Without a doubt, if you have been charged with Driving While Impaired, you need an attorney to represent you. Being charged with DWI can be traumatic, but does not always have to lead to serious consequences. As an attorney with experience trying hundreds of DWI cases both as a prosecutor and a defense attorney, I can give you guidance on how to navigate the potential minefield of a DWI case. To answer some common concerns about these cases, let me break down the case into stages:
At the time when you are charged:
Whether you are pulled over by the police, you have gotten into an accident and the cops have arrived, or you have been stopped at a DWI checkpoint, the police have a fairly standard procedure they will use to try to make the case against you for operating a vehicle while impaired. The law says that the court can consider evidence of your impairment which is obtained at a “relevant time after driving”, which means that most of the evidence in your case, both for and against you, is going to be obtained either on the roadside or shortly after you have been taken to the station.
On the roadside, the police may ask you to perform various standardized field sobriety tests, or “psychophysical tests”. These often include:
- Having you walk a line heel-to-toe, turn, and walk the same way back
- Having you stand on one foot while counting to 30 seconds
- Having you touch your fingertip to the tip of your nose with your eyes closed
- Asking you to say the alphabet in a certain way, like starting at the letter “M”
- Following a light, pen, or other stimulus with your eyes without moving your head (the “HGN” test)
The important thing to remember is that these are not “pass/fail” tests, but rather they are tools that the police use to look for signs that you are impaired. The bad news is that, if you do these tests, you may be creating evidence that can be used against you. The good news is that I can often use the results of those same tests to your advantage.
The police will often ask you to blow into a handheld breath tester on the roadside. This test is not admissible in court, but is another tool that they use to gather evidence against you.
Finally, the police may ask you questions on the roadside about how much you may have had to drink, where you were going, and what you have been doing. If you have been in a wreck, they may ask you what happened.
You should not answer these questions! In fact, you are often better off not performing any of these tests, especially if you have consumed a fair amount of alcohol. What you should never do, however, is argue with the police. If you don’t want to do a test, decline politely.
Be respectful at all times. Do not use profanity around the police. Always follow their instructions, but remember that you can still decline to answer questions or take their tests if you want. The court looks at defendants who are “polite and cooperative” favorably, but failing to be so will doom most cases!
A little-known provision in the law allows you to request a “
pre-arrest test”. This requires the police to stop all roadside procedures and immediately transport you to the police station for breath testing. Understand that if the cops think you have been drinking, you are likely to end up taking the test anyway, but asking for the “pre-arrest test” will deprive the cops of the chance to gather evidence against you, and the fact that you have requested this test at all is evidence that you are thinking clearly.
At the time of the breath test: In North Carolina, the only breath testing device permitted to determine your Blood Alcohol Content ("BAC") is a machine called the "Intoximeter EC/IR". When you reach the police station, they are going to ask you to give a breath sample on this device. The common question is,
"Should I blow?"
There is no quick answer to this question, as it depends very much on your situation. There really is no right or wrong answer to the question, but there are trade-offs. Taking the breath test may allow the police to collect very strong evidence against you, that may make your conviction of DWI very likely, but taking the test may also make it easier for your lawyer to get you back driving again. Refusing the test will cost you the privilege to drive for several months, but the police will also not be able to determine your blood alcohol content.
- If you take the test and blow .08 or higher: it will be difficult to convince the court that you were not impaired by alcohol, even if you feel that you were sober. Blowing over the limit does not mean that you are automatically guilty. However, the higher your BAC climbs, the harder your case becomes. As a practical matter, if your BAC is reported to be higher than .09, unless there is some other legal defense that can be raised in your case, the court will find you guilty. If your BAC is .09 or lower, the court will consider that along with other evidence in your case. But on the positive side, in most cases you will be eligible to drive until your case goes to trial and you will be eligible for a work license afterwards.
- If you refuse to take the test: you will have a better chance of beating the DWI charge in court, but you will lose your driving privilege for one year, even if you are found not guilty! Moreover, you will not be eligible for any kind of driving privilege, even one for work, for six months after you receive your ticket.
Keep in mind that the law imposes additional penalties which can make it much more difficult to get your license back if your BAC reaches .15 or above. For this reason, if you think you have had enough to drink to be more than double the legal limit, it is wise to refuse the test.*
For the test to be valid, you will have to give at least two samples. But once you have given one breath sample, you need to keep going.
The worst possible thing to do is to blow one time, then refuse to give another sample. Many people see the result on the first test, then don't want to give another sample. Don't do this! The law allows the result of the first sample to be used against you, and then still considers you to have refused the test, costing you your license!
After the test is done, the police often will ask you to answer a series of questions listed on their report form. Again, as before, you should not answer these questions. The cops should at this point have given you your Miranda warning ("You have the right to remain silent…"), and you should take them up on their offer to decline to answer questions.
* How do you know what your result will be? The best way to estimate is to figure that the average 150 lb person will gain about .02 BAC for every can of beer, glass of wine, or shot of liquor.
The day after: When all is said and done, you need to talk to a lawyer, and time can be important. If the police have said that you refused the breath test and you feel that you did not refuse, you only have a window of 10 days to challenge this with the DMV and avoid the suspension of your license. After 10 days have passed, your chance to challenge the refusal is gone, so contact a lawyer quickly since time is of the essence.
In any event, we will want to meet with you to discuss your case. North Carolina law allows the State to convict you of DWI by proving a short list of “elements”:
- That you were operating a motor vehicle upon a street or highway (or public vehicular area) within the county where you were charged;
- That at the time you were driving, you either:
- had a blood alcohol content of .08 or higher, or
- had your mental or physical faculties noticeably affected by an impairing substance such as alcohol.
We will need you to be able to describe for me in some detail what happened before, during, and after your arrest to determine whether or not the State can prove their case, and what our chances are of winning at trial. Understand that just because you blew a .08 or above, you are not automatically guilty!
Don’t just go to court and plead guilty, even if you think that you are. This is a serious matter, and you should let a lawyer examine your case before you simply throw away your driving privilege.
Even if it looks like you will be convicted, we can help you reduce your punishment significantly. We can also tell you exactly what to expect in court, estimate your court costs and fines should you be convicted, explain to you the consequences for your driving privilege and help you go through the process to get it restored. The fact is that the law in this area is fairly complex, so if you find yourself facing a DWI charge, we encourage you to call us so we can help you make sense of the situation.