NC DWI FAQ

 

North Carolina DWI FAQ (Frequently Asked Questions)

Below are some frequently asked questions relating to DWI charges, arrests, and convictions in North Carolina, along with some general answers.  What follows should not be treated as legal advice, and you would be well-advised to talk with a local Raleigh DWI lawyer to help evaluate the facts of your individual case.  Every case is unique.  Please don’t hesitate to call Chetson Hiltzheimer for a free attorney consultation at (919) 727-9227. And if you have your own question that isn’t answered here, you can ask it below, and an attorney will respond to you promptly.

★ Q: What does the State have to prove to convict me of a DWI?

★ Q: I was arrested for a DWI after I blew a .08 (or .09, .10, .11, .12, etc.) on the breathalyzer.  Do I have any choice but to plead guilty?

★ Q: I was arrested for a DWI and my license was suspended.  When will I be able to drive again?

★ Q: If I’m convicted of a DWI as a first-time offender, what am I facing?

★ Q: If I’m stopped and suspected of driving while impaired, what are my rights?

★ Q: I was arrested for a DWI, but the police never read me my rights.  Don’t they have to throw out my case?

★ Q: I refused to do the breathalyzer at the police station.  What happens?

★ Q: What are the different tests that are used to check for impairment or intoxication?

★ Q: Can I get a DWI on a bike?

Q: What does the State have to prove to convict me of a DWI?

A: You can find the actual DWI law in the NC General Statutes, § 20‑138.1.  In short, the State has to prove that you were 1) driving a vehicle in a public place (sadly, including your own driveway), while a) under the influence of an impairing substance; or b) after having consumed enough alcohol to result in a BAC of .08 or greater from a chemical analysis; or c) with ANY amount of a Schedule I controlled substance or its metabolites in the person’s blood or urine.  And yes, unfortunately, that means in North Carolina you can be convicted of a DWI for drug use that occurred days or weeks prior to your driving, if it is detectable in your blood or urine.  But if there was no legal basis to subject you to the chemical analysis in the first place, then your lawyer may be able to get the evidence suppressed.

Q: I was arrested for a DWI after I blew a .08 (or .09, .10, .11, .12, etc.) on the breathalyzer.  Do I have any choice but to plead guilty?

A: The short answer is yes, you do have options other than simply pleading guilty, even if you blew at or above the legal limit of a .08 blood alcohol content (BAC).  You have a right to demand a hearing on the lawfulness of your stop and arrest, at which your lawyer can argue that the traffic stop and your eventual arrest were illegal, in violation of your Fourth Amendment right to be free from unreasonable search and seizure.  If successful, your case could be dismissed even if it is undisputed that you were above the legal BAC limit.  You also have a right to demand a trial, thereby forcing the government to prove beyond a reasonable doubt that you were, in fact, driving while impaired.  There are many areas in which a skilled defense attorney can mount a challenge in an effort to beat a DWI case, even when the facts don’t appear to be on your side.  Every case is different, but there is always an alternative to simply pleading guilty.  A DWI lawyer can advise you of viable options given the facts of your case.

Q: I was arrested for a DWI and my license was suspended.  When will I be able to drive again?

A: In general, if you are charged with a DWI in North Carolina after registering a .08 or higher BAC, your license will automatically be suspended for 30 days while your case is pending.  Under some circumstances, however, you may be eligible to petition the Court for limited driving privileges (e.g. for work and school) ten days following the initial suspension.

Q: If I’m convicted of a DWI as a first-time offender, what am I facing?

