The Alcohol Breathalyzer Test: Know Your Rights

In North Carolina, driving while intoxicated (DWI), is considered a very serious offense!

Based on information such as if you have been charged before, whether anyone was injured, whether you had a revoked license and what else was happening when you were arrested, you could face:

  • Incarceration
  • Excessive Fines
  • Suspension of License
  • Community Service
  • Higher Auto Insurance Premiums

Because so many DWI charges begin with an Alcohol Breathalyzer Test, it is important to know your legal rights!

What is an Alcohol Screening Test?

The Preliminary Breath Test (PBT), or a Preliminary Alcohol Screening Test (PAS Test) also commonly referred to as a “portable breathalyzer” or “Alco-Sensor” is a normal part of every police officer’s field sobriety toolkit. With a PBT or PAS Test, an officer can get a general idea of an individual’s BAC reading at the time of a traffic stop or other interaction with law enforcement.

Despite the usefulness of the PBT or PAS Test in allowing an officer to have an idea of how intoxicated a person is, because the test results can vary by as much as 15% from an individual’s actual BAC, the results of this test are not admissible in a court of law, except insofar as it shows positive or negative for alcohol.  In many states, portable breathalyzers, or Alco-Sensors, have been found to measure BAC unreliably and inaccurately. In most of these situations, individual’s PAS Test results show a BAC reading that is higher than the individual’s actual BAC according to other more reliable testing methods.

What Are Alcohol Breathalyzer Testing Procedures?

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In North Carolina, if you are arrested you are likely to receive an Intoximeters EC/IR breath test.  An EC/IR II is the breath test that, if done correctly, is admissible in court to prove your actual BAC.

Each of these tests must follow a standardized procedure:

  • It is mandatory that you are allowed to contact an attorney and have a witness present before you begin the test. If you choose to exercise this right, you will have 30 minutes for your witness to arrive.
  • It is also essential that the officer or official administering your test possess the correct certifications.
  • You must receive two distinct tests and the results much end up within 0.02% of each other.
  • You also have the right to get an additional blood test done, at your own expense, as soon as you are released from custody.

Failure for law enforcement to follow these procedures could invalidate any BAC test results that they might hope to use against you in the court of law.

It is extremely important to know your rights whenever consenting to a field analysis test of this nature.

What Else Can Impact Impairment?

Besides Blood Alcohol Concentration (BAC), the following factors can impact impairment:

  • The Amount of Alcohol Consumed
  • The Amount of Non-Alcoholic Food and Beverages consumed before, during and after Consumption of Alcohol
  • The Duration of Alcohol Consumption
  • Your Gender
  • Your Body Weight and Physical Composition
  • Gastric Bypass Surgery or Diabetes

How is Chemical Testing Used for Measuring Intoxication?

Chemical Testing is a far more reliable means of attaining an accurate BAC reading because of the controlled environment of the police station relative to that of the roadside field sobriety test.

Chemical Testing typically entails breath analysis or a blood test.  Each of these methods is more accurate and reliable than a roadside PAS Test.

Despite this, even the results of Chemical Testing for BAC can be compromised. Irregular breathing patterns, blood, and vomit have been known to impact stationary breath analysis testing as typically carried out in police departments.

Why Was I Offered a Blood Test after my DWI Stop?

The Blood Test is often considered the most accurate of the Chemical Testing methods, though it is not commonly utilized unless an officer feels a breath test may have been compromised or inaccurate in some specific way.

Blood Tests are frequently used if the officer suspects that the impairing substance was drugs instead of alcohol.

Blood Tests are also more expensive to process then Breath Tests.

Urinalysis BAC Screenings are generally considered reliable since their results must be verified in a laboratory setting. However, because of the extra time it can take to process these Chemical Tests, many jurisdictions, such as North Carolina, do not use them.

Do I Have to Consent to a PAS, Chemical or Blood Test?

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In the State of North Carolina, there is an implied consent law in regards to being tested for intoxication while driving.

What this means is that by receiving a North Carolina driver’s license, you have already consented to allow the police to test you in the event that you are suspected of being intoxicated.

However, you still have the right to refuse.  However, because a refusal would essentially break your driving contract with the State, if you refuse to take a blood or breath test after you are arrested, your license is automatically suspended for 1 year.  A DMV hearing is allowed in that event.

May I Remain Silent During a DWI Stop?

After being pulled over for suspicion of DWI, it is usually not in your best interest to launch into a lengthy and detailed conversation with the police officer. Everything that you say to the arresting officer will be used to build a case against you for DWI.

You certainly have the right to remain silent during this time, though it is important to be aware that there are certain laws revolving around your consent to submit to chemical testing sample which could be compromised by choosing not to say anything.

The choice to remain silent during a DWI roadside stop could seem suspicious, but it is completely allowed and advisable. While the arresting officer is likely to try to get you to engage in conversation, it is important to know that you do not have to engage with them.

You might not be able to talk your way out of a DWI but you are likely able to talk yourself into a DWI conviction if you choose to be too casual or forthright during a roadside stop.

A police officer may ask that you step out of your car so that he or she can conduct a field sobriety test. However, you have the legal right to refuse such roadside sobriety tests and PBTs.

Despite your refusal, an officer could pursue a warrant which, if granted by a Magistrate based upon probable cause, would allow the state to secure a chemical testing sample from you, even against your will.

It is important to remember that the choice to refuse a chemical test results in a mandatory license suspension, even if you have not had anything to drink at all.

As mentioned previously, if the police are really interested in securing a chemical sample and there is a lawful reason to pursue one to build a case against you, they will forcibly take a sample anyway.

Facing a DWI Charge in North Carolina?

Securing a qualified legal representative as soon as possible following any DWI charge is the absolute best way to promote a positive result from a subsequent trial.

 

These charges are considered very serious and can result in expensive fines, the loss of motor vehicle driving privileges, professional licenses, and even incarceration.

If you or anyone you know has been charged with a DWI related crime, contact Glover Law Firm as early as possible so that proper work can be undertaken to pursue defense strategies to help you as much as possible.