A driving while impaired (DWI) charge is a serious allegation, including large fines, community service requirements, a suspended license, possible jail time, and even, in certain cases, felony charges.
Since 2006, DWI cases have become increasingly complicated, with almost-yearly changes in the law, complex sentencing and evidentiary rules, and frequent appellate rulings. Defense attorneys and prosecutors often say that DWI cases are among the most intricate and difficult, requiring constant study and preparation.
Viable defenses include technical challenges to the law and the application of the law as it applies to detention, the availability of witnesses at the time of the breathalyzer tests, and the explanation of rights. From the vehicle stop to the release from jail, issues can arise in a case that may very well result in a successful outcome.
In addition in September 2016, Wake County instituted a DWI scheduling system designed to streamline the processing of drunk driving offenses through the court system. While the proverbial jury is still out on whether the system will in fact make the court system more efficient, an aggressive DWI lawyer should know how to manage the case from beginning to end to secure a successful outcome either by defending the case at trial, or by winning the case at a hearing, or by demanding that the client's case be appropriately handled under Wake County's local rules.
Drivers who lack skilled representation can sometimes find their licenses indefinitely suspended, their cases botched, and defenses abandoned.
Serious consequences can affect a driver's ability to drive, his or her freedom, and insurance rates years after the offense date.
Why Fight a DWI?
Alcohol is an important factor in traffic accidents, and deaths resulting from such accidents. In 2014, just over 9,900 people were killed nationwide in alcohol-related accidents. These accidents included single-car crashes resulting in the death of the allegedly drunk driver. The consequences of DWI convictions vary state by state but almost always involve fines and a jail sentence. There are many reasons to fight a DWI:
- Keeping your insurance rates down
- Maintaining a clean driving record
- Avoiding a criminal conviction that, in North Carolina, can never be expunged
- Prevent the need to install an Interlock machine in your car
- Avoiding the professional and personal embarrassment
- Preserving your freedom
North Carolina DWI prosecutors mean business. The total cost of a first time DWI conviction, excluding the cost of the lawyer, can reach $5,000, including increased insurance rates, the reputational effects of the conviction, court fines, treatment, Interlock devices, DMV fees, and related costs.
Keep in mind that it is not illegal, unless you are under the age of 21, to drink and drive a passenger vehicle in North Carolina. Driving a car with an alcohol concentration of 0.08 or above or with a sufficient amount of alcohol to lose the normal control of your mental or bodily faculties is illegal. If you believe there are some issues with your DWI charge and you don’t want a DWI conviction on your record, contact an experienced DWI attorney and fight your case.
Defending a DWI
As with any criminal charge, the State of North Carolina can only convicted you if it proves the case beyond a reasonable doubt. You are presumed innocent until that burden has been reached. Each element must be proved - the driving (or operation), upon a road, highway, or in a parking lot, and while subject to an impairing substance. In many DWIs, the issue is whether the driver was impaired.
In order to prove the case, the State must show guilt through the admission of competent evidence at trial. Competent evidence is evidence that meets the Rules of Evidence, and that was collected constitutionally and in compliance with North Carolina regulations and statutes. Evidence that has been obtained illegally, or that does not meet the foundational requirements under the Rules of Evidence cannot be used to convict.
Any reasonable doubt means a "not guilty." In addition, in North Carolina in most cases a person has two chances to be found guilty at trial: once in District Court before a judge (called a "bench trial") and once in Superior Court before either a judge or a jury (at the client's option). In addition to trials, a successful defense may turn on a suppression hearing, or a hearing at which a judge makes a preliminary ruling as a matter of law on the admissibility of certain evidence.
Key issues in a DWI case include:
- Illegal stop of a car or defendant. A police officer must have "reasonable suspicion" to support the stop or detention of a person. If the Court rules that the police officer detained the individual or stopped the vehicle without having adequate facts to justify the stop, the Court will suppress or keep out any evidence following the stop or detention from trial. The suppression of this evidence means that the case will be dismissed and effectively the person will be found "not guilty."
- Unconstitutional arrest of the individual. A police officer may only arrest a person based on "probable cause" (a higher standard) that the person was in the process of committing a crime. Probable cause is the good faith belief by the officer that the person was probably committing a crime. The police officer can use any sights, sounds, or statements, and witness statements, to decide whether to arrest. If the police officer lacked probable cause to arrest, the case will be dismissed and you will win your DWI.
- Poorly conducted field sobriety tests. Police, like anyone, are human beings. Some are poorly trained. And like all human beings, sometimes police make mistakes. When police make mistakes in conducting the field sobriety tests - One Legged Stand, Walk and Turn, and Horizontal Gaze Nystagmus tests - a good DWI defense lawyer can take advantage of these mistakes to show that the driver did not have a fair shot to show he was not impaired. A court can rule that there was insufficient evidence, either to find probable cause, or at trial to prove guilt.
- Invalid or non-standardized field tests. Sometimes police officers use unscientific tests to determine whether a person may have been drinking. In particular, the North Carolina State Highway Patrol is notorious for having troopers who conduct invalid tests. Recognizing these tests, and debunking their validity can lead to a win in a DWI case.
