A North Carolina Guide to Driving While Impaired (DWI)

A North Carolina Guide to Driving While Impaired (DWI) Fighting a DWI Charge, Getting Your Life Back on Track By Damon Chetson Criminal Defense Lawyer, Raleigh, NC Call: (919) 352-9411 Email: info@chetson.com Visit: www.chetson.com

Forward If you re reading this book, you or a loved one is facing a Driving While Impaired charge. This is probably the first time you ve ever been in trouble with the law. Maybe you ve had a speeding ticket in the past. Or maybe you were caught running through a red light a few years ago, and had to pay a ticket. But this is probably the first time you ve ever been faced with a serious criminal charge. And you re scared. I ve written this book for you. My goal is to give you as much information as possible to help set your mind at ease. I hope to give you information to help you understand the choices and decisions you might have to make. The information contained in this book is meant to educate you. This book should not replace the advice you will get from an attorney. Each DWI case is different. Only a lawyer can properly advise you about how the law applies to the facts in your case. Important Note The information in this book is not legal advice, but is rather provided for informational or educational purposes. Laws change and each case is different. It is important that you consult with your lawyer before making decisions about your case. This book does not create an Attorney- Client relationship between you and the author. This book is geared toward North Carolina DWI law. I am a North Carolina criminal defense lawyer, and only able to talk about the way DWI laws work in North Carolina. I ll give you a little history, and a little bit about the politics behind the DWI. Your DWI is a serious matter, but you might be interested to know how such laws came into being, and some of the odd facts about the history of drunk driving. Finally, I ve written this book with my clients in mind. I practice law primarily in Wake County (Raleigh), North Carolina. While a DWI is serious, it is something that can be handled appropriately. In other words, there is life after a DWI arrest. Have hope. If you have any suggestions for additions to this book, or questions for me, you can always email my office info@chetson.com or call us at (919) 352-9411. What is a DWI Charge? A Driving While Impaired (DWI) charge involves the State (in this case, the State of North Carolina) claiming that a driver has operated a vehicle on a street, highway, or public vehicular area while impaired. Note that a DWI is simply North Carolina s term for the charge of driving while impaired. Other states have different 1

names: Driving Under the Influence (DUI), Driving While Intoxicated (DWI), or Operating under the Influence (OUI). These are all similar charges. In North Carolina, the legislature has simply referred to it as a DWI. A DWI charge almost always starts with a police officer claiming that he saw the driver driving a car while impaired. 1 mail from attorneys and other folks offering DWI- related services. The DWI arrest and charge starts legal proceedings against you. From that point forward, in the eyes of the State of North Carolina, you are a Defendant who has been charged with breaking the law. A charge is merely an accusation. Yes, it s a serious accusation. But a charge alone is not proof that the person charged had actually committed a DWI offense. In the United States, people are innocent before proven guilty. That means that the state must do more than simply say that the driver was impaired. The state must prove, with evidence, that the driver was impaired beyond a reasonable doubt. In other cases, a person may be impaired, but the prosecutor may have difficulty proving the person was impaired at the time he or she was operating the vehicle. Or even that the person was the driver! An arrest resulting in a DWI charge becomes a public record. After a driver is arrested on a DWI, a driver will get dozens of letters in the 1 I ve not used the word drunk to describe impairment. The North Carolina Supreme Court as early as 1964 said that under this State s laws, the prosecutor does not need to prove the driver was drunk or materially impaired. Rather the prosecutor merely needs to show that the person was appreciably impaired, a lower level of intoxication. State v. Painter, 261 N.C. 332 (1964) Quick Tip Talking to Your Boss Some employers subscribe to monitoring services that send alerts if employees are arrested. While you might choose to keep news of your arrest a secret, you ought to consider whether your employer may find out about the arrest from other sources. Is it better for your boss to hear about your arrest from you? Only you can decide. date. What happens when I am charged with a DWI? You will be told about the charges against you by a Magistrate. A Magistrate in North Carolina is not a judge. Rather, a Magistrate is a judicial officer of the District Court North Carolina s lowest court. A Magistrate s role is to provide an independent, unbiased review of the police officer s charges. In reality, a Magistrate rarely will second guess the officer s allegations against you. On those rare occasions when a Magistrate does reject the officer s claim that you were driving drunk, no charges will be filed against you. But in most cases, the Magistrate will agree with the police officer, and DWI charges will be filed against you. You will be given a court In addition to being charged with the crime of DWI, your license will usually be suspended for at least 30 days, especially if you refused to submit to a chemical analysis or if you gave a Breath Alcohol Concentration of.08 or higher. 2

