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If I refuse to blow on breathalizer but pass the field sobriety test what are my options?

Fayetteville, NC |

I was recently stopped by military police...initially for speeding 63 in a 50 mph zone. I was transporting a friend who was drinking heavily and the vehicle had the smell of alcohol. I did have two mixed drinks earlier that night and stopped about roughly two hours earlier.
When asked to take the field sobriety test I took it and passed, but when the military police officer told me to take the breathalizer I refused. I was then cuffed and put in the police vehicle without having my Miranda rights read. When I arrived at the station I was asked again to take a breathe test to which I refused and again was not given my Miranda rights. I was released to my unit but I recieved two notices that my license has been suspended for refusal to take the breathe test. What can I expect from this

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Attorney answers 2


This question is a mixed bag of military (UCMJ) and state administrative law.

When you say that you "passed" the field sobriety tests, I must ask how you know? Your interpretation of passing and the MP's are likely very different. If indeed you did pass, there may be a problem with the officer's probably cause to arrest. If that is the case, he likely didn't have grounds to invoke North Carolina's expressed consent law.

Obviously, you have a very complicated issue. Please consult with an attorney who is knowledgeable in both the UCMJ as well as the state laws in your jurisdiction.

You should do so as soon as possible as most states have a time limit in which to request an administrative law hearing concerning your driving privileges.

Best of luck.


I don't practice UCMJ or NC law, but assuming that you did "pass" the FSTs it's my opinion that your only hope is to take it to trial. At that point the refusal will come in, but you can override it with evidence from the FSTs and other evidence that you were not impaired to an appreciable amount.

With respect to the suspension, generally speaking you should see if there is an administrative hearing available to challenge the suspension. The DMV has to prove that your refusal was knowing and intelligently made and was actually a refusal.

Edward J. Blum