If you have been charged with a DWI/DUI offense, it is imperative that you understand the legal meaning behind each of the elements of the crime. A DWI/DUI conviction can result in many negative consequences such as a possibility of jail time, a criminal record, higher insurance premiums, community service, alcohol education, substance-abuse treatment, and court/administrative fees. Specifically, defendants who are charged with driving while impaired face an automatic revocation of their license for at least 30 days, even before they have had a trial. However, in many cases, a competent and knowledgeable attorney can help you obtain a limited driving privilege after the first 10 days of this suspension.
If convicted of a DWI, you could face court fines of up to $2000, imprisonment for up to 5 years, and insurance increases of up to 400%. Many DWI convictions result in mandatory jail sentences, and you could be sentenced to jail even if you are a first time DWI offender.
A DWI conviction carries serious consequences and can affect you in more ways than one. You can lose your driver’s license, your job, your hard earned savings, and, most importantly, your freedom. North Carolina takes DWI charges very seriously and because of federal funding and public interest groups such as MADD, it is often easier to negotiate a reduction or a voluntary dismissal for a serious felony than it is a DWI charge. Therefore, it is imperative that you hire an experienced DWI attorney to make sure no stone is left unturned, to gather and review all available evidence, to find the holes, mistakes and issues in all stages of your case, and to fight to obtain a dismissal or a not guilty verdict.
While it is important to have a knowledgeable and experienced DWI attorney in your corner when facing a DWI charge, it is almost equally important to know and understand your rights and know what the officers are looking for before ever being charged with DWI. Obviously, the easiest way to avoid a DWI charge is to not drive after you have been drinking. However, if you have been drinking and will be driving there are steps you can take to avoid ever being charged with DWI or, if you are charged, then to avoid being convicted of DWI.
The State has a high burden of proving every element of the crime beyond a reasonable doubt. Therefore it is our job to raise a reasonable doubt regarding one or more of the elements to obtain a dismissal or a not guilty verdict. How do we do this? We sit down with you and have an in depth consultation regarding your case and the facts. We will determine if the officer had a valid reason for stopping you, whether you were subject to an impairing substance or if you had a BAC of 0.08 at any relevant time of driving. Below is how you can help yourself, help us obtain a dismissal or a not guilty verdict.
Before driving, make sure you have your license and registration out of your wallet, purse, and/or glove compartment and make sure they are easily accessible.
When you are driving and you see those blue lights flashing, immediately pull over. Make sure that it is an appropriate location to pull over (completely out of the travel lanes and not in a ditch). It is at this point that you must remember that the officer is watching and observing everything you do. He will come to your window and ask you for your license and registration. If you followed the advice above, good for you; if not, do not fumble with your wallet or purse, do not hand the officer your credit card rather than your license and do not have problems getting your registration. Hand the officer your license and your registration.
If the officer attempts to ask you questions (at any time), politely, respectfully, verbally and coherently refuse to answer them (do not slur your words). The officer will ask you to get out of the car, do so. Do not fall over or stumble while getting out of the car. When out of the car do not sway or lean on your car. The officer will ask you to perform field sobriety tests, again, politely, respectfully, verbally and coherently refuse to take them.
Field Sobriety Tests and Portable Breath Test
There are three Standardized Field Sobriety Tests (SFST’s), The Walk and Turn test (the heel-to-toe test), the One Leg Stand test (the stand on one leg test) and the Horizontal Gaze and Nystagmus test of HGN (follow the officer’s pen/finger test). These tests are considered “standardized” because they have specific instructions that must be given properly and specific “clues” for the officer to observe. The National Highway Transportation Safety Administration (NHTSA) has determined that if given properly (which they rarely are), and the person fails (which they normally do), the SFST’s, statistically prove that the person’s blood alcohol concentration (BAC) is at or above a .08.
