So you’ve been out for the evening and had a couple of drinks. You’re on your way home, when all of the sudden you see those blue lights in the rear-view mirror.
What do you do?
If you’re reading this the day (or week) after being charged with a DWI, you should talk to a qualified, aggressive Raleigh DWI lawyer.
But if you’re reading this before ever being charged with a DWI, here are some things to keep in mind.
Try to keep calm. By keeping calm, you reduce the signs of nervousness – “clues” – that a police officer may later claim were clues that you were Driving While Impaired.
When the police officer approaches your window, you must provide your name, and your license and registration.
But do not answer any questions. If the police officer asks you where you’ve been, do not answer. Instead, ask him “Is there a problem officer?”
If the police officer asks you whether you’ve been drinking, do not answer. Instead, ask him “Am I under arrest officer?”
If the police asks you to exit the vehicle, you should comply. Police officers have the right to have you exit the vehicle for their safety.
And if they ask you to walk to the back of the vehicle (away from traffic), you should also comply.
But if the police officer asks you to perform any “tests” – either Standardized Field Sobriety Tests or tests the officer has invented to trip you up – politely refuse.
You are not required to perform any field sobriety tests or answer any of the police officer’s questions (beyond giving your name, license, and registration).
It is important that you do not perform any tests. These tests are designed to have you fail, and to produce “clues” which give the officer probable cause to arrest you.
Do not perform any tests.
If the officer asks you to blow into a handheld Portable Breath Test (PBT) instrument, politely refuse.
Do not blow into any handheld devices. You are not required to blow into these handheld devices.
If you have not performed any roadside tests and if you have not blown into any handheld PBT devices, you are improving your chances of walking away from the incident without a DWI conviction even though you may well be arrested.
That’s because, while the officer may decide to arrest you, his decision to arrest you will be based on very little information and will therefore be an excellent case for you when you reach court.
If You’re Arrested, What Should You Do?
Being arrested is scary, but it is not the worst thing that can happen to you. Being convicted of a DWI (which in North Carolina carries with it a 1-year mandatory license suspension, usually about $500 in fines, a permanent criminal record, and possibly even jail time) is far worse than being arrested for a DWI.
If you’re arrested, do not say anything, except giving your name and other booking information (address, date of birth, age, and so forth). Do not apologize. Do not say “I shouldn’t have drunk tonight.”
A police officer is not required to read you your Miranda Rights, and anything you say can be used against you as a “spontaneous utterance.” So don’t say anything, except providing the basic biographical information listed above.
Be polite and cooperative. But don’t answer questions about where you were, what you had to drink, when you last slept. These are NOT things you are required to tell. So don’t say these things. They will hurt your case.
If you’re told to blow into a machine, what should you do?
Once you get to the police station or the jail, you may be informed of your “Implied Consent” rights and then asked whether you will blow into a machine.
What should you do?
First, you should always ask to have a witness, and then attempt to get one, even if the chances to get one are very small. Asking for a witness gives you a 30 minute period before you will be required to submit to a breath sample.
Second, you must decide whether you will submit to a breath sample on North Carolina’s breathalyzer machine, the Intox EC/IR II.
If you refuse to blow (or even if you have trouble blowing into the machine) you may be marked down as a “refusal”, which means that you will be subject to an automatic 1-year suspension of your license. This suspension exists to encourage people to submit to the breathalyzer machine, and this suspension goes into effect even if you are never convicted of the DWI. As an added punishment, you are not entitled to any right to drive during the first 6 months of the refusal suspension.
That refusal suspension goes into effect after a DMV refusal hearing. It is very hard to “beat” a DMV refusal hearing, but it can be done. So even if you refuse, it is not guaranteed that you will face that mandatory suspension. But the penalty is quite severe.
That said, it is probably a good idea to refuse to blow into the Intox EC/IR machine. That’s because the Intox EC/IR machine is a black box, meaning that once it spits out a number, it is difficult for any defense attorney to challenge it.
What Happens If I Refuse to Blow?
If you refuse to blow into the Intox EC/IR II machine, you will probably be faced with a refusal suspension.
But more importantly, if you refuse to blow, the officer can request a search warrant from the magistrate, and have a nurse draw blood by force from your arm.
So even if you refuse to blow, you may still be required to provide a chemical sample that may result in a BAC number of .08 or above.
However, the good news – if there can be good news – is that a blood sample can be subject to greater scrutiny by a defense attorney.
That’s because the blood must be properly preserved, stored, and tested. And mistakes in this process can potentially be exposed by your defense attorney.
What Are My Next Steps?
If you’ve been charged with a DWI, you can start getting your life back together by getting a Limited Driving Privilege 10 days after your arrest. You should contact a top Raleigh DWI lawyer to help you in this process, and then begin the process of defending you in court.