This is called a Civil Revocation. Later in this book I will explain how the Civil Revocation procedure works. I ll also explain how you or your attorney can get your driving privileges back. Finally, if the Magistrate has approved the charges against you, the Magistrate will also set the conditions for your release from custody. At the time of your arrest when you were handcuffed and placed in the police officer s car you were placed into custody. You have remained in custody throughout the breathalyzer and booking process. In most cases, the Magistrate will release you if you sign a document in which you make a written promise to appear at court. In some cases, the Magistrate will decide to hold you in custody until you pay a bond. The bond guarantees that you will show up in court, or else you will lose your money. Finding a top Raleigh DWI Lawyer If the Magistrate sets a bond, you may have to spend a night, few days, or even weeks in jail until you can either pay the bond, or you or your lawyer can convince a Judge to lower the bond. If the Magistrate sets a bond in a DWI case, the Defendant must be informed of certain special rights to allow Finding a lawyer can be a challenge. Possible sources include: Google, Avvo, family, and friends. Avoid hiring the cheapest lawyer. Lawyers who charge low rates must take a large number of cases in order to keep their doors open. Choose a lawyer who talks about how he or she will defend the case, not how he or she will get the best plea deal. You want a lawyer who is going to investigate the case, and fight for you. You want a lawyer focused on going to trial, not a lawyer who wants to get rid of your case quickly through a plea deal. friends or family to come to the jail to observe him while he is supposedly still impaired. If You should write down names and phone numbers of anyone you would want to observe you, even if you think there is a small chance of them being reached or coming to the jail. What Do I Do Now? Let s assume you were arrested, processed, charged, and released. After getting a ride home or hailing a cab you have some thinking to do. The first thing you should do is to think carefully about the entire night. If there were any other people in the car, make sure that you have contact information for them. If there were any witnesses to the stop, and you can track down their names and phone numbers, you should do so. You should also write down notes about the night, including anything you said to the officer or the officer said to you. You should keep these notes confidential, and store them in a safe place that only you can get to. Next, you should begin looking for an attorney. If you can afford to hire an attorney, you should do so. 3

If, however, you are unable to afford an attorney, the State of North Carolina may provide you with either a Public Defender or a private attorney who takes court appointed cases. A Limited Driving Privilege is an Order granted by a judge. You must keep this paper with you when you re driving. The LDP permits you to drive under certain conditions. Read the LDP Order carefully, or discuss it with your lawyer. How Can I Get My Driver s License Back? When you were arrested, your right to drive on North Carolina s roads was probably temporarily suspended. North Carolina has a Civil Revocation law, which requires the driver to give up his license to a police officer at the time the driver is charged by the Magistrate with the crime of DWI in most cases. The revocation period lasts at least 30 days. At the end of the 30 days, the driver or the driver s attorney may be able to get the license from the courthouse after paying $100. If you need to drive sooner, in most cases you can request Limited Driving Privileges (LDP) from the court after just a 10- day revocation period. Limited Driving Privileges require you to pay the court a $100 fee, submit a Substance Abuse Assessment form, proof of valid insurance, and a seven (7) year certified DMV driving history. Your lawyer can help you get this material together, submit the forms on your behalf, and get your LDP from the court. Once you get your Driver s License back from the court after your arrest, you have your full driving privileges back. Again, discuss this issue with your lawyer to Limited Driving Privileges ensure you are following the law. You may be able to get your limited driving privileges ten (10) days after your arrest. The most important step is to get a Substance Abuse Assessment from an approved agency. Talk to your lawyer first. You ll also need to have your insurance company fax you or your attorney a DL-123 form. And you or your attorney will need to get a copy of your seven (7) year driving record. Do not drink and drive during this period. A second DWI charge will complicate up your legal situation and can potentially result in a mandatory jail time. What Happens in a DWI Case? A DWI case, like any criminal case in North Carolina, will end in either a conviction, an acquittal, or a dismissal. Very rarely is a DWI reduced to a lesser charge, such as Careless and Reckless. You can be convicted of a DWI offense either by a judge (in District Court) or a jury (in Superior Court). You can also be convicted of a DWI offense if you plead guilty to the offense. A District Attorney can decide to dismiss your DWI case for a variety of reasons, including the weakness of the case or because you have entered into a plea agreement whereby you are pleading guilty to other charges. If your case is dismissed, you face no criminal liability from the DWI charge. In reality, 4

