Requesting a DMV Refusal Hearing in North Carolina has many moving parts and details that you need to make sure you know.
In North Carolina, an officer who is a chemical analyst must report a refusal to submit to a breath or blood test to the Division of Motor Vehicles (DMV). Once the DMV receives notice of the refusal, it is supposed to expeditiously notify the driver who refused to submit to chemical analysis of his breath or blood, that his license will be suspended for one year. Upon receipt of the notice from the DMV, the driver has the ability to appeal the DMV’s decision to revoke his license for refusal. The timeline to send in notice of appeal is extremely short and it is wise to have a plan in place as to whether or not an appeal of the DMV’s decision will be filed prior to receiving notice from the DMV.
If an appeal is requested by the driver, the DMV will schedule a refusal hearing. The refusal hearing occurs in front of a DMV hearing officer. The hearing officer has very limited scope of 5 issues that can be raised during the hearing.
DMV Refusal Hearing: 5 Issues to Consider
According to North Carolina Law, the hearing officer can only consider whether:
(1) The person was charged with an implied-consent offense or the driver had an alcohol concentration restriction on the drivers license pursuant to G.S. 20-19;
(2) A law enforcement officer had reasonable grounds to believe that the person had committed an implied-consent offense or violated the alcohol concentration restriction on the drivers license;
(3) The implied-consent offense charged involved death or critical injury to another person, if this allegation is in the affidavit;
(4) The person was notified of the person’s rights as required by subsection (a); and
(5) The person willfully refused to submit to a chemical analysis.
Representation in a DMV Refusal Hearing
When I represent a client during a DMV Refusal Hearing, my attack points are normally limited to number 2 (was there probable cause to arrest my client), 4 (was the person given his implied consent rights in writing and orally by the officer), and 5 (was there actually a refusal).
The hearing officer takes testimony present by both the Petitioner (driver) and the Division (DMV). Often times both the arresting officer and the officer that attempted to perform chemical analysis (sometimes this is the same officer) are needed to testify.
After hearing the evidence related to the issues above, the hearing officer will generally take a couple of days and then notify the driver in writing by mail of the decision to either uphold the refusal or throw out the refusal.
If the hearing officer does find that a driver’s license should be suspended following a refusal hearing, the driver can appeal this refusal suspension to a superior court judge.