Mecklenburg County DWI: What to Do if Arrested for Driving While Impaired in Charlotte North Carolina. What to Expect. What You Need to Know.

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1 Mecklenburg County DWI: What to Do if Arrested for Driving While Impaired in Charlotte North Carolina What to Expect. What You Need to Know. Robert J. Reeves Law Offices of Robert J. Reeves P.C. NC DWI ebook Series Copyright 2015

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3 Driving While Impaired (DWI) Individuals arrested for impaired driving in North Carolina are charged with Driving While Intoxicated (DWI). Most of us refer to drunk driving as Driving Under the Influence (DUI). The only real difference is the acronym. Impaired driving, drunk driving, DUI, DWI, buzzed driving and any other variation all describe the same illegal, dangerous behavior. In North Carolina, you can be prosecuted for driving while under the effects of any impairing substance, including alcohol (beer, wine, liquor) or drugs (prescription, illegal, over the counter medications, even natural homeopathic remedies), alone or in combination. Basically, if you consume or ingest anything that renders you physically and/or mentally debilitated and unsafe to drive, you can be arrested for impaired driving. How a DWI Begins No one ever expects to be arrested for DWI. Our clients are good, hard working individuals who usually have no prior criminal issues. Most have not even had a speeding ticket. They consider themselves to be responsible and would never knowingly drive if they felt unsafe or posed a danger to others. While each case is factually different, we do encounter some shared themes in DWI cases. The most common 2

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5 scenario involves dinner and a few drinks while out with friends. Others may go watch a game downtown and have a few beers. Charlotte now boasts local sports teams for football, baseball, basketball, and even hockey. We also have a vibrant nightclub scene and a revitalized downtown area with almost every type of restaurant and bar. There are even movie theaters where you can order food and drinks. On the way home, our clients come across checkpoints or get pulled over for any number of reasons. Sometimes, it is for suspicion of impaired driving, but not always. Sometimes, they have expired tags or a brake light is out. In other situations, the officer will observe driving from being tired or just inattentive. Regardless of the initial reason for the stop, everything changes once the officer smells alcohol. And once the officer begins a DWI investigation, you can expect to be arrested, handcuffed, and then spend the night in jail. If you attempt to perform field sobriety tests, you will fail and be arrested. These tests are difficult to perform under the best of conditions. If you decline to participate, even politely, you will definitely end up in handcuffs. You get the idea here. Another shared theme after being charged with DWI is everyone is extremely anxious and understandably has lots of questions. What is going to happen next? Am I going to lose my license and my job? What is the worst case scenario? What is the legal process? Quite 3

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7 understandably, they need answers and want information as quickly as possible. This is the reason for this ebook. After reading it, you will have a better understanding of what is involved and what you are facing. Hopefully, you will also see why you need an experienced, professional DWI attorney. Whether you hire our firm or some other DUI lawyer, I strongly encourage you to carefully consider your options and retain who you determine is the best legal counsel for you and your family. Arrest is Not Conviction Immediately after being released from jail, almost everyone feels ashamed and despondent. They often feel all is lost and just want this ordeal to end. Here is the good news. Being charged with DWI is NOT the same as being convicted. And while North Carolina DWI laws are heavily weighted in favor of the State, there are many stops along the road to conviction. The government bears the entire burden of proof. They have to prove everything. You have to prove nothing. There is a required process that must be followed by the police. And to prevail, the State of North Carolina must prove you guilty beyond a reasonable doubt, the highest legal standard. Why is the State s burden so great? Because a DWI is a criminal charge with potentially permanent consequences. As with any criminal charge, the State makes all the laws and sets 4

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9 all the rules. It is the government with all of its resources against an individual citizen. North Carolina DWI law is a very complex. However, an experienced DUI attorney can strategically review the State s case and determine what defenses may be available to challenge different aspects of the DWI investigation and arrest procedure. Every case is unique, and little details can make a big difference in outcome. But given the permanent consequences of a DUI conviction, it is clearly worth hiring a professional DWI lawyer to find out what options may be available to you. Why You Should Fight a DWI Charge You should never be in a hurry to plead guilty to a DWI. There is simply no reason to ever do so. By taking the time to thoroughly investigate all of the facts and evidence in your case, you may find there are viable defenses that may make this whole thing go away. Even if you decide later that a plea is your only real option, you will have still benefitted by keeping your job while the case is pending, delayed the start of higher insurance rates, and have had time to save money for anticipated court costs and fines. And, your DWI lawyer can help you prepare your case to lessen any ultimate sentence. If you hire professional counsel, you can expect to have between nine months to a year before you will have to face any consequences. 5