however, the District Attorney almost never reduces and rarely dismisses a DWI. 2 How Long Does This Take? A judge might deny the State s request for a new court date because the prosecutor has not moved quickly enough to prosecute the case. The judge s decision will require the prosecutor to dismiss the case, although statute gives the prosecutor the option to re- file the charges. Finally, you might be acquitted of the charges. An acquittal is a finding by a Judge (in District Court) or a Jury (in Superior Court) that you are not guilty that the State has not proved its case beyond a reasonable doubt. If you are found not guilty, you incur no further criminal liability from the DWI charge. If found not guilty, you pay no fines or costs of court for the DWI offense, and will, with certain exceptions, suffer no additional suspension of your driving privileges. You may also be eligible for an expungement that wipes your record clean of any mention of the DWI arrest or Civil Revocation. Alcohol/Drug Treatment 2 North Carolina law dissuades prosecutors from reducing or dismissing DWI charges by requiring prosecutors to report reductions or dismissals to their bosses (the elected District Attorney) and the Administrative Office of the Courts. Prosecutors must give a detailed explanation of the reasons. See N.C.G.S. 20-138.4 The one thing you can do to help mitigate or lessen your sentence, if convicted, is to get a Substance Abuse Assessment and participate in any recommended treatment programs. Talk with your DWI lawyer about this. There are a number of Wake County substance abuse treatment facilities, some private, some countysupported. Visit www.chetson.com/treatment for an up-to-date list of treatment providers. The answer is: it depends. You could walk into court on your first court date which is usually a month after your arrest and demand a trial. You will almost never get one in Wake County. That s because there are so many cases in Wake County s courts that, even if you wanted a trial on the first court date, there d be no where to hold one. Also, if you wanted to get the case over quickly, you could walk into court on the first setting and offer to plead guilty to the charge. The DA would surely take you up on the offer, since it would save her the time of proving his case. You could walk out of court with the whole thing resolved, except that you would be sentenced to some period of community service or jail, a suspension of your license, and so on. In most cases, you don t want to plead guilty on the first court setting. As a result, in the real world your case will probably take at least 6 months, probably as much as a year. If you decide to appeal your case to Superior Court, your case could last 18 months to two years. My clients often say to me, I d like to get this over quickly. Why do I have to wait so long? The answer is that it may be in your best interests for the case to take a long time. 5

