DWI Defenses

Not just any attorney can handle a DWI case.  Not properly.  There’s too much to know.  Too many unique issues that only apply in DWI cases that a run-of-the-mill criminal defense attorney can’t be expected to be aware of, much less have the necessary level of command of the issues and the changing legal landscape to provide competent counsel.

If you’re charged with a DWI, you need competent counsel who has invested the time, conducts ongoing research, and fights the fight in the trenches of the North Carolina courts.  Check out our Results page for a sampling of some of the cases we’ve handled to get a sense of our commitment to fighting DWIs.

Below I’ll include a sample of some of the specific defenses and defense strategies available in a Driving While Impaired case.  But before we get to that, let’s take a look at what the State has to prove in a DWI in North Carolina:

N.C.G.S. § 20-138.1: Impaired Driving

In order to prove that you’ve committed a DWI, the State must prove:

  1. That you “drove” a vehicle,
    1. NOTE: Our statute uses the word “drive,” which has a common and obvious meaning, but our Court of Appeals has expanded the definition to include anything that constitutes “operation” of a vehicle — generally considered to mean being in “actual physical control of the vehicle.”  That requires, at minimum, a running engine — but doesn’t require actual “driving,” despite the plain language of the law.  I’m still looking for the right case to take to the United States Supreme Court on this issue.  Call me if you’ve got a case involving no driving.
  2. On any highway, any street, or any public vehicular area within the State,
    1. NOTE: This element has been expanded, again, by our Court of Appeals to include your own driveway.  Be careful out there if you’re sitting in your driveway drinking a cold one while vacuuming your interior — the long arm of the State may swoop in and charge you with a crime.  Call your legislators if you think it’s starting to sound like we live in a police state and that makes you uncomfortable.
  3. While “under the influence”
    1. NOTE: “Under the influence” been interpreted to mean that your physical or mental faculties are “appreciably impaired” by alcohol or some other impairing substance, which requires the State to prove that you lost control of your normal faculties.
  4. Of an impairing substance, OR
    1. NOTE: This means that the State cannot prevail on a theory that you are impaired on, for example, a prescription drug, without proving that the drug has impairing effects.  That evidence should require expert testimony, not merely the word of a cop who has no pharmacological training.
  5. After having consumed a sufficient quantity of alcohol to have a BAC of .08 or higher at “any relevant time after the driving,” OR
    1. NOTE: What constitutes a “relevant time” after the driving is ripe for litigation, and not always obvious depending on the facts of the case.
  6. With ANY AMOUNT of any Schedule I Controlled substance, or its metabolites, in the driver’s urine or blood.
    1. NOTE: This is as outrageous as it sounds.  Under this final prong of the DWI statute, you can be convicted of Driving While Impaired if you are stone cold sober, but used Heroin, LSD, Ecstasy, or any other Schedule I controlled substance in the last days or week, and simply have traces remaining in your system.

Those are the elements of a DWI in North Carolina.  Note that the first two elements (as I’ve broken them down) must be proven in every case, and then the State may prove “impairment” under either 3/4, 5, or 6 (even though 6 doesn’t actually require any proof of impairment — because impairment is assumed when there are residual traces of a Schedule I substance in your system, despite the total lack of any scientific evidence to support that assumption).

Potential DWI Defenses


One fundamental element that the State must prove in a DWI case is that you “operated” the vehicle within the broad meaning afforded that word by our appellate courts.  Generally speaking, to prove this element of the offense, the State must prove that you were in “actual physical control” of the vehicle — beyond a reasonable doubt.

Certain cases give rise to viable defenses relating to the “operation” prong of the statute.  For example, any case in which there is an accident and no police witness observed the accused driving a vehicle.  Even better, where no police witness observed the accused sitting in the driver’s seat, or anywhere near the driver’s seat.  If there are multiple individuals on the scene when the police arrive, any one of those individuals could have been the driver.  Even when the suspect confesses to the crime (in other words, admits to driving), our State Supreme Court made it clear in State v. Trexler (1986) that a confession alone is insufficient to support a conviction.  Under the corpus delicti principle (Latin for “body of the crime”), in addition to a confession, the State must prove its case with evidence that substantially corroborates that confession.  They might try to introduce registration from the vehicle (which is almost always inadmissible hearsay), or they might try to argue that the position of the seat reflects that it was driven by a driver of a certain height.  Or maybe there’s a wallet with an ID in the console.  But without more, a confession isn’t enough.

