I got arrested for DWI and the cop said I didn't blow! What now?
Under current North Carolina law, the Department of Motor Vehicles (hereinafter "DMV") has the authority to issue and revoke driving privileges pursuant to compliance with certain civil rules, regardless of the outcome in a DWI prosecution. Under North Carolina law, if you are taken into custody for suspicion of DWI and a law enforcement officer requests that you submit to an analysis of your breath (i.e. being asked to "blow")and the officer determines, in his discretion, that you did not willfully submit to that request, the DMV will suspend your driving privileges for one year. Often times, I represent clients that assert that they attempted to blow, but the Intoximeter did not register the blow. In this case, the law enforcement officer is most often going to consider this a willful refusal to blow. In any event, if the officer submits paperwork to the DMV and alleges that the defendant willfully refused the request to give a breath sample, the DMV will issue a letter of revocation
I got a suspension letter from the DMV! What do I do next?
YOU SHOULD IMMEDIATELY CONTACT A LAWYER IN THE COUNTY YOU WERE ARRESTED IN TO PROTECT YOUR RIGHTS. Once you have received a suspension letter from the DMV after a refusal report from an officer, you have 10 days from the date of the letter to formally request a DMV hearing. There are no exceptions or extensions of time available. If you do not request a hearing in a timely manner, you will lose your right to challenge the one-year suspension of your drivers' license. Even if you are not convicted of the underlying DWI, your driving privilege will still be suspended. Once your hearing request is filed, your license privilege will remain active, pending the outcome of the hearing.
I have a DMV hearing scheduled. What can I expect?
Your lawyer will be experienced in this process, but basically, you can expect a few things:
1. It is the officer's burden to demonstrate that you were aware of your rights and that you were offered the chance to blow and that you either did not blow or that you blew in a manner to subvert the test.
2. Once the officer establishes that by evidence, you and your lawyer can offer evidence opposing that or evidence that you have or had a medical condition which prevented you from giving a sample, despite your desire to do so.
3. You can present evidence (such as medical records) or witnesses to support your contentions that you were not aware of your rights, or that you attempted to submit to the test, but couldn't, even though you tried.
The DMV officer will render a decision, but typically not right away. The DMV will send you and your lawyer a letter and Order after your hearing.
What happens after I receive the DMV's decision?
If the hearing officer finds that you did not, pursuant to North Carolina law, willfully refuse to submit to the breath test, than your license privilege will remain active. However, if the officer finds that you did willfully refuse the breath test, than the DMV will revoke your license for one year. Regardless of the outcome of any DWI prosecution in criminal court, your privilege will be suspended for one year.
You may qualify for a limited privilege to drive after six months. You will need to file a petition with the court. See the additional sources below for a link to the AOC form. It is best to have the assistance of a lawyer for this process.
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