Frequently Asked Questions in DWIs

1. My license was seized by the officer, or revoked. How can I get my driving privileges?
2. My license was revoked by the officer. When will my driving license be restored?
3. How long will my case take to resolve?
4. What is an "alcohol assessment" and why should I get one?
5. My alcohol assessment recommends that I take additional classes. Should I do that?
6. When I was stopped, I blew below a .08 on the breathalyzer machine. Will I still face charges, and can I be convicted of a DWI even though I blew below a .08?
7. What if I blew above a .08? Am I automatically going to be convicted?
8. I've heard that breathalyzer machines are bogus and not reliable. Is there any way to challenge their reliability?
9. I was charged with additional crimes at the time of my arrest? How will these affect my DWI case?
10. What are the consequences of a DWI conviction?
11. What are aggravating and mitigating factors?
12. What are grossly aggravating factors?
13. What if I'm convicted of a DWI? Will I be prevented from driving for an entire year?
14. How will a DWI conviction affect my insurance rates?
15. What is the process in the court system?
16. I've heard Wake County is a tough county for DWI defendants. Is this true?
17. How can I schedule a free consultation with you?


1. My license was seized by the officer, or revoked. How can I get my driving privileges?

In most cases, your license is revoked for a thirty (30) day period following a DWI arrest. In many cases, you can have a restoration of Limited Driving Privileges (LDP)after just ten (10) days. You will need to undergo an alcohol assessment, provide proof of current insurance (DL-123 form), provide your seven (7) year driving history. We can complete the petition we will file on your behalf asking the court for these privileges.

Normally the court will grant you driving privileges from 6 a.m. until 8 p.m. If you work earlier or later than those times, the court will usually extend those hours if we provide the court with a letter from your employer or an affidavit in cases of self-employment.

We can make the appearance in court for you so you do not have to take time from your busy life to get your LDP.

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2. My license was revoked by the officer. When will my driving license be restored?

If you apply for limited driving privileges (LDP), your license will be restored as soon as ten (10) days after your DWI stop.

If you decide not to apply for an LDP, in most cases you will get your license back thirty (30) days after the DWI stop. You will need to pay $100 fee to the DMV for this restoration.

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3. How long will my case take to resolve?

You were probably given a court date three or four weeks from the date you were charged with the DWI offense.  Under current Wake County rules, the initial court date will simply include an advisement of certain rights, the appearance or appointment of counsel, and a new court date set about two months in the future.

If you plan to take your case to trial or a hearing, your case will take somewhere between 6 and 12 months in Wake County, and short durations in other counties.  Wake County has a heavy docket of DWI cases winding its way through the court system at any one time.  It is simply impossible with just 19 judges to handle the volume of DWIs in Wake County in an expeditious fashion.

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4. What is an alcohol assessment and why should I get one?

An alcohol assessment is an hour-long evaluation provided by a private agency approved by the state of North Carolina. They'll ask you questions about how frequently you drink, how much you drink, and other behavioral issues.

Ultimately the agency will make a recommendation to you about further treatment, if any, you should undergo. A typical first time DWI will result in a 16 hour Alcohol Drug Education Traffic School (ADETS), or a 20- or 40- hour group class.

If you want to restore your limited driving privileges during the thirty (30) day initial suspension, you must provide an alcohol assessment and show proof of enrollment in the class to the court.

In addition, an alcohol assessment is also valuable if you later plead guilty or are convicted of a DWI.

An alcohol assessment will cost $100.  See our list of reputable DWI assessing agencies.

Assessing agencies are very familiar with The Chetson Firm and will send us a copy of your assessment. If you hire us, our fax number is (919) 249-1396.

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5. My alcohol assessment recommends that I take additional classes. Should I do that?

If you wish the Court to issue you a Limited Driving Privilege (LDP), you will need to show proof of enrollment.

