Many people who come into our offices after having been charged or arrested for a Driving While Impaired (DWI) offense figure there’s a way to “beat” a DWI, and that if only they find a magic key, they’ll be sprung loose from the nightmare of a DWI conviction.
It’s a nice thought, but there is no easy way to “beat” a DWI, except in not getting one in the first place.
- Don’t Drink and Drive
Obviously if you don’t drink and drive, you’ve already “beaten” your DWI. You’ve also done us all a favor by not going on the roads in an impaired manner. Since the 1980s, with the advent of tougher DWI laws, the country has seen a dramatic reduction in traffic fatalities and injuries.
It’s not a satisfying answer to the question, but here’s something you should consider if you’re reading this article after having gotten your first DWI.
In North Carolina, a second DWI conviction within seven years is a mandatory 7 day stay in jail, and up to a year long prison sentence, depending on other factors. In addition, your license will be suspended for four (4) years, with a limited privilege only available to you at 2 years upon successful review at a DMV hearing.
So if you’ve gotten your first DWI, you must absolutely not get a second one, because the consequences for a second DWI within 7 years are severe. In addition, as of 2011, DWIs with three or more grossly aggravating factors can mean up to $10,000 in fines and 3 years in prison.
- Don’t Answer Questions
If you’ve been stopped by an officer during a checkpoint, a regular traffic stop (for speeding, serving, expired registration etc.), or after an accident, you should politely refuse to answer questions.
While you must provide your license and registration, and you may be required to exit your vehicle for officer safety, you are under no obligation to answer any other questions about where you have been, where you are going, how much you’ve had to drink, and so forth. In addition, you don’t have to perform any field sobriety tests, you don’t have to blow into the portable Preliminary Breath Test (PBT), and you don’t have to count numbers, or say your alphabet backwards.
If the officer wants to arrest you, then place your arms behind your back and comply. But don’t answer questions or engage in conversation.
The best way to help your lawyer beat your DWI is to give the officer as little information as possible about your condition prior to and during your arrest.
- To Blow or Not to Blow
Can a DWI be beaten by not blowing into a breathalyzer machine (Intox EC/IR II)? Maybe. But there are risks and costs. First, the Intox EC/IR II machine is the machine that is downtown either at the Public Safety Center, or at one of the police departments such as the Apex Police Department or Cary Police Department. An officer will typically take you to the closest Intoxilyzer room so that you can submit a breath sample.
Prior to asking you to submit to the Intoximeter chemical analysis, the officer or chemical analyst will inform you of your DWI Implied Consent rights. He or she will explain that your refusal to blow (in North Carolina, this is called a “willful refusal”) shall result in a one-year automatic license suspension, regardless of whether you are ultimately convicted of the DWI.
So the cost of a refusal is high. In addition, during the first six months of the refusal, you are ineligible for a limited driving privilege (LDP) which can be a real handicap, especially in Wake County with its inadequate public transportation system. And in order to be eligible for a LDP after the first six months, your case must be resolved and you must have completed your Substance Abuse Treatment if found guilty.
What are the benefits? In some cases, the police officer may decline to get a search warrant and get your blood. In those cases, the State will lack some crucial information – the Breath Alcohol Concentration (BrAC) or Blood Alcohol Concentration (BAC) – to prove your guilt.
But a police officer may take the short walk to the Magistrate and request a Search Warrant, which in almost all cases will be granted, and draw your blood, which will produce both a BAC for trial and also result in an automatic suspension for your willful refusal.
- Witnesses Fail to Show
A DWI might be won by default – the failure of the State to produce its witnesses within a reasonable period of time may result in the Judge denying the State’s “Motion to Continue” and therefore requiring the State to dismiss the charge.
Local Rules in Wake County (PDF download) indicate that all misdemeanor cases should be resolved within 120 days, and there is no exception for DWI cases. But, given the sheer volume of DWI cases, DWI cases may be continued for as much as a year or more in certain circumstances.
However, if the State’s key witnesses – either a officer, a chemical analyst, or an outside, civilian witness – are not present before the case appears on its final setting, then most judges will deny the State’s motion to continue, and force the case to be dismissed.
The State does have the option to refile any criminal case for which double jeopardy has not attached, and in the case of a voluntary dismissal (VD) in this case, jeopardy did not attach and a prosecutor may opt to refile.
For misdemeanors, the State has up to two years under N.C.G.S. 15-1 in which to file charges for a misdemeanor, which may mean that the case cannot be refiled if that time has lapsed.
- Failure to Provide a Witness to Observe the Blow
Since a key piece of evidence for the state is oftentimes the chemical analysis – that magic number showing a .08 BAC or more – one of ways that a Defendant can potentially win the case is if he or she requested a witness be present during the breathalyzer analysis, and police, deputies, or other officials thwarted the efforts of the witness to be present.
In State v. Ferguson, the North Carolina Court of Appeals ruled that the State’s actions prevented a witness from observing the Defendant’s chemical analysis. In that case, the Defendant was picked up by police, and brought to the breathalyzer room. He was informed of his rights to call a witness, and that he had 30 minutes to have the witness show up at the room. He called his wife, who could not believe that he was accused of a DWI because his speech did not sound slurred to her at all. Nonetheless, she got to the lobby of the building within 20 minutes, but was prevented from witnessing the Defendant, who later refused to blow.
The Court of Appeals ruled that if the State’s actions prevent the defendant’s witnesses from arriving at the room within the 30 minutes allotted, then the results – or fact of a refusal – will be suppressed at trial.
- Failure to Allow the Defendant Witnesses While Held in Custody
In the vast majority of DWI cases, a defendant will be released from custody almost immediately after seeing the Magistrate on what is called a “written promise to appear.” This is the Defendant’s promise to show up at court. No other bond conditions will be imposed.
