The 3 Big Consequences of Refusing a Breathalyzer Test in a DWI Investigation


You have been recently arrested for DWI and refused the breathalyzer test. What are the consequences of refusing the breathalyzer test? What are your options now?

In the course of a DWI investigation, a person suspected of driving under the influence is often confronted with the choice to either take the breathalyzer test or refuse to blow. One of the most common questions people ask when talking about DWI’s is “should I blow or not”? This article will not address that question, but rather address the issue of consequences when a person chooses NOT to blow:

Consequence #1 – Civil Revocation of Your Driver’s License

The State of NC, through the DMV can revoke your driver’s license for 30 days from the day you refused the breathalyzer test. N.C.G.S. 20-16.5 governs the civil revocation of your driver’s license. You have 3 options after a civil revocation has been put into place.

  • You can apply for a limited driving privilege after 10 days of the civil revocation being in place. In order for a Judge to grant you a limited driving privilege after 10 days you must get an alcohol assessment and a proof of car insurance from from your insurance company (the form is called a DL-123). Lastly, the limited driving privilege will cost you $100.00 dollars. The limited driving privilege will allow you to drive for the last 20 days of the 30 day revocation period. The limited driving privilege gives you the right to drive for work and household maintenance during hours specified in the privilege.
  • Request a hearing to fight the civil revocation. You have a right to contest the validity of the Revocation before a magistrate or judge. To do so, a written request must be made within ten (10) days of the effective date of the revocation. If a hearing is requested your license stays revoked unit the decision of the hearing is made.
  • Do nothing and allow the 30 day revocation period to expire. You can choose to NOT drive for 30 days and allow the revocation period to expire. If you choose to do nothing, you or your attorney will need to go to the courthouse at the expiration of the 30 day period to pick up your driver’s license and pay the $100.00 dollar civil revocation fee.

Consequence #2 – Losing you Drivers License for 1 Year

The most common thing people hear is if you refuse to blow, the State/DMV will revoke your driver’s license for 1 year. This statement is somewhat true. In order for the State/DMV to revoke your driver’s license for 1 year many things have to take place:

  • The officer who performed the breathalyzer test will have to file an affidavit with the NC DMV. It is on the officer to send the form to the NC DMV. The way you will know this happens if you get a letter from the NC DMV saying they are going to revoke your driver’s license for 1 year. This is commonly done by the officer but there are definitely times when officers forget to do this.
  • When you receive the letter from NC DMV revoking your driver license you have a right to request a hearing to contest the revocation. There are many reasons you need to request a hearing and in many instances you can WIN your hearing. There are numerous ways to win the DMV hearing and you should always request the hearing. The one key point to know if when you receive a letter in the mail from NC DMV which states they are planning on revoking your driver’s license you have only a certain number of days to request the hearing. IF you do not request the hearing in that timetable, you waive your right to the hearing and the suspension goes into effect.

The most important point to remember if you have refused a breathalyzer test is to be on the lookout for the letter from the NC DMV. This letter starts the timetable in you being able to request the hearing. There are many reasons for requesting the hearing and you always want to consult with an attorney when you receive the letter.

Consequence #3 – Using The Refusal In Court Against You

The State has the right to use the fact you refused the breathalyzer test in your DWI trial. Arguably this is the least consequence of the refusal but something a person needs to know and can expect to deal with. District Attorney’s will often argue a person refused the breath test because that person knew they would blow over the legal limit.


  • 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
  • Just because you refused the breath test does NOT mean your driver’s license will automatically be revoked for 1 year
  • You have a right to contest and have a hearing about the refusal of a breath test

Always consult an attorney if you have refused a breathalyzer test right away because there are very specific rights you lose if certain requests are not entered in a timely manner.

Dealing with a breathalyzer refusal is complicated. There are hearings to be requested, civil revocation fines to pay, and many other points to consider. If you have refused a breathalyzer test the best course of action is to consult with a seasoned DWI attorney immediately. If you have been charged with a DWI crime, call us today to speak with a criminal law attorney.