Breathalyzer Test in Asheville: Should You Consent to One?

Like many other cities in the USA, Asheville in North Carolina prohibits DUI (driving under the influence of alcohol/drugs). As such, driving with a BAC (Blood Alcohol Content) above 0.08% attracts steep penalties in the city. This means that a police officer can arrest you if they reasonably suspect that you’ve been drinking and driving. In such cases, having an Asheville DUI lawyer is your best option to escape a conviction.

However, there are specific decisions you must make for yourself before your attorney arrives. For example, you can decide to exercise your right to silence and against compelled self-incrimination.  That’s easy; all you need to say is, “I invoke the fifth,” and wait to speak with your lawyer.

Unfortunately, there are also more challenging choices to make on the spot that will significantly impact your case. One of such is consenting to a breathalyzer test.

This article examines your right to refuse a breathalyzer test and the consequences of exercising it. We’ll also discuss the best step to take when faced with such a dilemma.

What Are North Carolina’s Implied Consent Laws?

In Asheville, the implied consent laws apply when you’re lawfully arrested for driving while intoxicated (DWI) or DUI. This means that you consented to a chemical test to determine your BAC upon a DUI arrest. The chemical examination could be through a blood test or breathalyzer.

However, before law enforcement can test your BAC after an arrest, they must advise you of the following:

  • Your right to refuse testing. However, the exercise of this right will immediately result in license revocation for a minimum of one year.
  • The consequences of a BAC of 0.08% or higher. If your BAC result is above 0.08%, you’re at risk of license revocation for at least 30 days.
  • Your right to contact an attorney and have someone present to observe the testing procedures. However, contacting your lawyer and witness shouldn’t delay the testing beyond 30 minutes.
  • The right to request an independent alcohol test upon release from custody.

When the police officer gives this advice, they’ll request that you fill out a form. This form will show that they read the implied consent counsel to you, and you understood them.

Note that this advisory must come before they can conduct any BAC examination on you—even a roadside breath alcohol test. The roadside preliminary test before an arrest is called the Portable Breath Test (PBT). Refusal to undergo PBT will not have any adverse effect on your driver’s license.

Can I Refuse a Breathalyzer Test in Asheville?

From the advice above, you can already deduce that you mustn’t consent to a breathalyzer test upon a DWI arrest. However, you should be conscious of the consequences of such a refusal.

As stated above, refusing to undergo a breathalyzer or any chemical testing results in automatic license revocation. This license revocation remains in place even if your DUI case ends in an acquittal.

However, after six months, you can approach the court for a limited driving privilege. Unfortunately, this option is not available to offenders who killed or seriously injured someone while driving.

Another thing to note is that your refusal to test wouldn’t automatically guarantee a case dismissal. The presence of DWI factors like speeding and swerving irrationally while driving may serve as proof of intoxication. Other DWI factors that can prove your guilt includes:

  • Bloodshot eyes
  • Slurred speech
  • Odor of alcohol on your breath
  • Fumbling while reaching for your documents

Moreover, the courts will likely interpret your refusal as an admission of guilt in the face of other compelling evidence.

What’s the Best Course of Action?

Whether you should consent to a breathalyzer test or not depends on your case’s specifics. For example, there’s no reason to refuse a BAC test if you’re sure you haven’t had a drink all day.

However, your situation becomes complicated if you were drinking and driving or consumed alcohol just before your journey. In that case, refusing a breathalyzer may be in your best interest.

The prosecutor may argue you refused the test to conceal intoxication. However, your attorney will dispute the argument on the ground that you have a right to refuse a test. The prosecution still has the burden of proving your guilt despite your refusal to blow into the breathalyzer.

Your lawyer has a higher chance of discrediting a DUI charge without the breathalyzer evidence. However, Asheville DUI cases aren’t always straightforward. So be sure to seek your lawyer’s advice before taking any step.

How to Defend a DWI Refusal/Charge

If you refuse a breathalyzer test, law enforcement will report such refusal to the North Carolina Department of Motor Vehicles (DVM). The DMV will send you a notice of your driver’s license revocation by mail. After receiving the notification, you can decide to appeal the suspension within ten days.

If you appeal, there will be an administrative hearing to determine the legality of the test. The one-year license revocation stands if the administrative officer finds probable cause for the police pulling you over.

However, an experienced DWI attorney can represent you at the administrative hearing. They can prove that the police officers had no reasonable cause to pull you over.

A DWI refusal hearing is a civil matter and different from a criminal charge. However, the DWI/DUI charge leads to a conviction, possible fines, and jail terms if you’re found guilty. So again, it’s vital to seek a DUI lawyer’s help to limit your risk of a guilty verdict.

Usually, your attorney will consider why law enforcement pulled you over, if there was probable cause for your arrest, etc. Then, they will fight for a case dismissal if they find loopholes in the arrest procedure. Finally, in the worst-case scenario, they’ll seek a minor penalty.

Get Legal Help by Contacting an Asheville, NC, DUI Attorney Now!

Not many things are as scary as facing a criminal charge for a serious offense like DUI. So, it’s normal to be worried about the outcome of your case. However, getting all worked up can do little or nothing to help your situation. Only quality legal representation on your behalf can increase your chances of a dismissed charge.

That’s why you must waste no time speaking with an Asheville criminal defense attorney from our law office. We’ll offer you top-notch and personalized legal advice on how to mount your defense. In addition, our aggressive lawyers can help you walk scot-free if you entrust your DUI case to us. So call us now at 828-759-5556 to book a free consultation with us.

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