There are also various non-standardized field sobriety tests (FST’s) such as the finger-to-nose test, the sway test or the alphabet tests. These tests are “non-standardized” because everything is subjective and up to that specific officer. There are no specific instructions for the officers to give, there are no specific clues for the officer to look for and there are no statistics correlating the “failed tests” to the possibility that the person’s BAC is at or above .08. Rather, the officer can give whatever instructions he wishes, and he can decide what is a clue and what is a “failed” test.
All Field Sobriety Tests, whether standardized or non-standardized, should be refused. You cannot be punished for simply refusing to take the tests.
The officer will then ask you to blow in to the portable breath test (PBT). This is a little device that the office holds with a straw at the end of it for you to blow in to. The results can be used to obtain probable cause to arrest your for DWI – however cannot be entered as evidence of your BAC. This test should also be politely, verbally and coherently refused. Again there is no punishment for refusing the PBT yet it can make a huge difference in the outcome of your case. At this point, even if you do everything as mentioned above, the officer will most likely bring you “downtown” where you will face the EC/IR II or Intoxilyzer.
To Blow or Not to to Blow
The EC/IR II allegedly takes your breath sample and from that calculates your BAC. There are many flaws with the machine and the “science” behind it; however, the State of North Carolina has determined that the results from the EC/IR II are sufficient proof of your BAC.
The decision to blow in to this machine is one only you can make. If you blow, you may be giving the police the most damning piece of evidence against you. However, if you decide not to blow and refuse the test, you will lose your license for a period of one (1) year and you will not be able to obtain a limited driving privilege for a period of six (6) months. That means if you refuse the test then you will not be able to drive, at all, for at least 6 months. Additionally, if you refuse to blow, the police can go to a judge or magistrate and obtain a search warrant giving them the ability to stick a needle in your arm and take your blood. From that they will still be able to determine you BAC. Therefore, even if you choose to refuse, the State may still obtain the evidence they need to convict you and you still lose all driving privileges for a period of 6 months.
There are many issues to consider when deciding to blow or not to blow. Just to name a few, how long has it been since your last drink, what were you drinking, how many drinks did you have, did you eat, and have you been convicted of DWI within the past 7 years?
If you decide to blow, there are issues with the procedure and the machine that can be attacked. For example, was it administered by a properly trained chemical analyst? Was the machine properly maintained and calibrated? Were the tests given within proper time frame? Were the results of the two tests more than .02 apart? Were you informed of your right to have a witness present? Did the police wait the required thirty (30) minutes for your witness to arrive?
Can I get a Witness
You have the right to a witness come and view the test and the test procedures. It is imperative that you exercise your right to have a witness present. Call friends, family, and/or coworkers to try and get someone to come to the station to watch the test. The police have to wait 30 minutes for your witness to arrive. If they are not there within the 30 minute time frame, the police can move forward with the test. If you find out, however, that your witness was present at the station within the 30 minute time frame and was not allowed back in the room, then that may be grounds to have the EC/IR II results suppressed and your case dismissed.
After the breath test, you will be taken before a magistrate who will then determine if you should be released on a written promise to appear, be given conditions of release such as posting a bond or forced to wait in jail for a period of time before being released. In any event, you have the right to build a defense. You have the right to have people come and view you to be able to testify on your behalf regarding your sobriety. It is imperative, especially if you are not immediately released from jail, to contact people to come see you. If you are not given the ability to have witnesses come and watch you, then you may have grounds for a dismissal.
Once you are released, contact a lawyer at The Law Corner as soon as possible so we can sit down with you, examine your case, and begin building your defense as soon as possible. This is not an exhaustive list of your rights or of our ability to attack the state’s case, it is more of a guide and overview of your rights and options before you ever consider driving after drinking or find yourself charged with a DWI. Please remember to call an experienced attorney at The Law Corner, or another firm for that matter, to make sure your rights are preserved and you have the best possible chance for a dismissal or not guilty verdict.
I want to convey my sincere thanks and gratitude to you, Brian and the rest of your staff for doing a great job on my case and getting what is truly a favorable outcome for me. While involved in my case, you performed exceptionally and demonstrated a great deal of professionalism. I appreciate the hard work you all have put into my case and would recommend you to anyone. Thank you again.