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Pre-Arrest Test


North Carolina DWI “Pre-Arrest” Tests

What many people in North Carolina don’t understand when it comes to a DWI investigation is their rights. Under North Carolina law, there is a special provision allowing a person that is being investigated for Driving While Impaired to request a pre-arrest test. This special right is listed in the North Carolina General Statutes § 20-16.2, which states in the pertinent section the following:

(i) Right to Chemical Analysis before Arrest or Charge. – A person stopped or questioned by a law enforcement officer who is investigating whether the person may have committed an implied consent offense may request the administration of a chemical analysis before any arrest or other charge is made for the offense. Upon this request, the officer shall afford the person the opportunity to have a chemical analysis of his or her breath, if available, in accordance with the procedures required by G.S. 20-139.1(b). The request constitutes the person’s consent to be transported by the law enforcement officer to the place where the chemical analysis is to be administered. Before the chemical analysis is made, the person shall confirm the request in writing and shall be notified:

  1. That the test results will be admissible in evidence and may be used against you in any implied consent offense that may arise;
  2. Your driving privilege will be revoked immediately for at least 30 days if the test result is 0.08 or more, 0.04 or more if you were driving a commercial vehicle, or 0.01 or more if you are under the age of 21.
  3. That if you fail to comply fully with the test procedures, the officer may charge you with any offense for which the officer has probable cause, and if you are charged with an implied consent offense, your refusal to submit to the testing required as a result of that charge would result in revocation of your driving privilege. The results of the chemical analysis are admissible in evidence in any proceeding in which they are relevant.”

Winston-Salem DWI Attorney J. Scott Smith

This pre-arrest test right, if requested during the officer’s investigation, makes law enforcement stop their investigation and take you downtown to the EC/IR ii machine for a breath sample. If you do not give a sample at that time, law enforcement may continue their investigation and arrest you. However if you are NOT impaired, by asking for this right, it could keep you from having an arrest record. The time to ask for this pre-arrest test is BEFORE law enforcement begins ANY Standardized Field Sobriety Tests. In other words, if you wish to use this statutory right, you must ask for it without delay, preferably when the officer first asks you if you have been drinking.