Driving While Impaired (DWI)
I routinely assist individuals charged with Driving While Impaired (DWI) in Charlotte, (Mecklenburg County) North Carolina. As you will see below, a DWI case is extremely complicated. There are a lot of moving parts and issues we must navigate in your case. It is impossible for me to clearly address all the issues of your DWI case or adequately explain a DWI case here, but I hope this summary will provide some helpful background. I do encourage you to immediately call for a free consultation. (a) There is no charge; you have nothing to lose; (b) There are several very important, short time limits in your case. We need to discuss those, so you can make an informed decision.
N.C.G.S. 20-138.1 is the applicable statute for a N.C. DWI case. In North Carolina, it is unlawful for any person to drive a vehicle upon a highway, street, or any public vehicular area within the state while impaired. Alcohol, prescription medication, and illegal drugs are all impairing substances under the law. You can find additional information on my website regarding the increasing issues I'm seeing in DWI cases that involve substances other than alcohol. Regardless, the standard of proof in a N.C. DWI case is "impairment", which the State can establish two ways.
It is illegal in North Carolina for you to drive a car while your blood alcohol concentration (BAC) is .08 percent or higher. Your BAC is affected by various factors: the number of alcoholic drinks consumed, the concentration of those drinks, food consumption, height / weight, drinking habits, the interval between the first drink and the last drink, etc. The State typically tries to utilize the BAC result for a variety of reasons. As your defense attorney, I analyze multiple factors to determine whether we can keep the State from introducing the BAC result. The law requires the officer to administer the BAC test in a precise manner. The officer needs to complete your paperwork in the proper manner. The law also mandates specific procedures regarding how a BAC result is introduced in court.
The State can still prosecute you for a DWI under North Carolina law even if your BAC is lower than .08. As previously noted, the State's burden of proof is "impairment". The .08 BAC standard is simply one way the State may establish impairment. The Mecklenburg County District Attorney may proceed under what is commonly referred to as the "appreciable impairment" prong of the statute. If your BAC is less than .08 (or the BAC is excluded), the D.A. will often seek to introduce other evidence of impairment such as: evidence of poor driving; accident information; your statements; witness observations; evidence regarding your field sobriety testing, etc. While this route is more challenging for the D.A., you absolutely can be convicted for DWI in such a manner and it happens often.
I make extra effort to ensure my clients understand exactly what your case is about, and we take the time to clarify any of your questions. I like to explain your DWI case as having 3 main phases for simplicity:
Reasonable Suspicion For The Stop:
N.C. Courts define reasonable suspicion as a ‘reasonable, articulable suspicion that criminal activity is afoot'. Simply stated, this is a pretty low standard for the District Attorney to establish. Common examples of things I see that contribute to reasonable suspicion are various traffic violations, auto accidents, anonymous tips, invalid registrations, seatbelt violations, information from Police checkpoints, etc. However, there are cases where the State has a proof issue on this critical element. The facts of your case are critical. This is a reason I encourage you to contact me as soon as possible, when the incident is fresh in your memory. I carefully interview my clients, asking critical questions that I've learned over many years we may need many months down the road.
The DWI Investigation / Arrest
The officer's DWI investigation in your case really begins before he/she even approaches your car. When the officer approaches your car, he/she is addressing whatever reason they stopped your car. However, he/she is likely also looking for clues of impairment as well. Officers look for alcohol in the car. They observe your demeanor, responses to questions, dexterity, eyes, odor of alcohol, etc.
If warranted, the officer will often ask you to perform Standardized Field Sobriety Tests (SFSTs). While some officers will ask you to complete a few additional tests, there are only 3 standardized tests. The first test is used to assess nystagmus, explained below. The other two tests are divided attention tests, also used to assess impairment. Arguments can be made for / against each test. However, these 3 SFST's are legitimate evidence in your DWI case pursuant to N.C. law.
Horizontal Gaze Nystagmus (HGN) Test:
- The officer will have you follow the tip of pen up & down / side to side with your eyes while holding your head still. The officer looks for the angle at which your pupils start to exhibit "nystagmus" (an involuntary jerking of the eye). The early onset of nystagmus (at or before a 45-degree angle) is a clue indicating a high blood alcohol concentration.
- While this test is supported by documentation from the National Highway Traffic Safety Administration (NHSTA), I have real issues with the test. My main two concerns are (1) the administration of the test is very inconsistent among officers, and (2) the documentation of this test in an objective way that allows the defense to observe and question such is very unreliable. I will be happy to further explain the HGN test and it's application to your case.
Walk & Turn Test:
- The officer will request you stand heel to toe with your arms beside your side as you listen to the instructions. You will then walk down a real or imaginary line heel to toe 9 steps; pivot in an instructed manner; and return 9 steps in the same manner counting aloud.
