DWI Case Review | The Chetson Firm, PLLC – Aggressive Raleigh Criminal Lawyer

You provided some answers to questions we asked. We'll use your answers to give you some information about North Carolina DWI Law. The information provided does not replace advice from a lawyer. If you'd like to speak to a lawyer about your case, call (919) 352-9411.

If you were charged with a DWI, the State of North Carolina must prove that you were operating a vehicle upon a public road or public vehicular area (PVA) while:

1. You registered a .08 or above on a blood, breath, or urine test at a relevant time after driving.

2. Show through observations of the officer, poor driving, or poor performance of Field Sobriety Tests that you were appreciably impaired. The State does not need to show you were drunk.

3. Or show that you had any amount of a Schedule I (opiate) in your system at the time of driving.

If you were under 21 at the time of the DWI arrest, the State merely needs to show that there was any amount of alcohol in your system, however small. This crime is called Driving After Consuming under the Age of 21. It is a Class 2 misdemeanor. Odor is not enough. The state needs some other evidence: perhaps you admitted you were drinking. You can be convicted of both the DWI and the Driving After Consuming. It is vital that you talk to a lawyer about these matters, as they can affect your ability to get into or stay in college.

If you've been charged with Felony Serious Injury by Motor Vehicle, Death by Motor Vehicle, or Habitual DWI, you face very serious consequences from your DWI. You will certainly want to hire a skill DWI lawyer who can help you achieve a positive outcome.

If you were charged with other crimes or traffic infractions when you were arrested for the DWI, your attorney may be able to resolve your matter through a plea agreement with the state. Before you do this, make sure you consider whether it is in your best interests to plead guilty to a DWI.

In the United States, a police officer cannot simply randomly stop cars and conduct DWI investigations. Simply put, the officer needs a justifiable reason to stop the vehicle. An attorney at The Chetson Firm will evaluate the circumstances surrounding the stop to determine whether there was any reason to justify the stop. If there was no reason for the officer to stop the vehicle, then your DWI case might be dismissed for lack of Reasonable Suspicion, even if you blew a high blow later in the evening.

You indicated that the officer stopped the vehicle for a traffic violation. If you committed a traffic violation - speeding, expired registration, headlights not on at night, careless and reckless driving, running a stop sign or stop light, etc. - then the officer had a justifiable reason to stop your car.

You indicated that the officer did not tell you the reason why he stopped you. If the officer stopped your vehicle, but did not indicate that you committed a traffic violation, the officer may have violated your rights. However, the officer can stop a vehicle based on Reasonable Articulable Suspicion, which is fairly low standard. If the officer observed you weaving and driving especially slow, that might be enough to justify a stop. Your lawyer will examine the officer's DWI Report to determine whether there was Reasonable Suspicion to stop your vehicle.

You indicated that the officer did not see you driving. If the officer did not see you driving (and you did not admit to driving), the State may have difficulty proving that you driving the car.

You indicated that there was an accident involving another vehicle. The other vehicle's driver (or passengers) may come to testify that you were driving your car, and may testify about how well (or badly) you were driving.
In addition, there may be insurance implications from the accident. You should talk to your attorney about how to handle the insurance matter, including any statements you make to your insurance agent.

You indicated that you had an accident, but no other vehicle was involved. It you ran off the road, or if you hit a tree or curb, the State may have difficult in proving both the timing of the accident and whether you were the driver. This is especially true if there were no witnesses and you made no admissions about when you were drinking or whether you were driving. These issues are called "Trexler" and "Relevant Time" issues.

If you had adult passengers in your car, and they can testify about how well you did on sobriety tests or how well you were driving, you may have a strong case. However, if the other passengers were impaired, then they may not be valuable witnesses since their credibility may be attacked by a prosecutor.

A checkpoint DWI is a special kind of DWI case involving special Constitutional issues. Your attorney will want to examine the purpose of the checkpoint - which can't be for general crime enforcement - as well as whether there was a checkpoint plan, and how that checkpoint plan was enforced.

You indicated that you were not stopped on a road. If you were not on a road, highway, or public parking lot (Public Vehicular Area) then you may not have committed a DWI. For instance, if you were driving off-road, or on a private access road, then a DWI may not have been committed.

If your car was stopped and the motor was not running when the officer discovered you, you may not have committed a DWI. However, the vehicle's motor must be completely off. If the motor was running (to keep the car warm, for instance) then that is considered "operation" and could potentially be a DWI.

If you were driving a Commercial Vehicle when you were arrested for the DWI, then North Carolina law provides that your BAC cannot be more than a .04.

If your car had mechanical problems, that could provide the officer with a reason to pull the car over. However, certain mechanical problems may be able to help explain what the officer says was "poor" driving. For instance, if your tires were nearly flat, that might explain "weaving".

