DWI (Driving While Impaired/Intoxicated) and Implied Consent in North Carolina

If you’re driving a vehicle on the roads of Raleigh or elsewhere in North Carolina, then as a matter of law you have already “impliedly consented” to submit to a chemical analysis of your person, to determine your blood alcohol content, if a law enforcement officer has probable cause to believe that you are driving while impaired by alcohol or drugs. In short, in exchange for the privilege of driving a vehicle in North Carolina, you were forced — whether or not you were even aware of it — to give up the right to be free from an intrusion by the State into the chemical composition of your body, at least under certain circumstances.

If you have been subjected to such an intrusion in the Raleigh/Triangle area and have been charged with a DWI (driving while impaired / intoxicated, and commonly known elsewhere as a DUI / driving under the influence, or simply drunk driving), then you would be well advised to contact a Raleigh DWI lawyer immediately. Below is an overview of this area of law, which should not be treated as comprehensive and does not address every scenario or component of the law.

Under the North Carolina General Statutes, § 20-16.2(a):


Any person who drives a vehicle on a highway or public vehicular area thereby gives consent to a chemical analysis if charged with an implied-consent offense. Any law enforcement officer who has reasonable grounds to believe that the person charged has committed the implied-consent offense may obtain a chemical analysis of the person.


Further, under the same statute:


Under this section, an “implied-consent offense” is an offense involving impaired driving, a violation of G.S. 20-141.4(a2), or an alcohol-related offense made subject to the procedures of this section. A person is “charged” with an offense if the person is arrested for it or if criminal process for the offense has been issued.


In short, just by driving on the road, under the law of North Carolina, you have already given permission to the government, under certain circumstances, to erode your right to the privacy of your own breath and/or blood. In other words, you have agreed in advance to allow an erosion of your Fourth Amendment rights, as a matter of law, just by choosing to drive a car in North Carolina — even if you disagree and find such an intrusion to be unreasonable. Hence the term “implied consent,” which means your consent to such an intrusion under certain circumstances is legally implied by your act of driving a vehicle, even if you expressly do not consent.

It is worth noting here, however, that only certain tests qualify as “chemical analyses,” thereby triggering the law on implied consent. The test typically administered by police officers in the field in North Carolina, called the Alco-Sensor(R) — more generally known as a “Portable Breath Test,” or PBT — is not an approved chemical analysis for which you have given implied consent by the fact of your driving a vehicle. You are not required to submit to a portable breath test, and you may simply decline, if requested. Implied consent applies only to approved chemical analysis tests, which in North Carolina include the Intoximeter(R) 5000 and Intox EC/IR(R) II, which are typically administered at a police station, rather than in the field.

There are, however, limits on the legal trade-off of implied consent. First and foremost, a police officer cannot simply demand that anyone driving a vehicle submit to a PBT, chemical analysis, or field sobriety test of any kind. An officer must first have probable cause to believe that a suspect was driving while impaired, which must be more than a mere hunch, must be supported by evidence, and must be proven by the government. best criminal lawyer in louisiana

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