I Refused The Breathalyzer, Can I Still Be Convicted Of DWI?


Since the police have no numerical reading of your breath can you still be convicted of DWI?

We are often asked about the choices one must make when being confronted by an officer of the law during a traffic stop. In the course of a DWI investigation a person is often confronted with the choice to either take the breathalyzer test or refuse to blow. When a person refuses the breath test, can one still be convicted of DWI?

The most basic answer is yes, a person can still be convicted of DWI in North Carolina even though the police have no breath result.

Just because the police did NOT get a sample of a person’s breath DOES NOT mean they still can’t prove the person was impaired. In the State of North Carolina, there is 3 ways to prove a person is IMPAIRED. The prosecution can prove someone is impaired by:

  1. Proof that someone is under the influence of an impairing substance;
  2. Proof that after someone has an alcohol concentration of .08 of higher at any relevant time after driving;
  3. Proof that a person has any amount of a Schedule I controlled substance, as listed in G.S. 90-89, or its metabolites in their blood of urine.

Below is a list of ways the government can prove a person is impaired without having a person’s breath alcohol result.

With A Blood Test

  1. If a person refuses to give a sample of their breath the police can go get a warrant from a magistrate judge to give them the right to take the blood from a person arrested for DWI.
  2. The police can get consent from a person to give them a sample of their blood so they can use the result in court.

Prove Someone Is Under The Influence Of An Impairing Substance

  1. This is probably the most common way the government tries to prove a person is impaired without a breathalyzer reading. The state must prove a person is APPRECIABLY IMPAIRED. The definition of being appreciably impaired is NOTICEABLE impairment. There is no x + y = z formula on how to prove noticeable impairment. Rather it is determined by on a case by case basis. Common things which are looked at in court in determining if someone is noticeably impaired is how did the person perform on the field sobriety test, was the person steady on their feet, was a person able to answer questions, could they speak without slurring their words, could a person stand up out of the car OK, follow the cops instructions, did they drive their vehicle OK, etc…

Proof That A Person Has Any Amount Of Schedule I Controlled Substance In Their System

  1. The state can prove this by a blood test the police officer obtained or gather the medical records of a DWI arrestee who was taken to the hospital to determine what was in the person’s blood.
  2. Admissions given by the DWI arrestee. A person often admits to the police officer they have consumed some type of Schedule I impairing substance. Anything that a person tells the police officer under most circumstances can be used against them in court. With that said a police officer can testify in court a DWI arrestee told them they did cocaine or took Zanex prior to driving. This could be proof the person had a Schedule I controlled substance in their system when they drove.


  1. You can still be prosecuted and proven guilty of impaired driving even though the state does not have a numerical breathalyzer reading on you.
  2. Refusing a breathalyzer test can lead to a 1 year suspension of your driver’s license. Be on the lookout for a letter from the NC DMV, make sure NC DMV has your current mailing address on file so you will get the letter.
  3. Always consult an attorney if you have refused a breathalyzer test right away because you can still be prosecuted and proven guilty of DWI.

Dealing with a DWI case is complicated. If you have refused a breathalyzer test and have a DWI case the best course of action is to consult with a seasoned DWI attorney immediately.