You indicated that you have health problems. Certain health conditions, such as hypoglycemia, may explain a high blow on a breathalyzer machine. Other health conditions, such as a recent knee operation, may explain poor performance on a Standardized Field Sobriety Test such as the One Legged Stand.

You indicated you did not answer any pre-arrest questions. If so, you potentially have a strong case since you made no admissions about possible drinking, or about where you were coming from. In addition, if you didn't say anything, and the officer or witnesses did not observe you driving the vehicle, your case is possibly even stronger.

Officers will frequently say they smelled a strong or moderate odor of alcohol, her slurred speech, or saw red glassy eyes. These are not indicators of impairment, and an effective lawyer may be able to beat your DWI charge by showing that there are many reasons why someone might have slurred speech or red, glassy eyes. In addition, the National Highway Traffic Safety Administration (NHTSA) has said that the odor of alcohol indicates the presence of alcohol, but not impairment.

You indicated you performed no field sobriety tests. If you did no field sobriety tests, then your case may be strong. You are not required to perform field sobriety tests. It is always a mistake to perform them, because they are meant to trick you up.

The Horizontal Gaze Nystagmus (HGN) test is an attempt to detect involuntary jerking of the eyes which officers will claim is caused by alcohol (or other Central Nervous System depressants). HGN is a technical test, and many officers do not perform it properly. An effective lawyer may be able to show how it was improperly performed. In addition, other environmental conditions (strobe lights, vehicles moving swiftly down a road) or medical conditions (head trauma, advanced age) may cause symptoms that an officer may believe is HGN.

The Walk and Turn test is the second of the National Highway Traffic Safety Administration's (NHTSA) SFST battery. It requires the person to walk 9 steps, execute a turn, and take 9 steps back to the starting point. Officers usually do not properly explain this test, and that confusion can cause a poor performance. An effective DWI lawyer will be able to show the Court how the test was improperly explained. In addition, if the ground was uneven, or the footwear was bad (flipflops, high heels, etc.), your lawyer may be able to explain that the poor performance was due to those conditions, and not impairment.

The One Legged Stand is the third of the three NHTSA Standardized Field Sobriety Tests. It is the least reliable, mostly because people who have poor balance tend to perform badly on it. Your lawyer may be able to show that when you put your foot down, or swayed, it was because you're just naturally unbalanced, rather than impaired. In addition, if you recently had a knee injury, or your footwear or the ground was not ideal, your poor performance may be the result of the bad conditions.

Sometimes officers have drivers perform Field Sobriety Tests that are not validated or scientifically reliable. These tests have not been shown to determine whether someone is impaired, and there is no reason for their use. Your lawyer may be to show that these tests are simply made up by the officer for no good purpose other than to trip you up.

You indicated that you were offered and took a Portable Breath Test (handheld breath test at the scene.) Many people do submit to that test. If you did, the test may only be used to show that there was the presence (or lack of presence) of alcohol. In other words, the officer is not allowed to say at trial what number you registered on the PBT. Your lawyer may be able to keep out the PBT result by showing that the officer failed to comply with the Forensic Tests for Alcohol Branch (FTAB) regulations about the PBT.

You indicated that you were not offered or did not take a Portable Breath Test (handheld breath test at the scene.) You've put yourself in a better position. A PBT could be offered to show the presence of alcohol, and therefore justify your arrest. If you refused to take the PBT or were not offered the PBT, then the police officer has less evidence to show that you were impaired.

If you were not informed about your Implied Consent rights, then the police may have violated your statutory rights. The result would be the exclusion of the breath or blood results taken pursuant to North Carolina's Implied Consent laws.

If you decided not to have a witness, you missed an opportunity to have someone observe the testing conditions. Don't beat yourself up. Most people choose not to have a witness.

If you had a witness present during your breathalyzer or blood draw, that person may be able to testify about either problems in the administration of the test, or your condition. Tell your lawyer about your witness. Your lawyer may wish to talk to your witness to find out whether you were really as impaired as the officer says you were.

If you called a witness and the witness arrived in time, but was prevented from seeing the blow or blood draw, you may have a very good argument to keep out the results of the blow. The State must allow your witness to observe the chemical analysis if the witness arrives that the jail or police station in time.

If you could not reach a witness or you called the witness and the witness could not reach you in time, then the State has probably complied with its statutory obligations. However, if you requested a witness, and the officer did not wait the required 30 minutes upon informing you of your rights for the witness to arrive, you potentially have an issue for your lawyer to raise.

You indicated that you refused to blow or you were marked as a refusal. You may have strengthened your case especially the State did not conduct a blood draw. The refusal may make it difficult for the State to prove impairment, particularly if you did well on your Field Sobriety Tests. The bad news is that the DMV will notify you usually within 90 days of your arrest that your refusal means your license will be revoked for a year even if you are found not guilty of the DWI. Contact a lawyer as soon as possible because you may be able to fight this Refusal Suspension. A refusal suspension means that you may not drive at all of the first 6 months of the year-long suspension.