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11 There are a number of public safety DUI awareness billboards on the interstate highways these days. One in particular shows an individual submitting to breath testing and reads you just blew $10,000. That figure is actually fairly accurate when you consider all of the various costs, fines, and higher auto liability insurance rates. Even years later, your prior DWI conviction will still be there. In the end, the least expensive part of a DUI arrest is the attorney s fee. The investment is worth the cost. What You Should Expect From a DWI Attorney The Initial Inquiry Whether you reach out to an attorney by contact form, , or phone call, you should expect a prompt response. In this era of smartphones, there really is no excuse for delay in getting back to clients. Despite these advances in technology, failure to return phone calls remains the number one complaint from clients. We do things differently at our firm. We value our clients calls and s and promise to respond to all messages the same day. And if you call us in the evening or on weekends, you are going to hear back from us. We know and appreciate what you are going through and pledge to be there to help. Getting answers will allow you to get back to your life while we focus on your case. 6

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13 Different law firms have different procedures for handling client inquiries. Some firms rely heavily on staff while other lawyers offer more direct access. For most matters ( when is my next court date? ), a paralegal is just fine. But for more pressing questions and concerns, clients want to talk with their lawyer. Sometimes, a paralegal is just not enough. For some situations, clients need just a few minutes on the phone with their attorney to help reduce their anxiety and get a better night s sleep. DUI firms with large numbers of cases in multiple counties may not be in a position to get back to you quickly. And because their lawyers are in so many courts during the day, they may not be able to speak with you directly until later in the evening. It is the same with law firms with too little staff or some firms that have no staff at all. But let s be clear. As a client, you should expect your lawyer to be accessible and return your message promptly. If they cannot make time for your concerns, you should consider seeking other counsel. The Attorney Interview Once charged with DWI, you become a client seeking legal services. Although it may feel otherwise, it is actually the DUI attorney who is being interviewed. Not you. Once you are able to speak with a lawyer on the phone or meet with them in their office, you will be 7

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15 able to evaluate their ability, experience, and style. It is important to determine if you can work with this person. This is especially important in DUI cases as you will be together for many months and attend multiple court appearances as your case progresses through the court system. When making a decision about whom to hire, you must first be convinced that your lawyer actually knows and understands North Carolina DWI law. Secondly, you should inquire how often or what percentage of their practice is focused on defending DUI cases. What sort of credentials do they have? What special courses or certifications have they completed? How many years have they practiced law? Are they willing to go to trial if that is in your best interest? Do they listen to your concerns and attempt to fully answer your questions. Everyone knows a good lawyer and will make suggestions, sometimes even unsolicited. This is a great place to start your search. However, you should go further and do your own research. You need to carefully consider which DWI attorney gives you confidence but also puts you at ease before making a final decision. When Can I Legally Drive Again? After deciding which DWI lawyer to retain, the very first issue is always getting back on the road again. Whether it is work, school, or taking care of children, we are a mobile society and have to be able to drive. 8

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17 When arrested for DUI, your driving privileges are automatically suspended for thirty (30) days whether you voluntarily submit to breath testing or not. If you refuse testing or give an insufficient sample, your license is subject to suspension for one (1) year. After the initial thirty day period, you can pay a $100 civil restoration fee to the State of North Carolina and have your original license returned to you. So do you have to wait the entire period before you can legally drive again? The answer is no, under most circumstances. Limited Driving Privilege (LDP) During the first ten (10) days of the thirty (30) day suspension, there is nothing you can do to legally drive other than to prepare to submit a Limited Driving Privilege on the eleventh (11 th ) day. A s tandard LDP allows you to drive to and from work or school Monday through Friday, 6:00 am to 8:00 pm. If you need to drive outside of these hours, you can petition for a non-standard LDP but will need a statement from your employer or school. If you drive outside of the LDP, you can be charged with driving while licensed revoked and will have a serious impact on your pending DWI case. To petition for a LDP, you will need to take an alcohol assessment that costs $100 and have your automobile liability insurance company provide a DL-123 form. 9

