Breathalyzer Tests

A police officer can ask the driver of a vehicle to submit to an alcohol screening test within a “relevant time” after driving if the officer has:

  1. Reasonable grounds to think that the driver has consumed alcohol AND has
    1. Been involved in a collision or accident, or
    2. Committed a moving traffic violation


  2. A reasonable and articulable suspicion that the driver committed an implied-consent crime after the driver was legally stopped.

An “implied consent crime” in North Carolina is a charge that involves impaired driving. Our laws dictate that by driving on public roads and highways, a person implies his or her consent to submit to substance testing if the officer has the grounds listed above. In implied consent states it can be held against you in court if you actively refuse to give consent to a screening test. However, just because an officer asks you to perform any breath, urine or blood screening test does not mean you have to comply. To read more about the more serious consequences of refusal to take a chemical analysis such as license revocation, click here.

Officers are allowed to request that a driver complete more than one screening test. If you did submit to the test, they can stand there and keep asking you to repeat the test until they get a result they want.

What if I Already Consented to an Alcohol Screening Test?

There are six different breath alcohol screening tests approved for law enforcement use by the North Carolina Department of Health and Human Services. They are:

  1. ALCO-SENSOR (two-digit display), made by Intoximeters, Inc.
  2. ALCO-SENSOR III (three-digit display), by Intoximeters, Inc.
  3. ALCO-SENSOR IV, by Intoximeters, Inc.
  4. ALCO-SENSOR FST, by Intoximeters, Inc.
  5. S-D2, made by CMI, Inc.
  6. S-D5, by CMI, Inc.

If one of the approved devices is not used to administer an alcohol screening test, the results of that test should not be admissible in court.

Similarly, the use of these tests is subject to regulations that, if not followed, can result in the results of the alcohol screening test being thrown out of court. First, the officer administering the breath test must be specifically authorized to administer chemical breath analysis. Not all officers have this certification. The device’s operator or agency must also check their calibration at least once every 30 days. The alcoholic breath simulators they use to check these calibrations cannot be expired and have to be changed every 30 days or every 25 tests, whichever comes first. The tests must also be used in compliance with the operational instructions the Department of Health and Human Services supply.

If you do submit to a breath, urine or blood chemical test (which is not recommended), the law enforcement officer authorized to administer the test must first inform you in writing and orally that:

  • You are being charged with an implied-consent offense

  • You can refuse the test under law but your driver’s license will be suspended for one year

    • NOTE: You can appeal this suspension but must do so immediately. If you have refused a breath test it is important to speak to your attorney as soon as possible. Also, having your license suspended is a civil action and is NOT a criminal penalty.

  • After you are released, you may get your own test done in addition to the one law enforcement performed.

  • You have the right to contact an attorney for advice and to select a third party to be a witness for the test, but the testing cannot be delayed for longer than 30 minutes after you are informed of this right.

Your defense attorney will have to request the suppression of the test if one of the issues discussed above has occurred in a Motion to Suppress. It is vital to have an experienced criminal defense attorney that is knowledgeable in implied-consent law representing you if you have been charged with a DWI. The defense attorneys at Arnold & Smith, PLLC fight on the behalf of drivers charged with DWI in courtrooms across North Carolina nearly every day.

What is “Within a Relevant Time”?

As mentioned at the beginning of this article, officers can request that a driver take a breathalyzer “within a relevant time” after the driving. Courts in North Carolina have interpreted this as being as much as hours after. This means you should be ready to politely refuse alcohol screening tests once you are taken to the station, where they may also try to get you to submit to a blood test. You have a right to refuse these tests as well.

Unless you have volunteered that you drank alcohol within the last 15 minutes (which may be used against you in court), the officer is supposed to administer the breath tests as soon as possible. If any test given without a waiting period provides a reading of 0.08 or more, the officer is supposed to wait an additional five minutes and give an additional test.

If you have been charged with a DWI, your short and long-term rights can be drastically affected. It is important to have an attorney that is not afraid to aggressively fight for your rights. Contact Arnold & Smith, PLLC today for a consultation with one of our experienced DWI defense attorneys.