- The officer is looking for clues such as: inability to maintain the starting position, loss of balance, use of your arms, incorrect number of steps, incorrect turn, failure to count aloud, etc.
One Leg Stand Test:
- The officer will request you raise one leg 6 inches from the ground and hold your foot parallel to the ground. You will then count aloud to 30 (one-thousand-one, etc.) while looking at your raised foot.
- The officer is looking for similar clues such as: loss of balance, use of your arms, failure to count aloud, counting to the wrong number, etc.
Arrest Processing / Release
The arrest processing and release for a DWI case is different than other charges. The officer completes paperwork specific to your DWI charge. The officer typically requests you submit to a breath test / chemical analysis. This is the intoxilizer / BAC reading previously noted. Just a few notes regarding the breath test:
- Again, you have the right to refuse this test. The officer will typically try to compel you to take it by reminding you that refusing to do so results in an automatic 1 year suspension of your license by the DMV.
- The officer is required to wait 20 minutes (the observation period) after reading your rights regarding the chemical analysis before proceeding.
- You are allowed witnesses to observe the DWI breath test. The officer must wait 30 minutes for any witness you contact to arrive. However, the officer can (and will) proceed if your witness has not arrived within 30 minutes.
- The officer must obtain two sequential breath samples within .02 for a valid test. You get the benefit of the lower reading. (For example: if you blow a .10 & .08, you're reading is .08.)
- If you refuse after the first reading, the D.A. can still use the first breath sample against you in court. You will also suffer the DMV penalty for the refusal. Therefore, you should refuse any breath sample if you are going to refuse.
After the breath test, you will go through several steps in the Mecklenburg Jail and eventually see the Magistrate. The Magistrate will determine the conditions of your release. Once you meet any conditions of your release, the Sheriff will release you from the jail. If you contest the validity of the breath test and / or contend you were not impaired, I recommend you immediately obtain a blood test upon your release from the jail. You should keep any paperwork associated with your case. You should make notes about when you were released, any witnesses, and key events or times. Details matter in your case.
The Procedure of a DWI Case:
How do we practically go forward with your case? In Charlotte, your first court date is going to occur 99% of the time in Courtroom 1130. The easiest way to understand Courtroom 1130 is it primarily operates as a funnel to send cases to the appropriate trial court rooms located on the 4th floor of the Mecklenburg County Courthouse. Some cases are disposed in courtroom 1130, but your DWI case will very likely not be one of those.
As your attorney, I will make the initial court appearances for you. You will simply sign a waiver of appearance. Simply put, I don't want you to miss work, school, etc. if there is no practical reason for you to attend court. As soon as you hire me as your lawyer, I will begin subpoenaing documentation from the Police & Sheriff. I will request any applicable videos and paperwork related to your arrest / processing. I will also make a complete copy of your court file that has additional documentation you will not possess.
An additional reason we want to speak as soon as practical is to assess your N.C. driving privileges. This aspect can be a bit confusing, and I'm happy to explain further in our consultation. Your paperwork will indicate your N.C. driving privileges are suspended for 30 days. However, there are a few different ways you may be able to resume driving driving pending the disposition of your DWI case.
We may be able to challenge the civil revocation that accompanies your DWI charge.
- There is a 10-day deadline for this option.
- Note: Many firms charge a significant extra fee for this legal procedure, and they fail to explain such well. I do not charge for assisting my clients with these civil revocation and pretrial limited privilege matters.
You can potentially pursue a pretrial limited driving privilege.
- This limited privilege requires proof of an alcohol assessment, proof of insurance, and a $100 filing fee.
- The limited privilege basically applies from day 11 through 30 of the 30-day suspension noted above. You can resume driving per your license as of day 30, assuming you have paid the $100 civil revocation fee. (I execute the payment of this fee for my clients as it is confusing to ensure it is done correctly.)
You can wait 30 days, pay the $100 civil revocation fee, and resume driving per your license pending the disposition of your case.
Effects of a DWI Conviction:
This is important: why do I provide information about a possible conviction? Some would argue it sets the wrong tone. However, 99.9% of my clients ask me about the "worst case scenario". I bet it's crossed your mind at some point too. Problems don't get solved by ignoring them! We're going to address your problem head-on. We're going to discuss the various aspects, the pros / cons, etc. We're going to develop the proper strategy, and we're going to get a good result. You can still play offense while understanding the stakes. Do you think the military attacks a target without knowing their exposure?