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19 Our firm can provide you a list of assessment centers in various parts of Charlotte. You only have to get the assessment for now. You do not have to complete any recommended treatment. Then, we will prepare the required Affidavit that reaffirms you have no other pending DUI charges anywhere and that your license was otherwise valid at the time of your arrest. After ten (10) days from your arrest, we will appear on your behalf and present your LDP petition to a District Court judge. If granted, you will pay an additional $100 to the State of North Carolina for your LDP. Once signed by the judge and filed with the court, these documents will become your license for the next twenty (20) days. After that license expires, you should have your original license. 10

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21 Court Dates and Hearings Here in Mecklenburg County where we focus our DWI practice, your first court date will be scheduled in Courtroom This is a large courtroom located on the first floor of the Mecklenburg County Court House. This court handles many different traffic charges, and there is usually a very long line of people waiting each day. If you hire a DWI lawyer, you can sign a Waiver of Appearance form that will allow your lawyer to appear on your behalf. You will NOT have to face Charlotte traffic, find a parking garage, or wait in those long lines. Your attorney will go there for you. On the first court date, your lawyer will request the shuck which is an envelope with a big window. It 11

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23 contains the arrest documents. In most cases, you will have already provided many of these same materials during the initial meeting with your lawyer. One record usually not available initially is the officer s notes and arrest record. After reviewing the papers, your lawyer will request a new court date. You can usually continue a case one time in Courtroom 1130 that allows you to avoid having to come to court one more time. However, once your case is assigned to the fourth floor (District Court level), you will have to start coming to court on the date and time scheduled. We will notify you by sending a letter or with your new court date, time, and courtroom (January 1, 2015; 9:00 a.m.; Courtroom 4130). We also indicate whether you do or do not have to appear for clarity. Arresting Officer Review Once your case is transferred from Courtroom 1130 to the District Court, your lawyer will have a first opportunity to meet with the arresting officer and discuss their notes and recollection of your arrest. This interview is an important aspect of your DWI case as it allows for a review of the basis for the police stop and arrest procedures used. The officer may remember details not reflected in the notes and can share their observations and how they concluded you were impaired. During this meeting, we will also confirm whether there is any video evidence available for 12

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25 further evaluation on proper field sobriety testing procedure as well as how you appear on video. In many cases, how you appear as recorded can make the difference in being convicted or acquitted. Review of Evidence and Recommendations After approximately six (6) months and several court appearances, your DUI lawyer should now have all of the State s evidence, including any video, in their possession. Then, following a comprehensive review of all materials, you and your DWI attorney can then sit down and have a serious discussion about your case and options. Everyone wants to know what are my chances and best options. Now that we have all of the evidence, we can talk about what we like and don t like about your case. We will present our findings, answer your questions, and then make our recommendations with the pros and cons of each potential course of action. You then decide what is best for you and how you want to proceed. As we stress in our initial consultation, you will make all decisions about your case. We do not pressure you either way. After you have been given full information, you are then in a position to make the best choice for your particular situation. At that point, we will have kept our promise and done the job you hired us to do. 13

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27 Trials If after consultation you decide to proceed to trial, your lawyer will notify the District Attorney and make a note in the file. Trials in District Court are heard before a judge only. There is no jury trial at this level. The State will present its case first as they have the entire burden of proof. They will call the arresting officer to testify and may supplement that testimony with any video evidence available. At the end of their case, your attorney may make a motion asking the judge to find in your favor. If this motion is denied, your lawyer will proceed with your defense. Many clients fear being called to the stand and do not wish to testify. The good news is that it is extremely rare for a client to testify. Instead, other witnesses may be called, including expert witnesses. But usually, the defense will rest and proceed to make closing arguments after the State presents their final case. If you are found guilty by the judge, you will be sentenced after a review of the factors and assessed a punishment level. If you elect to proceed to Superior Court, your lawyer will indicate your notice of intent to appeal on the record. Your second trial in Superior Court will be presented in front of a jury and is de novo which is you get a new trial. District Court trials usually last about an hour or longer if there is video evidence presented. Superior Court trials usually take between one to two 14