That s because the longer it takes for your case to get resolved, the better the result may be for you. For example, memories fade. The police officer who arrested you will remember details related to your case today because he just arrested you a couple of weeks ago. Waiting to resolve your case is an approach you may want to utilize. Talk to your attorney about how this tactic can be used to help your case. What s My Status While I Wait for a Trial? In the United States and in North Carolina, you are presumed innocent until proven guilty. You ve got your license back. You can live your life in the meantime. Every so often you ll have to go to court. Many of my clients are anxious to get this unpleasant experience behind them. My advice: I m on the case, and that they should just relax. Let s wait and see what evidence the DA has, and perhaps let s do our own investigation. Maybe we should hire an expert in your matter. There is no reason for you to rush to a judgment, and throw yourself on the mercy of the court. The time may come for that, but not until we exhaust all of your legal options. What Should I say to a Cop? Nothing. If the officer asks you questions, you should simply stay silent or tell the officer you don t wish to answer. For instance, if the officer asks you, Do you know why I pulled you over? you can respond by asking the officer a question: Officer, did I do anything wrong? Or if the officer asks you, Have you been drinking tonight? you can respond by saying: Officer, I d like an attorney present. While you are required to provide your license and registration and to exit the car for officer safety, you are not required to talk to a police officer. You are not required to answer his questions. Be polite. Be respectful. But do not answer questions. Sit tight and relax. Go about your life. What steps can I take to help my case? Your attorney may recommend that you take a Substance Abuse Assessment. In order to get a Substance Abuse Assessment, you will need to set up an appointment with a qualified agency usually a private treatment center. You will have private, one- on- one session with a counselor for about 40 minutes. The counselor will ask you a variety of questions about your use of alcohol or drugs. At the end of the session, the counselor will write- up an assessment which he will send to you or to your attorney. Your substance abuse assessment is valid for six months. It will recommend at least some form of treatment. At the lowest end, the assessment might recommend Alcohol and Driver Education Traffic Safety classes. Or out- patient treatment involving your attendance at 20, 40, or more hours of evening or weekend classes. At the upper end, the assessment might recommend In- Patient Treatment for serious cases. 6

If you don t begin treatment within six months of the assessment, you will need to get re- assessed. Talk about this issue with your lawyer. An assessment and pre- enrollment is required in order to request Limited Driving Privileges (LDP) during your civil revocation period, and to be granted a LDP if you are convicted of the DWI. But, more importantly, getting a Substance Abuse Assessment and completing the recommended treatment program is one of the few things you can do, following your DWI arrest, to help reduce the sentence that the judge will impose if you are convicted. For that reason, many lawyers will recommend that you get the assessment (for your LDP) and, if necessary, perform treatment. A Substance Abuse Assessment and pre- enrollment will cost $125. Treatment costs vary, but can range from about $125 for ADETS to $400 for 20 hours of out- patient treatment to about $1,200 for more intensive forms of out- patient treatment. In- patient treatment is more expensive, although health insurance may cover at least part of the cost. Field Sobriety Tests Your assessment is valid at any agency, so you can shop around for the best (or least expensive) treatment provider. The officer can require the driver to perform a Standardized Field Sobriety Test (SFST). Only three tests have been approved by the National Highway Traffic Safety Administration (NHTSA). Horizontal Gaze Nystagmus follow-the-light or pen with your eye. Walk and Turn nine steps in one direction, turn around, nine steps back heel-to-toe. One-Leg Stand a balancing test, The HGN test is the most accurate of the three tests, but most police officers don t perform the test properly. In addition, NHTSA requires that all three tests been performed in order for the result to be reliable. Officers can t pick and choose which to perform. How Do I Defend My Case? he stopped you. Let s talk a little bit about your case and how your lawyer may defend you against the charges. Each case depends upon the facts and circumstances that led to the arrest and the charge. You should talk to your DWI lawyer about how the facts in your case might affect the outcome. What follows is a general discussion of a typical DWI scenario. The typical DWI stop is broken down into three phases: Phase I: Vehicle In Motion Phase II: Personal Contact Phase III: Pre- Arrest Screening In fact, this method of examining a DWI stop is used across the United States and in North Carolina by police officers, prosecutors, and defense attorneys in evaluating the stop. Your defense lawyer should carefully evaluate each stage of the DWI stop to make sure that the police officer who stopped you followed the law and the constitution when 7

