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North Carolina is probably the harshest in the country when it comes to Driving While Impaired prosecutions. The result is a court system, especially in Wake County, that is inundated with DWI cases. If you’ve been charged with drunk driving, you need a lawyer who is familiar not just with general criminal defense, but with the specific science, machines, tests, and procedures relevant in a DWI prosecution.
While we will focus in this article on the general DWI offense (N.C.G.S. § 20-138.1), North Carolina has a number of different impaired driving offenses, also known as implied consent offenses. We’ve posted a fairly complete list of various North Carolina alcohol and driving related offenses.
At the most severe, these laws include felony death by motor vehicle and felony serious injury by motor vehicle. Indeed, in certain circumstances, the Wake County District Attorney has charged suspects with Second Degree Murder in impaired driving offenses that have resulted in the death of a victim.
Drivers of commercial vehicles face special restrictions, even if they are caught driving under the influence in a non-commercial vehicle. Pilots licensed by the FAA may face suspension or revocation of their pilots certification. And underage drinkers can be charged with driving after consuming while being under 21 years of age, a class two misdemeanor that has a zero-tolerance provision where any amount of alcohol triggers a violation.
In most cases, however, a person charged in North Carolina with an impaired driving offense will be charged under N.C.G.S. § 20-138.1 and potentially sentenced under N.C.G.S. § 20-179. These, and a number of other procedural laws, govern the prosecution of the basic drunk driving offense.
In most cases, upon being charged with a DWI, the officer will seize the driver’s license, whether it is a North Carolina or out-of-state license, and turn that license over to the magistrate to be included in the court file.
If the license has been seized, the person can either request a hearing to contest the civil revocation, or can petition the court for a limited driving privilege. In most cases, the full driving privilege will be restored 30 days after the DWI arrest.
In cases involving a refusal to supply a chemical sample, the person may face an additional revocation period. It’s important to be on the lookout for a letter from the North Carolina Division of Motor Vehicles informing you of your right to a refusal hearing.
In a standard DWI case, a person will face a second, year-long suspension of his driving privilege if he is convicted of a DWI. During that period, the person may be eligible for a limited driving privilege to drive to and from work and, in some cases, for household related purposes.
In some cases, the license suspension can be longer, especially where the person has been convicted of multiple DWI offenses.
Winning a DWI case depends on a number of factors, including the reason why the vehicle was stopped or police came to the scene, any admissions made by the driver, any statements made by witnesses, performance on Standardized Field Sobriety Tests, and the results of any breathalyzer or blood tests.
Most DWI cases turn on the question of whether the stop of the car was valid, or whether the arrest was valid. Your lawyer, after reviewing the case, may file a “reasonable suspicion” or “probable cause” motion to challenge the stop or arrest. Your lawyer will argue that the officer lacked sufficient information to stop the car or, if the car was stopped validly, lacked sufficient information to arrest you.
In evaluating these legal questions, your lawyer may be able to obtain video of the stop and arrest, and will likely receive the DWI report and narrative created by the officer at the time of the offense. In addition, your lawyer may seek the opinion of an expert witness who may be called to testify at your trial in your defense.
Other cases, especially accident cases, involve questions of whether the police can prove that the person they suspect of being the driver was in fact the driver, and whether that person’s impairment is the result of drinking that occurred before or after the driving. In some cases, the police may not be able to prove that the impairment was the result of drinking that occurred before or during the driving.
Cases involving drugs, particularly cases where a Drug Recognition Expert has been called to the scene, can be especially strong cases for a defendant, because of the inherent unreliability of the DRE program.
There may be other issues related a DWI defense, including issues related to whether the driver was advised of his rights prior to blowing into the Intox EC/IR II machine, whether the driver was afforded an opportunity to have a witness observe the chemical analysis, and whether the driver was released from custody in a timely fashion to allow the gathering of evidence in his defense.
In some jurisdictions, a DWI charge is reduced to a lesser charge such as a Careless and Reckless. The bad news is that this is rarely the case in North Carolina, and especially rare in Wake County. Only in the weakest of cases will the prosecutor offer a plea to a lesser crime.
While in some jurisdictions there may be programs whereby a person can avoid a conviction for a DWI, in Wake County there is no such program. In almost all cases, the defendant is required to either plead guilty, or go to trial (or a motions hearing) in a Driving While Impaired offense.
The only way to avoid a license suspension in a North Carolina DWI is to win the case, and even in those cases a suspension may be inevitable where there has been a refusal.
The North Carolina General Assembly has removed driver licensing authority from prosecutors and judges and placed it exclusively in the hands of the North Carolina Division of Motor Vehicles. Even if the judge, following a conviction, orders that the license be returned to the convicted driver, the DMV will ignore such an order.
If convicted, the license will be suspended for at least a year.
You should talk to your lawyer about the potential impact of a DWI charge to your job or employment. In some cases, you may be required to report the DWI charge or arrest to your employer or licensing agency. Whether or not you are required to report a DWI will be depend upon your employment contract, or the employer’s polices, or the polices or regulations of the licensing board.
In addition, you may ultimately need to tell your employer of the charge or conviction if your employment involves driving in a company-owned vehicle. If convicted, you may wish to have extended privileges to allow you to drive to and from work during non-standard hours; such a request will likely require that you get a letter from your employer asking the court to grant you extended driving privileges.
If your DWI offense is a first time offense, and if there was no accident, serious injury, or death, and if there was no person in the car under the age of 18, then it is unlikely that you will be sentenced to jail. If convicted, you will likely be ordered to complete at least 24 hours of community service.
However, if this DWI is not the first offense, or if there was a serious injury or death, or if there was a minor in the car, you may very well face at least some time in jail. While every DWI case is serious, these cases are among the most serious because of the potential impact to your freedom and your driver license.
On the one hand, a DWI is a serious offense involving serious consequences. On the other hand, a DWI, unfortunately, is among the most common criminal offenses in the United States. A single DWI followed by an otherwise exemplary record is unlikely to have extremely severe consequences, although the DWI may affect your ability to pursue certain professions, or may require you to provide extensive explanations if you apply for certain kinds of licenses.
Subsequent DWI convictions can have a much more dramatic effect, resulting in extensive loss of license, substantial jail time, and even continuous alcohol monitoring.
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