One of the initial things I will discuss with you regarding your case is what I term your "exposure". What is your worst case scenario? You may / may not have ever been arrested. If not, it's a very unpleasant experience to say the least. I understand you may well be worried about the effect your case will have on your employment and your family. I realize you have bills to pay.
Another reason I want to talk with you is so I can obtain information to analyze 3 critical factors in your case that affect your exposure. I want to provide you a reasonable expectation and an idea of how we are going to proceed. N.C.G.S. 20-179 addresses these 3 factors the court considers when providing a ruling in a DWI case:
Grossly Aggravating Factors
- A prior DWI conviction within 7 years of your current DWI offense date
- A DWI conviction after your current DWI offense date but prior to / contemporaneous with the current DWI conviction;
- A prior DWI conviction you appealed is still awaiting sentencing in District Court;
- Your license was revoked at the time of your DWI (for DWI);
- Serious injury to another person due to the DWI;
- You had in the car: (a) person under age 18; (b) person with mental development under age 18; or (c) person with a physical disability prevention unaided exit at the time of your DWI.
- Gross impairment (BAC of .15 or more);
- Especially reckless / dangerous driving;
- Negligent driving leading to a reportable accident;
- Your license was revoked (not for DWI);
- Two or more motor vehicle offenses (aside from DWI) for which at least 3 points are assigned or which subject your license to revocation within 5 years of your DWI offense;
- A prior DWI conviction beyond 7 years of your current DWI offense date;
- Conviction of speeding with attempting / fleeing to elude;
- Conviction of speeding 30 miles over the limit;
- Passing a stopped school bus;
- Any other factor that aggravates the seriousness of the DWI.
- Slight impairment: (BAC of .09 or less);
- Slight impairment (alcohol alone) with no chemical analysis available;
- Safe & lawful driving at the time of offense;
- Safe driving record: no offense for which at lease 4 points are assigned or which subject your license to revocation within 5 years of your DWI offense;
- Impairment was caused by a lawfully prescribed drug for a existing medical condition, and the amount taken was within the prescribed dosage;
- Voluntary submission to a mental health facility for an assessment, and if recommended, participation in recommended treatment;
- Completion of an assessment, compliance with recommendations, and simultaneous 60 days abstinence from alcohol consumption verified by continuous alcohol monitoring (CAM) system approved by the DOC;
- Any other factor that mitigates the seriousness of the offense.
In District Court, the judge determines these factors. If your case is appealed to Superior Court, a jury determines these factors. In many cases, the parties are able to agree to the existence of the appropriate factors. As I review your facts and analyze videos and documents I subpoena from the Police, we can have additional discussions about your case to further modify our approach where necessary. The importance of considering these factors upfront is it allows us to make these strategic adjustments when they matter. I take a proactive approach with your case. Unfortunately, too many attorneys are not actively involved in your case. They don't really know what is going on with you until right before your court date. Maybe the hourly employee did a good job; maybe she messed your case up. Who do you feel more comfortable with?
Special Considerations: Out-Of-State Drivers With A N.C. DWI Charge
Given the location of Charlotte to the border or N.C. & S.C. (and the fact that I'm licensed to practice law in both states), I have represented a number of individuals charged with DWI in Charlotte who were licensed in another state. Whether you are licensed in South Carolina or another state, the fact you are licensed in a state other than North Carolina presents unique issues that must be addressed properly.
This is important: Many local DWI lawyers will take your case, give you basic guidance regarding the N.C. aspect of your case, but absolutely defer anything / everything remotely connected to the state where you are licensed by simply telling you to speak to a DWI lawyer in that state. Here is the problem: I can't practice law where I'm not licensed. However, in your DWI case a lot of issues are connected between the two states. Your N.C. lawyer is going to have to put in some real work to help you out to get a good result. If your N.C. lawyer is just going to pass the buck, you need a different lawyer.
Let me use South Carolina drivers as an example. I'm licensed in S.C., but I don't actively handle S.C. DUI (same practical thing as N.C. DWI) cases. These cases are very complex; you want your lawyer to be a guy who is competitive and serious about what he is doing. So, my approach is simple. I put a ton of work in previously to gain a solid understanding of the ramifications of a N.C. DWI on a S.C. license. I carefully established a network that included a provider to send my clients to who needed an assessment. I secured a provider that understands what we need for a N.C. case, and does a good job getting that documentation to the N.C. DMV (necessary for you to get your license back). As a S.C. attorney, I also have a good network of friends across the border to work with on all the crazy issues that arise in these DWI cases. Here is the truth: as an attorney, I have to spend a lot more time helping a client with an out of state license because the DMV issues are a complete pain to handle correctly. The challenge is that DMVs are slow and unpredictable, and now we're dealing with two of them. However, I spend that time, and we get it right.