Phase I: Vehicle In Motion An officer s first job is to watch the moving car to note any initial cues of a possible DWI violation. At this point, the officer must decide whether there is enough reason to stop the car. Based on these initial observations of the moving car, the officer must decide whether there is reasonable articulable suspicion to stop the vehicle. At this point the officer has three choices: If the officer has a reasonable articulable suspicion that the driver is impaired, he can stop the car. Or if the officer sees the driver committing a traffic or criminal violation broken headlight, running a red light, speeding, etc. the officer can stop the car to issue a citation for the offense. At this point, the officer is not required to arrest the driver for a DWI based on this initial observation. Instead, the officer should try to gather all evidence that may suggest a DWI. For instance, the officer may see the way the driver responds to the officer s signal to stop, and note any other evidence of a DWI violation, including: unusual driving actions weaving within a lane, moving at slower than normal speed, evidence that the driver is drinking while driving. Different Levels of Suspicion The legal system has different levels of proof which apply in a DWI case. The lowest level of proof is Reasonable Articulable Suspicion or Reasonable Suspicion which is the easiest for the police officer and the DA to make. The next level of proof is probable cause. Probable cause is in the Fourth Amendment; a police officer must have probable cause before arresting you. Probable Cause exists when "the facts and circumstances within the arresting officer's knowledge are sufficient to warrant a prudent person to believe that a suspect has committed, is committing, or is about to commit a crime." In order to be convicted, the judge or jury must find beyond a reasonable doubt which is the highest burden. stop the vehicle, continue to observe the vehicle, or disregard the vehicle. A DWI lawyer will examine the officer s behavior during Phase I carefully to figure out whether the police officer jumped to a conclusion without forming a reasonable articulable suspicion. Reasonable articulable suspicion (RAS) or reasonable suspicion has a specific legal meaning. It is a standard that requires the officer to development enough specific facts so that a reasonable officer in the officer s situation would have had suspicion to believe a crime was afoot. An officer can t simply say that he had a hunch that the driver was committing a DWI. The officer must give specific facts that caused him to have the suspicion that driver was committing a DWI. Your defense lawyer should look at carefully at each reason cited by the officer to see whether it makes sense. And your lawyer 8

should see whether there is other evidence that contradicts the officer s facts. For instance, if the officer followed the car for just a block before stopping the driver, the officer s claim that he observed the car weaving in and out of traffic may not be credible. The officer may not have had time to watch the car to tell whether it was really weaving. In the United States and North Carolina, police officers cannot simply stop cars absent a valid, legal reason. If the officer did not have reasonable suspicion before stopping the vehicle, the officer may have conducted an invalid stop. If the officer conducted an invalid stop, a judge, hearing those facts, is likely to throw out the DWI case because the officer violated the driver s constitutional rights under the Fourth Amendment and North Carolina s Constitution. Phase II: Personal Contact The next step in a DWI arrest is Phase II: Personal Contact. During this Phase, the police officer will approach the car, and observe the driver, the driver s car, and any Miranda Doesn t (Usually) Apply If you watch police shows on television, often police will forget to read the defendant his rights. Then the lawyers in the show will argue that his Miranda rights were violated and he should be let go. In the real world, defendants rarely benefit from the protections in Miranda. That s because police usually do read the defendants their rights, and the defendants agree to talk. If you re read your rights, and you agree to talk anyway then Miranda doesn t apply. Or the police question the defendant while the defendant is free, on the street. If the police question the defendant while he s not in custody, the police don t have to read him his rights. Miranda rights come from the case Arizona v. Miranda (1966). Ernesto Arturo Miranda was ultimately convicted of the crime of rape, but only served 5 years. of the driver s actions that might show that the driver has been drinking. For instance, the officer will look for such things as: bloodshot eyes, fumbling with the driver s license, difficulty finding the insurance card, dirty or disheveled clothing, and alcoholic beverages in the vehicle. The officer will be listening for slurred speech, and admissions of drinking or drug use, inconsistent answers, or abusive language. Other signs the officer is looking for during Phase II are the odor of cover- up scents such as mints, mouthwash, perfume or cologne. The key to this Phase of the arrest is figuring out whether the police officer detained the driver too long. If, for instance, the officer stopped the car because the driver was speeding, and the officer keeps the driver for an excessive period of time in order to see whether the driver has been drinking where there are no obvious signs of impairment, the officer may have violated the driver s constitutional rights. 9