Another scenario that gives rise to a potential “operation” defense is a case in which the accused is found sleeping in a vehicle.  And believe me when I tell you that our police will arrest you for sleeping in your vehicle with even a hint of alcohol about you, despite the fact that you are obviously trying to do the right thing.  So much for decency and discretion.

But back to the point: an unconscious individual is clearly not in “actual physical control” of a vehicle, so the State’s only option is to argue by inference that you were in “actual physical control” of the vehicle at some time in the past.  But when?  And what evidence do they have of who actually started the car?  This type of case is fertile ground for reasonable doubt.

Ferguson, Etc.

Other DWI defenses exist entirely outside of the elements of the offense.  For example, if you’ve been arrested for a DWI and the cop takes you downtown to blow into a breathalyzer, once you’ve been properly advised of your implied consent rights, you have (among other rights) the right to have access to either a witness or an attorney prior to blowing into the Intox EC/IR II instrument.  If you assert that right (and you should always assert that right), the cop has to give you 30 minutes to make contact with an attorney or get a witness to the breathalyzer room.  If the arresting officer or jail staff interfere with that right, your attorney may have a viable argument for an outright dismissal of the case — regardless of the rest of the facts.

The seminal case in this area is State v. Ferguson (1988), in which Mr. Ferguson asserted his right to have a witness present during the administration of the breathalyzer at the jail, and his wife did, in fact arrive at the jail within the allotted 30 minutes.  Because jail staff prevented her from having access to her husband during that 30 minutes, the entire case was dismissed due to a “flagrant violation” of Mr. Ferguson’s constitutional right to mount his own defense.


In a similar vein as Ferguson, the State Supreme Court threw out three cases in State v. Knoll (1988) due to interference with DWI defendants’ fundamental right to have access to witnesses after the breathalyzer was conducted.  In the Knoll trilogy of cases, each defendant was held on what’s known as an “impaired driving hold,” and was subsequently denied access to a witness during that period of detention that followed the imposition of the hold by the magistrate.

At the outset, nearly every “impaired driving hold” that is imposed in North Carolina, in my own experience, is illegal.  The statute clearly states that “A defendant may be confined or otherwise secured if he is so unruly as to disrupt and impede the proceedings, becomes unconscious, is grossly intoxicated, or is otherwise unable to understand the procedural rights afforded by the initial appearance before the magistrate.”  § 15A-511(a)(3).  Most of the impaired driving holds I see involve no more than a finding that the defendant’s BAC is some number, usually in the .15-or-higher category.  A BAC of .17 does not meet the statutory requirement, so at the outset you have a statutory violation.

But, under the ruling in Knoll, the defendant must then make a showing that prejudice resulted from the violation, which typically requires some evidence that a witness was available to appear, or actually did appear, but failed to gain access to the defendant due to some action on the part of the police or jail staff.  An experienced DWI lawyer can navigate this complicated area of law to determine if you have a viable defense relating to your post-breathalyzer detention.

Implied Consent Violations

North Carolina has on its books what is known as an “implied consent” law.  In short, you consented to blowing into a breathalyzer when the police suspect you of Driving While Impaired, even though you were entirely unaware of surrendering your consent.  At least that’s the thinking of our state legislature.

Here it is:

N.C.G.S. § 20-16.2.  Implied consent to chemical analysis; mandatory revocation of license in event of refusal; right of driver to request analysis.

(a)        Basis for Officer to Require Chemical Analysis; Notification of Rights. – Any person who drives a vehicle on a highway or public vehicular area thereby gives consent to a chemical analysis if charged with an implied-consent offense. Any law enforcement officer who has reasonable grounds to believe that the person charged has committed the implied-consent offense may obtain a chemical analysis of the person.

But — and this is the important point from a DWI defense perspective — you have certain very specific rights that emerge from that same law if you are charged with a DWI.  First, the officer must have “reasonable grounds” to believe you’ve committed an implied consent offense prior to directing you to blow into the breathalyzer (the EC/IR II at the police station, that is — the same is not required for a portable breathalyzer/PBT).  If you were arrested for an unrelated charge, and then the cop decides to have you blow into a breathalyzer downtown because of a mere hunch that you may be drunk, that is the making of a defense strategy.