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29 days. Jury selection alone can sometimes take several hours to complete. Pleas If you decide to plead guilty, there are a number of potential advantages to consider. First, you and your lawyer will have time to prepare for the sentencing hearing in advance. We usually recommend our clients to get a current alcohol assessment and to complete all recommended treatment. It is often easier to finish this required treatment on your own schedule. In addition, it demonstrates to the court that you are serious about the DWI charge and have learned from the experience. Secondly, by knowing you are pleading, we can prepare a post-trial limited driving privilege (LDP) for signature by the judge immediately following the plea. This way, you can drive yourself home and not miss anytime from work or school during the one-year suspension. A final potential benefit of a plea is that the District Attorney will usually dismiss any other accompanying charges (speeding, expired registration, etc.) in exchange for the plea. These are just some of the factors that will be presented to you during the evidence review and recommendation meeting. After full consultation with your attorney, you can then decide what is best for you. 15

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31 Penalties for First Offense DWI North Carolina DWI law has a sentencing structure that requires a review of factors (Grossly Aggravating, Aggravating, and Mitigating) and written findings by the judge. Depending on that review, a defendant who pleads guilty or is convicted will be assessed a specific punishment level. For the overwhelming majority of those charged with a first offense DWI with no accompanying serious injury or death will be at a Level 4 or Level 5. At Level 5 (the lowest punishment level), you will receive a jail sentence of between 24 hours up to 60 days, but it will be suspended (no jail time unless you violate probation). As part of your probation, you will have to obtain a substance abuse assessment and complete all recommended treatment (usually 16 hours). You will have to pay court costs and a fine of up to $ You will have to complete 24 hours of community service, usually within 30 days, and your driving privileges will be suspended for 1 year. However, you will be eligible for a limited driving privilege (LDP) unless you refused breath testing or had a BAC level of 0.15% or greater. Most lawyers will have a proposed LDP for the judge to sign right after the plea. At Level 4, the terms are the same except for a higher fine of up to $ and required 48 hours of community service, usually within 60 days. For more serious cases or those with multiple DWI charges, the penalties are significantly greater as you would expect. 16

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33 We would encourage you to immediately schedule a consultation in the office if you are facing a felony DWI or have prior DUI convictions within the past seven (7) years. Ignition Interlock Device This technology is required for those with a BAC level of 0.15% or greater. There is a fee for the installation as well as a monthly monitoring charge. There is also a 45 day delay in eligibility for a limited driving privilege. Any attempts to defeat or cheat the IID will violate not only the terms of the LDP but probation as well. It is certainly inconvenient and adds additional costs to even a first time DWI. Thanks to increased competition from several vendors, the installation and monthly service costs have decreased significantly. However, the technology is still not without error, and individuals continue to report problems with false readings and being stranded. 17

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35 About the Author Robert J. Reeves is a seasoned litigator with over 25 years trial experience in both civil and criminal courts and in licensed in both North Carolina and South Carolina. He is a member of the National Trial Lawyers Top 100, the National College for DUI Defense, the National Advocacy for DUI Defense, and the National Academy of Criminal Defense Attorneys. He has been licensed to practice law in North Carolina since

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37 Mr. Reeves has undergone the same training as police and earned certificates from the National Highway Traffic Safety Administration (NHTSA) for both DWI Detection and Standardized Field Sobriety Testing as well as the Advanced Roadside Impaired Driving Enforcement (ARIDE) courses. In addition to the above credentials, Mr. Reeves is also a former Registered Nurse (RN) who utilizes his prior medical training and experience in defending persons charged with DWI based on drug impairment. In many cases, there may be medical conditions or physical disorders that can mimic what may otherwise appear to be intoxication. Additionally, police are seeing more arrests involving prescription medications and illegal drugs. Given the complexities of human physiology, it is helpful to understand both the medical and legal aspects of a DWI. To speak with Mr. Reeves directly, call or nationwide , day or evening, weekends or holidays. You can also him at 19

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