But in certain cases, either for the safety of the Defendant because of his extreme intoxication or behavior, or because of past criminal history, or other concerns, a Magistrate may impose additional conditions, which the Defendant may not be able to meet immediately.
Because a DWI involves evidence of impairment that may quickly dissipate, North Carolina’s Supreme Court has ruled in State v. Knoll that a defendant has a right to collect evidence on his behalf, and this evidence may include having witnesses come to see him in jail. Therefore, a magistrate, upon a determination that additional bond requirements may be imposed, must inform the Defendant of his right to have witnesses come to the jail, and must provide the Defendant with the opportunity list those witnesses and contact information.
Failure to comply with the Supreme Court’s Knoll ruling may be grounds for the suppression of evidence and dismissal of the DWI case.
This Knoll issue is likely to become more common because a recent change to North Carolina’s pre-trial detention laws in DWI cases allows Magistrates to require the Defendant to use a Continuous Alcohol Monitoring device as a condition of release. If the defendant is held until a CAM can be fitted or equipped, the Defendant may be entitled to have his own witnesses present to observe him.
- Complying with Substance Abuse Requirements and Having Court Costs Ready
While this is not a way to “beat” a DWI, it is a way to reduce the costs and punishments associated with a DWI. First, taking a Substance Abuse Assessment (See: Wake County Treatment Providers) and pre-enrolling in the recommended treatment is a condition of being about to get either a pre-trial Limited Driving Privilege, or a post-conviction LDP.
But enrolling and either completing, or going some distance toward completing Substance Abuse Treatment, is a significant step toward showing a Judge or court that you have accepted responsibility and are rectifying matters. In addition, it’s consider a “mitigating factor” which can be used by your DWI lawyer to argue that you should have the lowest possible punishment available.
In addition, you should have your court costs – in cash or a cash-equivalent such as a cashiers check – available when you anticipate resolving the matter. Having these fees ready to pay is a requirement of being placed on unsupervised probation. As of November, 2011, the typical Level 5 DWI costs where about $600 to $900, not including the $100 fee for a Limited Driving Privilege. (While these costs might seem high – and they are – they are a fraction of what it will cost to purchase insurance during the next three years, which is a good reason to hire a good Raleigh DWI lawyer to try to beat your DWI charge.)
- Failure to Establish Reasonable Suspicion
Under the United States Constitution – and the Fourth and Fourteenth Amendments thereto – a person has a right against unlawful searches and seizures. When police stop a vehicle, that’s a seizure, however brief. Police may stop a vehicle for any number of reasons, including in order to ticket the motorist for a violation of the North Carolina’s traffic laws.
In addition, a police officer may stop a vehicle where he has not observed a traffic infraction, but where he has reasonable suspicion or reasonable, articulable suspicion. This is also known as a Terry stop.
A Terry stop is based on “whether the facts available to the officer at the moment of the seizure or the search ‘warrant a man of reasonable caution in the belief’ that the action (i.e., the stop) taken was appropriate.”
What counts as “reasonable suspicion”? Weaving alone is not enough. In State v. Fields, the Court of Appeals held that weaving alone does not justify a stop, however, other factors may be added to the equation to justify a stop.
If judge agrees with your DWI attorney at the stop was not justified, then the case will be dismissed, however the State may appeal this decision to Superior Court for a new hearing in the matter.
- Failure to Establish Probable Cause
Under the Constitution, you have a further right not to be arrested without probable cause. This protection means that police must have some evidence to suspect that you are guilty of a criminal offense before slapping handcuffs on you and arresting you.
The vast majority of DWI cases turn on the question of “probable cause,” because this is before the breath result is taken, but where the legal standard is high enough to warrant a judge overturning the arrest. If you win on a probable cause motion, then the case will be dismissed (although the State may appeal a District Court judge’s determination about the lack of probable cause).
You should remember that probable cause is not a very high standard. It is higher than “reasonable suspicion.” The NC Supreme Court said in State v. Zuniga
Probable cause for an arrest has been defined to be a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing the accused to be guilty…. To establish probable cause the evidence need not amount to proof of guilt, or even to prima facie evidence of guilt, but it must be such as would actuate a reasonable man acting in good faith. (quoting State v. Harris (1971))
In other contexts, North Carolina’s appellate courts have held that a police officer may have probable cause to believe a DWI may be involved if the person has engaged in faulty driving, and either admits to, or is found smelling like alcohol.
- Expert Witnesses
Sometimes the State’s case is strong, but your case may be made stronger through the use of an expert witness. An expert witness may be able to testify as to defects in the State’s case, for instance the failure by the arresting officer to properly administer the Standard Field Sobriety Tests created by the National Highway Traffic Safety Administration (NHTSA) and part of North Carolina’s Basic Law Enforcement Training (BLET).
For instance, officer will typically testify about the Horizontal Gaze Nystagmus (HGN) test, and about how that test, which purports to show the involuntary jerking of the eyeballs, is the most accurate of the three SFSTs. However, many officers fail to administer the test properly, either by leaving their strobe lights on (which can cause a condition that can be confused with Nystagmus).
Or the officer will testify about the administration of the Walk-and-Turn Test, but fail to accurately describe the instructions he gave the the person on the evening of the DWI.
An expert witness will be able to evaluate these aspects of the case, and will conduct field measurements which can show that the conditions at the scene were not suitable for the administration of SFSTs.
These are some of the ways you can “beat” a DWI. A DWI is a serious matter, and you should at least consult with a professional Raleigh DWI lawyer about your case before taking further steps that might jeopardize a successful outcome.