In addition, if you end up pleading guilty or being found guilty by a judge or a jury, the fact that you have completed any recommended alcohol treatment programs will make a difference to the judge who must sentence you following conviction.

Therefore, if you can afford to take those classes, you should do so. The 20-hour class that is most often recommended costs between $400 and $500, and involves classes on the weekends or in the evenings. You can work those classes into your schedule.

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6. When I was stopped, I blew below a .08 on the breathalyzer machine. Will I still face charges, and can I be convicted of a DWI even though I blew below a .08?

Yes. We've seen  cases that involve a breathalyzer result of .07 or below. In fact, there are occasionally cases where the person blew a .00. Why?

First, the Wake County District Attorney is very slow to dismiss any DWI charges initiated by the police. As a result, even where there is a weak case, the District Attorney will still move forward with prosecution, hoping that the person will plead guilty.

These cases are frustrating, but if you blow below a .08, you have a reasonable - possibly even an excellent chance - of being found not-guilty by a judge or jury.

Second, in some cases where other substances - marijuana or other drugs or prescribed medicine - are suspected, the prosecutor will argue that a .07 or below merely shows that the person wasn't drunk on alcohol. The prosecutor will argue that the person could've been high on pot or some other drug or medicine.

Third, the DA will sometimes argue that the Blood Alcohol Concentration (BAC) level of .07 was lower because you were tested a half hour after the stop. The DA will argue that the BAC was probably above a .08 at the time of the stop.

Finally, North Carolina law specifically allows the DA to prove you were impaired in one of two ways. Either the DA can prove you had a BAC of .08 or higher. Or the DA can prove that you were "appreciably impaired" at the time you were driving. Proof of appreciable impairment could include any observations made by police or witnesses: for instance, maybe the car swerved a lot, maybe you slurred your words while talking at the stop, maybe he smelled alcohol, or maybe you made statements that indicated you were appreciably impaired.

In reality, if you did blow below a .08, your case is much stronger, in large part because many juries will not convict if they believe your BAC did not exceed the legal limit.

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7. What if I blew above a .08? Am I automatically going to be convicted?

Not necessarily. Obviously, the higher you blow, the tougher your case may be to win. But these are cases that really demand a good DWI attorney.

In the United States, police are not allowed to - or should not be allowed to - stop people at random and arrest them for DWIs. If the police did not have some suspicion that allowed them to stop your car, the entire stop may have been unconstitutional, and the whole case could be thrown out.

Second, there may be reasons to suspect that the breathalyzer exam was conducted improperly, or by an officer who had not taken up-to-date certification classes. In these cases, the results of the exam may be inadmissible, and therefore the defendant will likely be found not-guilty.

Third, there may be reasons to believe that the breathalyzer exam read a higher-than-proper result.

Fourth, you may have consumed your last drink immediately before getting into the car. If that was the case, the breathalyzer exam, conducted thirty (30) minutes after your stop may give a higher reading than you had at the time of your stop.

There are other reasons to explain a high BAC reading, and other ways to challenge a breathalyzer that was improperly given or given without you being informed of your rights.

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8. I've heard that breathalyzer machines are bogus and not reliable. Is there any way to challenge their reliability?

It's true. Breathalyzer machines are not always accurate. The problem is that North Carolina is one of the few states that prohibits defense attorneys from challenging the scientific reliability of breathalyzer machines. Until the state's Supreme Court changes its mind, there's little chance that any court will accept a scientific challenge to the machine.

On a positive note, many courts around the country are beginning to realize just who faulty and unreliable these breathalyzer machines. The bad news is that change will probably be slow in coming to North Carolina, and too late to help in your case.

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9. I was charged with additional crimes at the time of my arrest? How will these affect my DWI case?

The good news is that, if you ever decide to plead guilty to the charge, most Wake County District Attorneys will dismiss those other charges as part of the plea deal.