That s because the police officer, when stopping a car on reasonable suspicion or because the driver was speeding, weaving, or had headlights out, is only allowed to keep the driver so long as it takes to issue a citation or develop additional facts of a DWI. An officer who keeps the driver stopped for too long may have violated the driver s rights. A Judge, seeing such facts, may throw out the DWI case because the driver s rights were violated. Phase III: Pre- Arrest Screening Phase III is the final phase before the officer arrests the driver on a DWI. The main focus during Phase III is on the driver s performance on the Standardized Field Sobriety Tests (SFSTs). During this Phase the officer might also ask the driver to blow into a Preliminary Breath Test (PBT, or hand- held breathalyzer) to determine the presence of alcohol. The PBT should only be used to support the SFST; it should not be used in place of SFSTs. In North Carolina, the actual results of a PBT are not admissible at trial (but they may be admissible at pre- trial hearings). The SFSTs not only determine impairment but also whether the driver can perform divided attention tasks. The only three SFSTs validated by the National Highway Traffic Safety Administration (NHTSA) are the (1) Horizontal Gaze Nystagmus; (2) Walk- and- Turn; and (3) One- Leg- Stand. After the driver has performed the SFSTs, the officer will make a decision about whether the driver is drunk. The officer should use the totality upon the totality of the evidence developed during all three Phases of DWI detection. An officer who conducts just one or just two of the three tests has not completed the SFST in accordance with the National Highway Traffic Safety Administration s recommended procedures. A lawyer should be able to evaluate whether the tests were completed properly, and if they were, whether the results showed that the driver was impaired according to NHTSA s standards. Why is Phase III so important? It s important because the officer must develop enough evidence probable cause that the driver has committed the crime of DWI in order to handcuff and arrest the driver. If the officer leaped to the conclusion that the driver had committed a DWI without developing enough evidence, the officer has violated the driver s rights. In that case, the driver may end up winning the case, provided a Judge agrees that the officer violated his rights. If the officer believes he has probable cause, he will arrest. Note that just because an officer believes he has probable cause does not mean he s correct. A judge will can be asked to review the officer s decision to make sure that he did have probable cause. If the judge 10

believes the officer made a mistake, and was too hasty in arresting the driver, the judge can throw out the rest of the evidence collected, and throw out the DWI case. That s fine, and your rights have not been violated. The only time the officer is required to read you your rights is when he wishes to interrogate you while you are in custody. The Arrest & Breathalyzer If the officer did not find enough evidence to arrest you, the officer can let you go, maybe with a warning. But if the officer does think he has enough evidence that you ve committed a DWI, the officer can arrest you. At this point, you will be handcuffed and placed into the officer s car. The officer will take you to the police station, the Public Safety Center in downtown Raleigh, or to a mobile DWI vehicle where you will be processed, asked to blow into a breathalyzer, (North Carolina uses the Intox EC/IR II machine, manufactured by Intoximeters, Inc.) and, hopefully, released on a written promise to appear. If the officer wants to ask you any questions during this period, since you are in custody, you must be Mirandized or informed of your rights to an attorney and your right to remain silent. The Breathalyzer Machine North Carolina police agencies use the Intox EC/IR II which uses an electrochemical and infrared sensor to measure the alcohol concentration in a breath sample. Police agencies prefer breathalyzer machines over a blood test. That s because a blood test is more expensive and time-consuming to administer. Whereas a breathalyzer machine is basically free to operate after it s been bought. It just needs regular calibration and upkeep. In addition, if you make any spontaneous utterances or admissions on your own, without being asked questions, those are admissible in court even if you haven t been Mirandized. Once you get to the police station, jail, or mobile DWI unit, you will be processed and breathalyzed. It s important for you to not make any statements during this process. These might be used against you. The police officer will try to have you breathalyzed as soon after your arrest as possible. This is because the longer he waits, the less likely the breathalyzer machine will show a reading that reflects your blood alcohol concentration (BAC) at the time you were driving. Pay attention to who is watching you, and if at any point you are left unobserved, remember those facts so you can later tell your lawyer. Instances when you are left alone could be valuable to your case, showing that the police did not exercise proper procedure when the breathalyzed you. Should I Refuse a Breathalyzer? In some DWI cases, the officer will not Mirandize you because the officer does not want to ask you any questions. In North Carolina, you have the right to refuse to take a breathalyzer test. In fact, the person administering the test 11

