If you are arrested on suspicion of impaired driving in North Carolina, you have a number of rights that must be honored in order for the State to convict you of a DWI. One important right is your right to have a witness present at various stages of the investigation, including during administration of the breathalyzer test at the police station.
In State v. Ferguson, 369 S.E.2d 378 (1988), the NC Court of Appeals vacated a DWI conviction on the grounds that the record failed to establish that the defendant’s right to have a witness present to observe the defendant during critical stages of the investigation, while he remained in custody. In that case, the defendant, Mr. Ferguson, had been arrested and taken downtown, and was informed of his right to call a witness to observe the administration of the breathalyzer test. He was informed of his right to a 30-minute time window to get his witness to the station, and he immediately called his wife to observe both his demeanor and the breathalyzer test. His wife arrived at the police station within 20 minutes of the defendant’s call, but she was not permitted access to her husband. Instead, she was told by law enforcement personnel that she was too late, and she was instructed to wait — which she did, for an hour and half, before her husband came out. Because the trial court failed to establish that Mr. Ferguson’s constitutional right to investigate his own case and challenge the evidence against him was protected, the Court of Appeals vacated the conviction and remanded the case for further findings consistent with that judgment.
In short, the Ferguson case makes clear that an impaired driving defendant has a right to have a witness present during a DWI investigation, both for the purpose of observing the breathalyzer test itself, as well as for the purpose of observing the defendant’s demeanor in the time immediately following his arrest. When that right is compromised due to the actions of police officers, then North Carolina state law gives the defendant a powerful argument that the charge should be dismissed.
BENJAMIN (BEN) HILTZHEIMER
Ben is an experienced trial lawyer who earned his law degree from The George Washington University in Washington, D.C. He was trained in trial practice at the nation’s preeminent Public Defender agency, the federally funded Public Defender Service for the District of Columbia, described by United States Attorney General Eric Holder as “the best public defender office in the country.”
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