Arguments to Beat a DWI Charge in NC – Entitlement to a Witness For Your Breathalyzer Test – The Ferguson Motion

In North Carolina, DWI defendants have a number of constitutional and statutory rights to ensure that they are treated fairly and that the government follows required rules and regulations. Sometimes, when these rules aren’t followed by the arresting officer or others involved in the DWI process, a better outcome can be received for a DWI client, at times up to and including case dismissal.

This article will focus on what is called the Ferguson Motion, based on a case from 1988 of North Carolina v. Walter Ferguson. North Carolina requires that DWI defendants be offered the right to a witness to observe the breathalyzer blow that is performed at the police station. Law enforcement must provide a defendant the opportunity to call a witness and must provide reasonable time for that witness to arrive. As a defendant, you have the right to waive that right, in which case you will sign a document stating that you do not want a witness. Otherwise, you should be given access to a phone to call a witness and 30 minutes for the witness to arrive. If you are denied the right to a witness, this becomes an issue in your case that can be argued.

If you are denied a witness, it does not matter what you blow on the breathalyzer. It could be a 0.04, 0.08 or 0.20. You are still entitled to a witness. However, if you call a witness and it takes 2 hours for the witness to arrive, you have lost that right. The rule is 30 minutes.

If you were denied a witness, what does that mean for your case? First, your attorney will ask for a hearing based on a Ferguson Motion, in which he’ll argue that you were denied your right to a witness and therefore, the blow should be thrown out. A DWI case is based on many different facts, including the breathalyzer test, field sobriety tests, and quality of driving (or lack thereof). If the Ferguson Motion is won, the breathalyzer results will be suppressed and cannot be used as evidence in your case. If the breathalyzer is suppressed, the District Attorney or judge can decide to dismiss the case, or can decide to proceed with trying the case based on the other evidence.

For example, if the breathalyzer is 0.15 but is thrown out, but the driving and field sobriety tests were very bad and there were empty alcohol bottles in the car, there may be enough evidence to convict even without the blow. In a case where the Blood Alcohol Content (BAC) is 0.15 or over, winning a Ferguson Motion is still extremely meaningful, even if you are ultimately convicted of the DWI. This is because in North Carolina, if you are convicted of a DWI with a BAC of 0.15 or over, there are additional sentencing consequences that are imposed. In any DWI conviction, your license is suspended for at least one year upon conviction. But with a BAC of 0.15 or over, there are 45 days following conviction where you cannot drive at all. After the 45 days, you can drive Monday through Friday 6 am to 8 pm for work related purposes only. No going to the grocery store or out to dinner. In addition, you are required to have an interlock device on your car for 1 year. This is an additional cost of around $1400. If a Ferguson Motion is won on a BAC of 0.15 or over and you are still convicted, it means that you do not have to suffer the 45 days of no driving, you are not required to have an interlock device on your vehicle, and you can drive during limited hours for work AND household related purposes. This is a vast improvement.

Obviously the best case scenario is that when a Ferguson Motion is won, that the case is dismissed or you are found not guilty in trial, but regardless, a victorious Ferguson Motion can only help you.

In recent Chetson Firm cases, a client called a witness and the witness arrived to the lobby of the detention center within 30 minutes but was denied access to the intox room to witness the blow. This case is now in Superior Court and various records are being used to prove that calls were made and the witness arrived within the 30 minute window. If the witness is at the detention center within 30 minutes, they must be granted access to witness the blow. In another case, our client attempted to call a family member that lived in Wake County but who had no house phone and only a cell phone that was not a 919 number. She was denied the ability to make a call if it was not to a 919 number. This case will also be challenged with a Ferguson Motion, being that it is not uncommon for people to only have cell phones and for those cell phones to have out of state area codes. Especially in North Carolina, with it’s tremendous influx and outflux of people with all of the universities, technology and medical jobs, this is a concerning issue.

If you were charged with a DWI in Raleigh, NC and you were denied the right to a witness for your breathalyzer blow, contact The Chetson Firm for aggressive Ferguson Motion representation.

Damon Chetson

Damon Chetson is a Board Certified Specialist in State and Federal Criminal Law. He represents people charged with serious and minor offenses in Raleigh, Wake County, and the Eastern District of North Carolina. Call (919) 352-9411.