- Improper seizure of the car. In certain cases where there has been a seizure of a car, a person can have a "double jeopardy" protection against a DWI conviction. The United States constitution says that you cannot be twice put in jeopardy of a conviction. If you've been punished once - through the improper seizure of your car - the state may be prevented from punishing you again with a conviction for a DWI.
- Misleading officer reports. Officers are usually trained to make accurate reports. But sometimes those reports differ from the video that is often produced during a DWI stop and investigation. If the video shows generally good performance on the SFSTs and good driving, a person may have a very good defense against a DWI.
- Contrary evidence from witnesses. Sometimes witnesses have different recollections from officers. A witness may believe that you were actually steady on your feet, didn't smell like alcohol, and looked sober. North Carolina law allows you to call a witness to observe the breathalyzer test that is used in court. If your witness is credible in court, a judge may believe your witness over the police officer's recollections. If you are denied the opportunity to have a witness come watch you blow into the breathalyzer, you may have a very good defense to your DWI.
- Other reasons for your conduct. Medical conditions, mental health episodes, recent injuries, or weight, or evidence of a recent car accident can explain certain behavior that might otherwise appear to be evidence of impairment. Medical records related to these conditions or injuries may be particularly helpful to defend you in a driving while impaired case.
We have a proven track record of defending and winning even the toughest DWI cases. We try a large percentage of our cases because we know that in Wake County the District Attorney rarely dismisses DWIs without a fight.
A DWI trial in North Carolina in general and Raleigh in particular is not for the faint of heart. It is an arduous process requiring a skilled lawyer who knows how to mount the most compelling defenses. We encourage our clients to:
- Work closely with us provide us the needed information to secure a good outcome. We meet with our clients early in the case to gather information and to fully discuss the process. Then we request the police reports, video (if recorded), and other court records relating to the arrest. We share everything with our clients, and arrange additional meetings to fully discuss the evidence.
- Visiting the Scene/Employing Experts. Where information about the scene of the arrest is important, we visit the scene (often with the client) so that we can understand the exact dimensions of the area where the stop occurred, and the sobriety tests were conducted. We also sometimes recommend proven experts in DWI defense who can help us challenge the validity of the tests that were performed on the street and at the police station or detention center.
- Interview eye witnesses. Witnesses sometimes can provide crucial information for a client. We interview witnesses to gather favorable evidence, and to understand what the witnesses might also say against our clients.
- File motions. We file standard and non-standard motions in your case as necessary to make sure we meet all court deadlines, to preserve your rights, and to raise possible defenses. Sometimes even the best DWI lawyer doesn't know whether a motion will be successful until the day of court. Filing comprehensive motions is the best way to exhaust all possible and viable defenses.
- Testify at Trial. In certain cases, it is advisable for clients to present their side of the story at trial. We have a detailed and private discussion about whether your testimony would be helpful. While you are never required to testify in your defense, your testimony may show the judge that there is an alternate explanation for what might appear to be alcohol impairment.
- Fighting Drug-Related DWIs. Drug-related DWIs are their own special category. We challenge the admissibility of blood tests, the reliability of the testing procedures, and whether or not the quantity of drugs found in the system could've resulted in the observed impairment. For most drugs, North Carolina has no legal limit beyond which a DWI charge has been proved.
Sentencing in a DWI case
In North Carolina, G.S. 20-179 establishes six levels - Aggravated Level One through Level 5 - of punishment for DWI offenses committed December 1, 2011, or later. These levels of punishment are determined by the presence of aggravating factors, grossly aggravating factors, and mitigating factors. These factors include:
Grossly Aggravating Factors:
- A prior conviction involving impaired driving within 7 years of date of offense.
- Driving while license revoked for an impaired driving revocation.
- Serious injury to another person caused by defendant’s impaired driving.
- Driving while a child, person with the mental capacity of a child, or disabled person was in the vehicle.
- Gross impairment or a BAC of 0.15 or more.
- Especially reckless or dangerous driving.
- Negligent driving leading to a reportable accident.
- Driver’s license was revoked.
- A specified conviction record of driving history.
- Speeding while fleeing or attempting to elude apprehension.
- Speeding by at least 30 mph over the legal limit.
- Passing a stopped school bus.
- Any other factor that aggravates the seriousness of the offense.
- Alcohol concentration did not exceed 0.09 and impairment solely from alcohol.
- Slight impairment of the defendant’s faculties with no chemical analysis available.
- Driving at the time of the offense was otherwise safe and lawful.
- A safe driving record.
- Impairment caused by a lawfully prescribed drug taken within the prescribed dosage.
- Voluntary submission to a substance abuse assessment and treatment.
- Completion of substance abuse assessment, compliance with recommendations, and 60 days of Continuous Alcohol Monitoring.
- Any other factor that mitigates the seriousness of the offense.
As much as no one wants to be convicted of a DWI offense, it happens. A good lawyer will develop a good sentencing argument, and prepare a client so that he is ready to put the best argument before a judge for as lenient punishment as possible. By developing good "mitigating factors" or "gold stars," we hope to avoid the worst consequences in the event that we are not successful in winning a DWI.
We have a proven track record of winning DWIs, and a track record of fully preparing clients to present the best possible sentencing arguments to a judge to prevent the truly bad consequences from being imposed.