the police officer himself or the breathalyzer technician certified as a Chemical Analyst is required to provide you with a written explanation of your rights. If you are able to have someone including an attorney come to watch you get breathalyzed, that is best. Often, though, people don t have an attorney to call. They often have to make a quick decision about whether to blow into the breathalyzer machine or not. If you refuse a breathalyzer test, your license will be revoked for one year, even if you are not convicted of the DWI. The bad news is that during the first 6 months of your year- long revocation for refusing to submit to a breathalyzer you have no right to drive at all. You cannot apply for Limited Driving Privileges. However, after the 6 months are up, you may be able to apply for Limited Driving Privileges. Refusing to blow into a breathalyzer, therefore, results in some harsh punishments: the loss of any right to drive in North Carolina for six months. In addition, in most cases, a refusal will simply force the officer to get a search warrant, which is easily obtained, to have blood drawn from your arm. Giving Blood. The police officer can ask you to give blood instead of or along with blowing into a breathalyzer. In addition, if you refuse to blow into a machine, a police officer may be able to get a blood sample by requesting a warrant to stick a needle in your arm. Again, you are not required to give blood unless the police have a search warrant, but because North Carolina is an implied consent state, your license will be revoked for one year if you refuse. (See above for my discussion of breathalyzer refusals.) A blood test can be more accurate than a breathalyzer exam, but requires that the blood be transported and stored properly prior to testing.. But if blood is given, it may take the State Bureau of Investigation the state s equivalent of the FBI months to get the results back. Your case will take a long time to resolve. If the blood test reveals that you had a BAC of.08 or above, that result may be accurate provided that the sample was preserved properly, stored properly, and tested properly. While there are ways to challenge the result by showing that the police didn t follow a proper chain of custody in handling the blood sample if the blood test is admitted into evidence, your lawyer should come up with other arguments to challenge the DWI. I blew a What will happen? If you blew a.08, and if your lawyer cannot challenge the admission of that into evidence (using the techniques described above regarding Phase I, Phase II, and Phase III), and if your lawyer can t show that the number you blew was within the margin of error of the breathalyzer machine, then you stand a likelihood of being convicted. However, some juries require some additional evidence of impairment with a.08 or.09 breathalyzer result. So, if you 12

