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Implied Consent

Do I have to consent to tests?  What does “Implied Consent” mean in North Carolina?

 

When you are arrested for DWI the first thing you should do is to contact an experienced DWI defense attorney. Bill Powers travels throughout the state of North Carolina, helping people charged with DUI and impaired driving offenses. Whether the prosecution has evidence against you or you are facing enhanced penalties due to the Implied Consent law, Bill Powers can help you with your case by providing sound legal advice, seeking to protect your rights at all times.

Many states, including North Carolina, have an Implied Consent law. This law applies to all licensed drivers in the state and all licensed drivers that are driving in the state. So even if you are a licensed driver from another state that does not have an Implied Consent law, driving on North Carolina’s roadways makes you subject to this law. Put simply, it is “implied” that you “consent” to chemical testing, which includes obtaining samples of blood, breath and/or urine.

Under this law, by being a licensed driver you are agreeing to submit to a chemical test (blood, breath or urine) if police believe that you are driving while intoxicated or subject to an impairing substance. Remember, the state enacted this law to get proof that you are at or above the legal limit of .08%. It is important to understand that it is possible to be charged with Driving While Impaired with readings UNDER .08. It is also possible to be arrested for DWI in cases where illegal and even certain lawfully prescribed medications have recently been in your system. It has been long assumed police cannot force you to take a chemical test; that is not entirely true, as DWI Courts in North Carolina are encountering an increasing number of “blood warrant” and even “compelled blood seizures” under the new DWI Statute. Police and other law enforcement should explain to you that there may be penalties, such as loss of your driving privileges, for refusing to submit to testing.

If you choose to refuse a chemical test, the prosecution may not have a breath, blood or urine test to use against you in court as evidence that you were DWI, although there is an increasing trend to compel testing. The State also may attempt use your refusal to try to convince a judge or jury that you knew you were guilty, and therefore refused the test. The unwillingness to submit to blood, alcohol or urine testing may be used as a “negative inference.” What that means is the jury and the Court may infer from the evidence that you did not want to submit to testing because you knew the reading would be at or above the legal limit for impaired driving. That also would apply to blood testing for the metabolites of certain lawfully prescribed medications and illegal drugs. Although the negative inference has been found constitutional in North Carolina, there are substantial legal issues to be argued with the appellate courts regarding “forced” or “compelled” testing.

You normally face consequences for refusing to take a chemical test in North Carolina. The DMV can automatically suspend your driver’s license once they are notified that you were arrested for DWI and refused the breath or blood test under the Implied Consent law. You may be entitled to a DMV hearing on the subject. Time is of the essence in requesting what is called a Willful Refusal Hearing.

If you refused to take a chemical test, immediately contact DWI defense attorney Bill Powers of the Law Offices of Powers McCartan. He will begin to build your defense by procuring arrest documentation such as the Arrest Affidavit, the Chemical Analyst Affidavit, the Charging Officer Affidavit, the Alcohol Influence Report (AIR) or the Driving While Impaired Report (DWIR). There may also be important video tape of your arrest on scene and during breath testing at the jail or police department. It is important to make certain police followed proper protocol during your stop, arrest, seizure, processing, and release from custody.  

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Modified Transcript of “Implied Consent Laws in North Carolina” for the Hearing Impaired

 

Hey there, this is Bill Powers and this is a page that we’ve had on our website forever since we’ve probably had a website, I can tell. It’s called Implied Consent Laws. It’s an area that’s been there forever, but is really much more relevant now, today as we sit here, in the last year or so than it’s been in maybe, I don’t know, 20 years. That’s because there have been some important opinions coming down from our appellate courts, both in the United States and across other states, and to some extent, North Carolina, regarding implied consent laws.

Now, the best way I can kind of explain to it is that the state of North Carolina issues your valuable piece of plastic, your driver’s license to you. You’re meeting all the requirements, having insurance, social security card, things that says, “Here, you’re free to drive.” As a condition of receiving that license, it is assumed that you agree to get tested for alcohol or other impairing substances if the requisite legal merit is there. Meaning, you’re implied to say that I’m going to agree to testing for alcohol or other illegal drugs if a police officer believes that you’re appreciably impaired.

