can see, the choice to blow or not has to be a decision that considers all the factors mentioned in the proceeding paragraphs. Refusing to blow will often present a myriad of subsequent issues while providing little upside in some cases. However, in some other cases, refusing to blow may result in a higher likelihood of acquittal.
If you need help with a DWI / DUI case, let’s talk. Call me at 919-780-5808. Or send me the details here.