failed the Field Sobriety Tests, for instance, then that in addition to the.08 or.09 might be enough to convict you. Note that you do have legal defenses, and your lawyer should look at all of them. But if those defenses do not work, and the test result is admitted into evidence, then the District Attorney has proved what is called per se impairment. Per se impairment means that a judge or jury can find you guilty based on the BAC number alone. The DA does not need to prove any other facts regarding your impairment. If you blew or got a blood test that show you were below.08, then you are not out of the woods. That s because under North Carolina law, the police officer can offer into evidence other facts that could be used to convict you. For instance, the police officer could point to your driving, your slurring of words, unsteadiness on your feet, your admission of how much you had to drink, etc. etc. to show that you were impaired, even if the breathalyzer machine revealed a result lower than.08. This is sometimes called common law proof of impairment. It s the old way before the introduction of breathalyzer machines of showing the driver was impaired, and it is still frequently used where the police don t have a result at all or don t have a result showing a breathalyzer of.08 or above. When your breathalyzer result or blood test result is below a.08, your attorney may wish to have that fact introduced into evidence to prove that you were not impaired. You want to talk to your DWI lawyer about this so you can understand his strategy. What Other Defense Do I Have? There are potentially a large number of defenses to a charge of Driving While Impaired. It would take hundreds of pages to describe them all, but other possible defenses might include a defense that you were not the person operating the vehicle, that the vehicle was not on a highway or Public Vehicular Area (PVA), that the prosecutor can t prove the consumption of alcohol (or other impairing substance) occurred before the driving, that the prosecutor can t prove that there was sufficient quality of an impairing drug in the person s body, and that, simply, the person, was not appreciably impaired. In addition, there may be particular defense relating to how long you were kept in custody following your arrest, whether that detention was lawful, and whether you were afforded the opportunity to have a witness visit you during the testing or your detention. What Consequences Do I Face? North Carolina s DWI laws are some of the harshest in the nation. There are six levels of punishment for all DWI offenses committed as of December 1, 2011. Aggravated Level 1, Level 1, and Level 2 are the three harshest levels and require a finding of at least one or more grossly aggravating factors. Level 3, Level 4, and Level 5 are the least harsh levels, with Level 5 being the lowest possible punishment level within the 13

DWI framework. A judge at the sentencing hearing will weigh aggravating and mitigating factors to determine the appropriate sentencing level, and then impose sentences within that level. Let s talk about Level 4 or 5, which are the two most common sentencing levels. A judge will often impose between 24 and 48 hours of community service (or jail time, depending on the defendant s request and the judge s inclination), fines and costs of between $600 and $800, and a suspended sentence of up to 120 days with, in many cases, unsupervised probation. In addition, the person will need to surrender his or her North Carolina Driver License (out- of- state residents are handled differently) for one year and not operate a vehicle on North Carolina s roads for at least a year. North Carolina is constantly increasing its fines and court costs. Since 2009, costs have risen by more than $50, and a special $100 cost was imposed for all DWIs as of December 1, 2011. No Prayer for Judgment Continued (PJC) is available for a DWI, although a PJC may be available in very special circumstances for the Provisional DWI (Driving After Consuming under the Age of 21) also known as the Baby DWI. Talk to your criminal defense lawyer about what constitutes a Grossly Aggravating or Aggravating factor. In addition, to the extent you can do things to improve your case before going to trial, talk to your defense lawyer about mitigating factors available to you in your matter. Final Words It s important to note that a North Carolina DWI is forever. It is a permanent part of your public record. While over time the effects will surely fade, a DWI is a serious matter that can t be erased by expungement or the passage of time. In addition, you should expect your insurance rates to increase by as much as 400 percent for at least the next three years. 14

About the Author Damon Chetson is a criminal lawyer based on Raleigh, North Carolina. He represents people in Wake County, the Research Triangle, and throughout North Carolina. Approximately half his practice is devoted to Driving While Impaired (DWI) cases, while the other half focuses on other serious criminal offenses in both State and Federal Courts. A graduate of the Law School at the University of North Carolina, Chapel Hill, Mr. Chetson is licensed to practice in all of the state courts of North Carolina, as well as the federal courts of the Eastern District of North Carolina. Mr. Chetson has attended some of the same training as police officers who enforce DWI laws, including the National Highway Traffic Safety Administration s DWI Detection and Standardized Field Sobriety Testing course. Mr. Chetson lives with his wife and their dogs and horses on a small farm in Wake County, North Carolina. The Chetson Firm, PLLC 19 West Hargett Street Suite 920 Raleigh, NC 27601 Call: (919) 352-9411 Email: info@chetson.com For more information, visit: www.chetson.com The Chetson Firm, PLLC, 2012 15