Or, if the officer fails to advise you of your implied consent rights, both orally and in writing, your attorney has a rock solid argument for suppression of the breathalyzer result.  The officer must advise you explicitly of all of these rights, from the same statute:

(1)        You have been charged with an implied-consent offense. Under the implied-consent law, you can refuse any test, but your drivers license will be revoked for one year and could be revoked for a longer period of time under certain circumstances, and an officer can compel you to be tested under other laws.

(2)        Repealed by Session Laws 2006-253, s. 15, effective December 1, 2006, and applicable to offenses committed on or after that date.

(3)        The test results, or the fact of your refusal, will be admissible in evidence at trial.

(4)        Your driving privilege will be revoked immediately for at least 30 days if you refuse any test or the test result is 0.08 or more, 0.04 or more if you were driving a commercial vehicle, or 0.01 or more if you are under the age of 21.

(5)        After you are released, you may seek your own test in addition to this test.

(6)        You may call an attorney for advice and select a witness to view the testing procedures remaining after the witness arrives, but the testing may not be delayed for these purposes longer than 30 minutes from the time you are notified of these rights. You must take the test at the end of 30 minutes even if you have not contacted an attorney or your witness has not arrived.

Failure of the officer to advise you of the above rights both orally and in writing is grounds for the exclusion of the numerical result.

Under the same legal framework, our appellate courts have made clear that if the officer wants to switch from a breath test to a blood test (without a warrant), he or she must re-advise you of your implied consent rights prior to the subsequent test.  Once is not enough if there are two different types of tests.  Failure to re-advise a suspect of his or her implied consent rights is also a basis for suppression of the result.

Intox EC/IR II Protocol Violations

Another fertile area for challenge by an experienced DWI attorney relates to the administration of the breathalyzer itself, the Intox EC/IR II.  There is a long list of requirements published by North Carolina’s Department of Health and Human Services with which the State must establish compliance, with evidence at trial, before the numerical result — the alcohol concentration — can be legally admitted into evidence.  Our judges don’t always apply the law correctly, but the law remains the law.

A few examples: The State has to prove that the EC/IR II was calibrated according to DHHS regulations, which it is rarely in a position to prove adequately.  The State has to prove that a continuous 15-minute observation period was conducted prior to the blow.  Or if the suspect registered a “Mouth Alcohol” reading when providing a breath sample, the officer is required to restart that 15-minute observation period, according to the Intox EC/IR II manual — which any good DWI lawyer has in his or her arsenal and ready to spring at trial.

The Fourth Amendment and the Suppression Argument

Finally, despite the United States Supreme Court’s ongoing effort to erode the Fourth Amendment so that police can do whatever they want, whenever they want, you do still technically have a right to be free from unreasonable search and seizure.

What that means in the context of a DWI charge is that you have 1) a right not to be stopped in the first place without reasonable articulable suspicion of some crime or traffic violation, and 2) a right not to be placed under arrest without probable cause that a crime has been committed.

There is a mountain of case law, both from the North Carolina courts and from the United States Supreme Court, that defines your rights with respect to police encounters generally, as well as your Fourth Amendment rights as applied in the context of an impaired driving case in North Carolina.  Were you stopped for weaving within your lane?  That’s an unconstitutional stop.  Were you arrested because you smelled like alcohol?  That’s an illegal arrest.  Were you stopped for speeding and then ordered out of your vehicle because the officer smelled alcohol?  That’s an unconstitutional extension of a routine traffic stop for a legally impermissible DWI investigation, when the officer has no evidence of actual impairment.

While the founding fathers would roll over in their graves if they knew what our courts have done to diminish the liberty interests that were once protected by the Fourth Amendment, what’s left of the Fourth Amendment is one of the most fundamental protections we have against the rising tide of fascism in America.  It’s true in life, and it’s true in the context of defending a DWI case.

The above reflects only a sampling of the potential defenses to DWI charges.  Every case is different, and defending a DWI requires not only experience and skill, but creativity and a willingness to fight.  If you hire a lawyer who is immersed in the law and well-versed in DWI trial strategies, with a track record of results, your odds of coming out of it without a conviction increase dramatically.  Obviously we can’t guarantee results, but we’ll guarantee a fight, if it’s a fight you want.

Call Our Office for a Free, Confidential Consultation

Call a Durham criminal defense lawyer if you have been arrested or charged with a DWI offense in Durham, North Carolina or surrounding counties.  Contact us today for a free, confidential consultation and case evaluation at (919) 899-9404.