The bad news is that a DWI charge is more serious than a simple drug possession charge, or an "open container" charge. And so while you should be concerned about other criminal charges or infractions, you shouldn't let those charges cloud your thinking about the DWI.

We always focus on the case - assuming there aren't other very serious crimes charged - with the idea that if we tackle the DWI charge, other charges can be handled at the same time.

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10. What are the consequences of a DWI conviction?

If you've been charged with Driving While Impaired (N.C.G.S 20-138.1) and you are convicted by a judge or a jury or plead guilty to those charges, you are eligible for one (1) of five (5) levels of punishment.

Level 5 is the most lenient level. If the "mitigating" (positive) factors substantially outweigh the "aggravating" (negative) factors in your case, you will be sentenced to a Level 5 punishment, which involves at least 24 hours of community service (or 24 hours in jail), fines of up to $200, costs, and a one-year suspension of your driver's license. Jail is very rarely imposed, so don't worry about serving jail time.

Level 4 will be imposed if the "mitigating" (positive) factors balance out the "aggravating" (negative) factors in your case. You will be sentenced to at least 48 hours of community service (or jail time) to be completed within 60 days of conviction, a fine of up to $500, costs, and suspension of your license for a year. Again, jail time is rarely imposed.

Level 3 will be imposed if the "aggravating" (negative) factors substantially outweigh the "mitigating" (positive) factors in your case. You will be eligible for 72 hours of community service (or jail time) to be completed within 90 days of conviction, a fine of up to $1,000, and suspension of your license for a year. Again, jail time is rarely imposed.

Level 2 will be imposed if there is one grossly aggravating factor in your case. In this case, you will serve at least 7 days of jail time, and as much as 12 months. These are fairly severe cases. In addition, fines of up to $2,000 will be imposed, in addition to costs.

Level 1 will be imposed if there are two grossly aggravating factors in your case, or if a minor was present in the car at the time of the alleged impaired driving. In this case, you will serve at least 30 days in jail, and possibly up to 24 months, in addition to up to $4,000 in fines, plus costs.

Level A1 will be imposed if there are three or more aggravating factors in your case.  In this case, you will serve at least 120 days in jail, and possibly up to 36 months in prison.  In addition, the court can imposed up to $10,000 in fines. With the possible exception of Misdemeanor Sexual Battery, this is the most severe misdemeanor on the books in North Carolina.

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11. What are aggravating and mitigating factors?

Think of mitigating factors as little "gold stars" and aggravating factors as little "sad faces." You want to have more "gold stars" than "sad faces" if you are ever convicted or plead guilty. That's because the judge will sentence you according to one of the five (5) levels described above. Being a "Level 5" DWI defendant is much better than being a "Level 3" defendant.

Aggravating factors include: 1) gross impairment (0.15 or more), 2) especially reckless or dangerous driving, 3) negligent driving leading to a reportable accident, 4) two or more prior convictions for 3-point driving offenses within the preceding 5 years before the offense, 5) conviction of a prior DWI more than 7 years before the instant offense, 6) conviction of speeding to elude apprehension, 7) conviction of speeding at least 30 miles over the legal limit, 8) passing a stopped school bus, or 9) any other factor that aggravates the seriousness of the offense.

Mitigating factors include: 1) slight impairment (0.09 or less), 2) safe and lawful driving at the time of the offense, 3) statutory safe driving record (no driving offenses for which at least 4 points are assigned within 5 years of date of offense), 4) impairment by lawfully prescribed drugs within prescribed dosage, 5) voluntary submission to DWI-alcohol assessment and participation in recommended treatment, or 6) any other factor that mitigates the seriousness of the offense (including, for some judges, “polite and cooperative”).

As you can see, getting an assessment and completing treatment prior to your appearance in court is a "mitigating factor" that can help offset any aggravating factors you may have in your case.

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12. What are grossly aggravating factors?