You indicated that you blew into the breathalyzer machine (Intox EC/IR II). The result may be admissible in court if the State can show that the breath result was obtained by a licensed chemical analysis, on a properly maintained machine, and that the test was administered according to North Carolina regulations. Even where the blow was above .08, it may be possible to win your DWI based on all of the facts of your case. If the result was below a .08, the breath result may actually help you beat a DWI, although the State will probably still argue that you were impaired.

If there is no breath result and no blood was taken in your case, your case may be very strong. That's because the State wins most of its DWI cases when it has a BAC of .08 or above from breath or blood results.

You indicated that blood was taken from you. The State will need to show that either the blood was taken as a result of the implied consent laws, as a result of a search warrant, or as a result of an emergency situation (where you were in the hospital or unconscious). In most cases, the blood is sent to the State Bureau of Investigation. A blood case may take months, especially given the SBI's current backlog of cases. A blood case may be a better case because there are lots of potential avenues for your lawyer to attack the results of an SBI blood analysis.

If your BAC was under .15, you will not be required to have an Interlock device on your car. The lower the BAC, the better your case will be because your attorney may be able to argue you were not impaired at the time of the driving.

A BAC of .15 or more will likely mean that, if you are convicted, you will be required to have an Interlock device on your vehicle for an entire year. In addition, a BAC of .15 or more means that, in most cases, you will be unable to drive at all for the first 45 days following conviction. There may be ways to avoid the 45 no-drive period. In addition, there may be ways to suppress the BAC result, even if you are found guilty.

If you simply do not know your BAC, but a breath test was conducted, your lawyer will be able to get your results at the first court hearing. If blood was drawn, the results will be sent to your attorney sometime within, typically, a 6 to 9 month period.

If you were held for an extended period of time, and not given the right to call witnesses to the jail to observe you, you may have a potential issue called a Ferguson/Knoll issue. These are highly technical areas of DWI law, and you should talk to a lawyer about them.

Sentencing Issues

No one wants to be convicted of a DWI. This section deals with DWI sentencing rules in North Carolina. If you've been charged with a Driving After Consuming Under 21 (Baby DWI), talk to a lawyer about those consequences.

You indicated that you have no grossly aggravating factors. If there are no grossly aggravating factors in your case, then you will avoid the harshest punishments - Aggravated Level One (A1), Level 1, and Level 2. You will be sentenced as a Level 3, 4, or 5. Level 5 is the most lenient punishment level, with the standard punishment being 24 hours of community service, approximately $500 in costs and fines, a suspended license for one year (with a possible Limited Driving Privilege), and required substance abuse treatment. Level 4 is somewhat worse, but generally also avoids jail. Level 3 is worse than Level 4, with the possibility of a few days of jail time in egregious cases.

You indicated that you may have at least one grossly aggravating factor. If convicted with one grossly aggravating factor, you must spend at least 7 days (up to a year) in jail, although in certain cases you may be able to off-set the jail time through in-patient intensive substance abuse treatment. If convicted with two grossly aggravating factors, you must spend at least 30 days (up to 2 years) in jail. If convicted with three or more grossly aggravating factors, you must spend at least 120 days (up to 3 years) in jail.

You indicated that you had a minor (under the age of 18) in your car at the time of your DWI. If convicted, you must be sentenced as a Level 1, which requires at least 30 days in jail with the possibility of up to 2 years in prison. If there were additional grossly aggravating factors, you may be eligible for an Aggravated Level One punishment of up to 3 years in prison.

You indicated that you may have one or more aggravating factors in your case. Assuming no grossly aggravating factors in your case, if convicted you may face a Level 4 or Level 3 punishment which involves more community service, even possible jail time, and enhanced fines. You should talk to your lawyer about ways to minimize the impact of these aggravating factors in your case.

You indicated that you registered a BAC of .15 or more. This is an aggravating factor that could mean enhanced punishments (Level 4 or Level 3) assuming no grossly aggravating factors exist in your case. In addition, you will be required to have an Interlock device in your car for one year before being validly licensed in North Carolina again. Finally, if convicted, you will face a 45 day period where no Limited Driving Privilege - and, therefore, no driving - is permitted at all. This period takes effect immediately upon conviction.

You indicated that you have potential mitigating factors in your DWI case. If convicted, these mitigating factors will be used by your lawyer to argue that you should be sentenced in the lowest possible level: Level 5. Level 5 still requires a one-year license revocation (with possible Limited Driving Privileges), as well as fines, community service, substance abuse treatment, and insurance cost increases of up to 400 percent.

Tell Us A Little about the DWI Stop

Chemical Analysis and Post Arrest Issues

Sentencing Issues

Getting Your Driving Privileges Restored