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Implied Consent Law in North Carolina

The implied consent law in North Carolina, which can be found at NCGS § 20-16.2, is clear: “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.”  If any law enforcement officer has reasonable grounds to believe a person charged has committed an implied-offense may obtain a chemical analysis of that person.  Although the language “charged” may seem to imply that formal charges or criminal proceedings must have been brought against and individual, the text of North Carolina’s implied consent statute clearly states that the term simply means a person has been arrested for an offense or criminal process for the offense has been issued.  Implied consent provisions for testing only apply to “implied-consent offenses,” which are defined as impaired driving or any offense that has been specifically made subject to the implied consent statute.

Testing must be performed by a chemical analyst or law enforcement officer who is authorized to perform chemical testing.  Before any testing may be performed, the individual administering the test is required to give oral and written notice of the following:

-          The individual has been charged with an implied consent offense

-          The individual may refuse to be tested

-          Refusal of the test will cause license to be revoked for at least one year, and the officer may compel testing under other laws

-          Test results or refusal to submit is admissible at a later trial

-          License will be immediately revoked for 30 days if:

  • BAC is .08% or more
  • BAC is .04% or more, and vehicle was commercial
  • BAC is .01% or more, and driver is under 21 years of age

-          The individual may seek additional test after release

-          The individual has the right to call attorney for advice and select a witness to view the testing procedures, but the test will not be delayed more than 30 minutes.

This notification is meant to inform the driver of all of his or her rights relating to testing, including the right to refuse to be tested.  This notice does not need to be given if an individual is unconscious or incapable of refusal because the driver is deemed to have consented to testing.

Refusing to submit to implied consent testing will cause a person’s license to be suspended for 12 months.  The driver will be allowed a hearing, if requested within the appropriate time period, in which he or she may subpoena any party they deem necessary, including the charging officer and chemical analyst.  This hearing will not determine with guilt or innocence of the offense, but is limited to determining if the automatic 12 month revocation was proper.  If the revocation is upheld at this hearing, the driver still has the right to petition the superior court of the county where the charged conduct occurred for review of the decision.

Drivers who have had their license revoked under implied consent law may have the opportunity to receive a limited driving privilege if they meet the statutory requirements.  This is only allowed after the license and been revoked for a minimum of six months and only when it can be shown that the driver meets all requirements for the limited privilege.

North Carolina implied consent law places many requirements on officers and analysts, including procedural requirements that are not discussed here.  Although implied consent law may be difficult to understand, receiving the help of an experienced attorney can likely lead to a better outcome.

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