Challenging License Revocation for Breathalyzer Refusal

If you are reported as having refused to take a breath or blood test in connection with a DWI arrest, North Carolina DMV will attempt to revoke your driving privilege for one year, regardless of the result of the DWI charge and often before the DWI case even goes to court. This revocation is separate and apart from the license revocation that will occur if you are convicted of the DWI. If you’re facing license revocation for breathalyzer refusal, you need an experienced DWI attorney to represent you.

It is critical that qualified legal representation is serving as counsel in a Department of Motor Vehicle (DMV) Refusal Hearing, as favorable outcomes can be particularly difficult to achieve on your own.

A person may have willfully refused a Intoxilyzer breath test or blood test, or may not have been able to perform the test properly due to a medical condition or extreme impairment. If a person was unable to perform a Intoxilyzer breath test due to a medical condition, he or she will still be reported as refusing to take the test.

Whether the person willfully refused to take the breath or blood test, or really tried to take the breath test but could not perform the test, he or she will lose driving privileges for one year—unless the case is successfully won at a DMV refusal revocation hearing. For most people, losing their right to drive has far-reaching ramifications.

As every case is different, Danny will meticulously walk the client through every step of the process to be sure no stone is left unturned and that he has developed a compelling argument to present at the DMV Refusal Hearing.

As an experienced drunk driving defense lawyer Danny moves into action immediately to challenge a person’s license revocation due to a Breathalyzer refusal. There are very strict timing rules related to challenging DMV refusal revocations and missing the initial early deadline will make it impossible to challenge the one-year revocation of your driving privilege.

If you have a client or know of an individual who is facing a revocation of his or her North Carolina driving privilege for refusing to take an Intoximeter EC/IR II breath test or blood test, contact Glover Law Firm today to discuss a possible referral and representation. At Glover Law Firm, you can be confident that any client you refer to us for representation in a refusal hearing will be taken care of completely. For attorneys referring these cases there is an added benefit that you will then receive a transcript of the officer’s “under oath” testimony that you can use at the eventual DWI trial.

See More: Why Hire a DWI Attorney

North Carolina implied consent laws require that a driver submit to a chemical analysis test, i.e., an Intoxilyzer breath test at the station or a blood test. If the chemical analyst reports the driver as having willfully refused either test, the driver’s license is revoked automatically for a period of one year due to a Breathalyzer test refusal, even if not convicted at trial, unless the driver and his/her attorney successfully contest the revocation.

North Carolina now uses the Intoxilyzer EC-IR II. According to the manufacturer, the EC-IR utilizes both electrochemical sensor (EC) and infrared sensor (IR) technology. The Infrared system purportedly monitors, in real time, both alcohol and carbon dioxide concentrations in the breath. The electrochemical sensor system then quantifies the alcohol concentration in a breath sample. Every driver in North Carolina has, by law, impliedly consented to blow into this machine if charged with a DWI or other implied consent offense, and the refusal to do such, and/or the refusal to give a blood test, can result in this refusal revocation.

The process involved in obtaining a Refusal Hearing with the DMV is as follows:

• A person is arrested and the chemical analyst reports to DMV that the driver willfully refused to take an Intoxilyzer breath or blood test.
• DMV sends a letter to the driver indicating that DMV will, within a few days, revoke the driving privilege for one year.
• Prior to the beginning of that revocation, the driver, or his/her attorney, must request a hearing with DMV to fight that revocation. If that deadline is missed, then no hearing will be allowed later and the opportunity to fight the revocation is lost forever.
• DMV will set a hearing in the county of the arrest. Typically, the hearing will occur several months later. The driver must be present at the hearing or the driver automatically loses. During this waiting period the driver continues to drive (after the initial 30-day revocation is over).
• At the hearing a DMV hearing officer, not a Judge, listens to the evidence and answers the following five questions:
  1. The person was charged with an implied-consent offense or the driver had an alcohol concentration restriction on the drivers license pursuant to S. 20-19;
  2. A law enforcement officer had reasonable grounds to believe that the person had committed an implied-consent offense or violated the alcohol concentration restriction on the drivers license. Danny Glover, Jr., is certified as administrator of the NHTSA Standardized Field Sobriety Tests, giving him a deep understanding of all of the details associated with the science behind DWI testing and arrests, including breath and blood testing
  3. The implied-consent offense charged involved death or critical injury to another person, if this allegation is in the affidavit;
  4. The person was notified of the person’s rights as required by subsection (a); and
  5. The person willfully refused to submit to a chemical analysis.