These are more serious factors that can put you in Level A1, Level 1, or Level 2 DWI sentencing grids. If a "grossly aggravating" factor is found by the judge, the judge will not weigh "mitigating" or "aggravating" factors, although these factors might help determine the severity of punishment as a Level A1, Level 1, or Level 2 defendant.

If you think a grossly aggravating factor is present in your case, you should talk to an attorney.

Grossly aggravating factors include: 1) a prior conviction within the preceding 7 years, 2) DWLR under NCGS §§ 20—27 and the revocation was for an impaired driving offense, 3) serious injury to another caused by the Defendant’s impaired driving.  Having a child under 16 years of age in the vehicle at the time of the offense results in an automatic Level 1 sentencing range.

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13. What if I'm convicted of a DWI? Will I be prevented from driving for an entire year?

The answer is it depends. In many cases, you will be eligible for Limited Driving Privileges (LDP), which is a determination made by the judge usually at the time of sentencing. The judge will usually permit you to have LDP in order to get from work or home, usually between the hours of 6 a.m. to 8 p.m.

If you need those hours extended, you can provide a letter from an employer or from your school if you're a student, that explains to the judge your need to drive later in the evening or earlier in the morning. In some cases, people convicted of DWIs may be given 24-hour a day LDP.

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14. How will a DWI conviction affect my insurance rates?

This is a question that only your insurance company can answer. A DWI conviction generally means 8 points on your insurance record. If you have a concern, you can talk to your insurance company about hypotheticals. But don't admit anything to an insurance agent.

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15. What is the process in the court system?

Generally, all misdemeanors - a standard DWI is a misdemeanor - start in District Court. There are no juries in District Court. Only judges. In addition, there is no "record" or stenographer in District Court.

If you are found not-guilty by a District Court judge, then your case is over. You're done. You don't have to pay any court costs or fines, no jail sentence, no community service. You can thank your attorney, and pay the final installment of his fees, if necessary!

If you are found guilty by a District Court judge, which is common in District Court trials, you have two options. You can accept the verdict, pay your fines, do your community service, and pay your costs.

Or you can appeal to Superior Court. Every defendant who is convicted in District Court has an automatic right of appeal to Superior Court.

In Superior Court you have the right to a jury trial. Defendants do much better in front of juries. That's because juries are made up of people like you. People who may have had a drink or two before driving. People who understand and are ready to forgive mistakes. And people who are more likely to be persuaded by a defense attorney's arguments than a judge who has "heard it all before."

Acquittal rates - not-guilty rates - are much higher in Superior Court. Only you can decide - with the advice of your attorney - whether to appeal a case to Superior Court.

If you're ultimately convicted in Superior Court, you face the same kinds of penalties that you would've gotten in District Court. The costs of Superior Court are a bit higher than District Court, but usually not a factor in deciding whether to appeal. Otherwise, you will face the same kinds of sentencing options - Level 5 to Level A1 - as described above.

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16. All of the fees and potential fines are expensive. How can I afford them all? Is a lawyer even necessary?

If you truly cannot afford to hire an attorney, you can request a Public Defender. Tell the judge that you wish to request a Public Defender at your first court date. The Wake County Public Defender has excellent attorneys. The only problem with the Public Defender is that those attorneys handle hundreds of cases a year.

Since the preparation of your case makes all the difference in the world, you should consider hiring a private attorney if possible.

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17. How can I schedule a free consultation with you?

If you want to talk to me about the specifics of your case, feel free to contact me at (919) 352-9411. We will answer those questions we can answer. Sometimes we need more information, including information you don't have about the police report or the blood test and so forth. So sometimes we will need to do further research before providing you with an answer.

If we do meet and you do decide to hire us, we will ask you to sign a "Letter of Engagement" which describes the legal services we provide, and the fees we will charge.

In addition, we will discuss a payment arrangement.

We accept cash, checks, credit cards, and payments by third parties (such as parents, friends, or loved ones who want to help you out).

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