Now, there are a bunch of different legal standards involved and I don’t want to get too much into legalese and the terms that we use in court. I’m trying to explain the big picture here to you. It’s a contract of sorts between the state and the governed. Meaning we’re going to let you drive on our roads, you’re going to agree to get tested when we ask you to get tested, and if you don’t, then we can take certain actions against you and your driver’s license. Now, North Carolina. It’s important to point out. North Carolina, it’s not illegal yet. Criminally illegal, meaning it’s not a criminal charge in and of itself to refuse to submit to blood, breath, or even urine testing, which is the third protocol. That is not the case in other states and it could indeed someday become a criminal offense to refuse.

If you impliedly consent, what does that mean? Well, it’s not written anywhere, when you sign off on your paperwork, “Bill Powers. I agree that if I get pulled over, I’m going to submit to the test.” It’s implied. It’s part of the social contract. Maybe we should sign a statement that says that. Reason why is, can say, “Well, I’m a citizen. I’m the one that owns the roads, not the state of North Carolina.” I don’t want to get too involved with the libertarian nuance there, but the point of the matter is, is that it’s just always been assumed that you implied consent and if you don’t follow through, we can take away your driver’s license. In some states, we’re going to criminally prosecute you for doing that.

Well, the United States Supreme Court has come out with some interesting opinions, and we’re still arguing about this in North Carolina. I have an opinion about it. As you might guess, I’m pretty strongly opinionated about many things when it comes to the law. My friends on the other side of the aisle, which would be the prosecutors and my friends, I guess on the bench, would disagree with me in the reading or the interpretation of the law. My view is, with the status of the law now, is that you may impliedly consent to give a breath sample, blow into that tube, and the logic is that it’s a pretty minimally intrusive test, meaning that it’s not painful. It doesn’t cause you any harm. It’s not a really big deal if you don’t have a warrant, that we’re not really trampling on your rights as an individual.

The Supreme Court has some opinions saying that maybe that’s not true with blood. The fear of needles, or the pain of a needle being stuck in your arm is much more intrusive. It’s much more invasive and some people now believe that in taking blood from you would require a warrant from a judicial official, as opposed to just an officer saying, “I had these reasonable grounds, or I had this probable cause to ask you to submit to this testing under 20-16.2,” which is the General Statute of North Carolina. Generally, there are other statutes involved, but that would mean that then you don’t impliedly consent to your blood being drawn, meaning that if they want blood, they got to get a warrant unless there’s some other exception to what we refer to as the Fourth Amendment, or the warrant requirement. That’s where we get into these compelled blood samples. Heaven forbid, we’re not really using urine in North Carolina, but what does that bring up?

It’s complicated. This is an area in law that we have a fair amount of experience. We’ve litigated this in district courts, superior courts. Some of our cases have gone up to the North Carolina Supreme Court regarding compelled blood, regarding the protocols of obtaining a warrant, regarding when is something implied, not implied. It’s developing, I think, in the next few years. It’s 2017. We’re going to see a continued refinement of what the law is in North Carolina. We do our best to follow constitutional precepts. Every once in a while, the people in Washington, D.C., the United States Supreme Court say you ain’t doing it right. It appears where we are right now. It could change.

If you have questions, if you would like to talk more about an implied consent, whether or not they can force or compel blood, whether they can force or hold you down and make you blow into something, or force or hold you down and, however that’s done, get a urine sample, I don’t want to really think about that, but it’s technically possible. Heck, years ago, forcing somebody to give breath was unseemly, was unheard of. When I first started practicing law, you had to have two separate people from law enforcement. One was the charging officer and one was the licensed chemical analyst. You had to have two separate people just because we weren’t going to take the word of one person. Well now, the charging officer can also be the licensed chemical analyst. What may be anathema now, taking blood, or anathema 20 years ago, taking blood seems a no-brainer to some people. Does urine ever fall into that? Who knows?

We enjoy talking about these issues. They’re intellectually stimulating. They’re a perfect combination of law, and science and technology, the kind of things that dorky guys like me like to learn about and talk about and discuss, because that’s what jazzes us as lawyers. We like the scrum. We like the fray. We like, for lack of a better term, the battle in court. We like helping people. We like defending our clients. We like making sure that the rules are followed, both by the state and law enforcement, and they’re enforcing the laws against us. We see this as kind of our patriotic duty. Give us a call, 704-342-HELP, and I’d love to speak to you.