If the hearing officer answers “yes” to all applicable questions, then DMV will revoke the license for one year. It does not matter whether or not the driver is ever convicted of DWI in court.

If the driver loses the DMV hearing, an appeal to a Superior Court Judge is allowed. Upon appealing the DMV’s decision, the driver continues to drive until the Superior Court hearing, which typically occurs several months later. At the hearing the Superior Court Judge will review the record and transcript of the hearing to determine whether there is sufficient evidence in the record to support DMV’s findings of fact and whether the conclusions of law are supported by the findings of fact and whether DMV committed an error of law in revoking the driver’s license.

DMV hearings can be especially difficult to win, especially at the DMV hearing officer level.

Experienced representation is needed in order to have the most well-developed and thoroughly presented defense. Danny thoroughly completes all of the necessary paperwork for the hearing to make sure that all necessary actions are completed within the required time limits. Then he researches all legal issues to give you the best possible chance of winning your case.

At Glover Law Firm we take the time to fully assess each client’s case in order to strategize the correct and potentially effective defense tactics, treating every client as unique. There are no cookie-cutter solutions in our approach.

Contact us for more information if you are facing a DMV refusal revocation.

This is a video about refusing breath tests and what happens to your license if you are marked as a refusal.

Once you’re taken to the breath test room and we’re talking about the Intoximeter EC/IR II machine in the building. We’re not talking about on the roadside with the portable breath test.

We’re talking about in the building on the big machine. If the officer marks you as a refusal, then the magistrate will take your license for 30 days. Then the officer is supposed to submit paperwork to DMV and then DMV will send you a letter indicating that because you were marked as a willful refusal to take the test, DMV is going to revoke your license for one year.

That will come in a letter. That letter will also tell you that you have a right to a hearing. I do a lot of DMV refusal hearings.

It’s important to note that this is a completely separate case from the DWI. It does not happen in court. It does not happen with the judge. Instead, it often happens at a local DMV office.

The DMV hearing officer is both the judge and the jury in this case. What happens at the refusal hearing may have no impact on what later happens in court with the DWI. What happens in court with the DWI oftentimes has no impact on the result of the refusal hearing. They’re completely separate cases even though they arise out of the same DWI arrest.

It’s important though as soon as you get that letter to contact an attorney who regularly does these DMV refusal hearings because that letter is going to tell you that your revocation for the willful refusal is going to start within just a few days, a week at most.

"You have only that small window of time to request a hearing or you forever lose your right to fight that one year refusal revocation" – Danny Glover

Once you have this refusal hearing with the DMV hearing officer, the DMV hearing officer will send a letter letting you know the outcome. If you lose, then the one year revocation will kick in fairly soon after the letter. Your remedy at that point is to file an appeal in superior court so that a superior court judge can review the record of the hearing to determine whether there was a sufficient basis for DMV’s decision. Several years ago, the law changed.

That is now simply a record review. You don’t get to have a new hearing. You don’t get to hear the evidence again.

The judge reviews the transcript of the hearing, reviews the exhibits to determine whether there was a sufficient basis for DMV to make its decision. If he finds that there was, then the decision of DMV is upheld and your revocation begins.

If he finds there was not a sufficient basis, then in my opinion, his job then is to reverse and negate the one year refusal revocation. Although I have heard events just as where the judges will simply send it back to DMV for further proceedings. Although frankly, I don’t believe that’s allowed by statute.

• North Carolina DWI Laws