A: There is a broad range of potential penalties for a DWI in North Carolina.  Even for a first DWI offense, NC law can be very harsh on drunk driving / driving while impaired offenses, especially if there are “aggravating” or “grossly aggravating” factors in your case.  Grossly aggravating factors include prior DWI offenses and having a child under 16 in the vehicle, and aggravating factors include a BAC of .15 or above, reckless driving, and others.  In general, the best case scenario for a first offense DWI in North Carolina will be a choice between 24 hours in jail or 24 hours of community service, a fine up to $200 plus court costs, a suspended license for a year but with the possibility of obtaining a limited driving privilege for work and school, and probation with a suspended jail sentence that can be imposed if there are any violations of the conditions of probation.  At worst, a first DWI offense can result in a sentence as severe as 2 years in jail and a $4,000 fine.  For a more detailed outline of DWI sentencing in NC, please refer to this NC DWI Sentencing Guide.

Q: If I’m stopped and suspected of driving while impaired, what are my rights?

A: This is a critical question, and if more people knew their rights in advance, there would almost certainly be far fewer DWI convictions in Wake County. First, you are not required to answer any questions. You cannot legally refuse to provide a license and registration during a traffic stop, but you absolutely do not need to answer questions such as “have you been drinking,” or “where are you coming from.” In fact, providing answers to those questions may give the police a legal basis to initiate a DWI investigation, whereas with a simple, polite refusal to answer any questions may put them in a position where they cannot proceed to pursue a hunch that you’ve been drinking, if they don’t have an objective basis on which to do so.

Second, you are not required to submit to any field sobriety tests (walking in a straight line, reciting the alphabet, counting backwards, etc.) or a portable breathalyzer test (field unit or “PBT”). The only test you are required to submit to is the machine back at the police station (which is also present in the “DWI Bus” at DWI checkpoints/roadblocks) — which in NC is the “Intox EC/IR II” — refusal of which will result in the suspension of your license for a year. But up to the point at which an officer is requesting that you blow into the EC/IR II, you are not required to comply with any requests designed to evaluate your alleged impairment, and there is likely no downside whatsoever to refusing to comply. Your refusal to comply may very well mean the difference between being released for lack of probable cause, and a DWI conviction — or the different between a Guilty and a Not Guilty verdict at trial.

Q: I was arrested for a DWI, but the police never read me my rights.  Don’t they have to throw out my case?

A: No, but this is a common misconception.  Your Due Process rights under the Fifth Amendment do require law enforcement officers to read you your Miranda rights, once you are in custody, prior to engaging in any interrogation.  But, there are clear limits on the remedies available to a defendant whose Miranda rights are violated.  Your Miranda rights are designed to ensure that you are aware that you have a right to refuse to answer any questions, that you have a right to have an attorney present if you give up that right and choose to answer questions, and that if you do decide to answer questions (which is almost always a very bad idea – and ALWAYS a bad idea without a lawyer), your answers can (and will) be used against you in every way possible.  If your lawyer is able to establish that you were interrogated – that is, asked questions by an agent of the state (police, prosecutor, etc.) that were designed to elicit an incriminating response – while you were in custody, then your answers should be deemed inadmissible as evidence against you in the government’s case-in-chief.  That is the only effect of a Miranda violation, and it has no effect on any other evidence in the case, including breathalyzer and field sobriety test results, as well as any admissions you may have made prior to being placed in custody.

Q: I refused to do the breathalyzer at the police station.  What happens?

A: In general, your license will be suspended for a year, regardless of the outcome of your DWI case (though you may be eligible for a limited driving privilege after 6 months).  North Carolina’s “implied consent” law makes submitting to chemical analysis mandatory following a DWI arrest, and that law triggers certain repercussions for a refusal.  Further, the fact that you refused can be used against you at trial, as evidence that you knew you were guilty.  However, there may still be cases in which it is advisable to refuse.  Further, under certain unique circumstances it may be possible for your (or your lawyer) to prove at a special hearing that you had a legitimate reason to refuse, such as a medical condition, or that it wasn’t really a “refusal” in the first place.

Q: I blew a .10, was charged with a DWI, and my license has already been suspended.  Is there any point in hiring a lawyer?

A: In short, yes.  While it may seem hopeless at this stage, there is more than your BAC that the government must prove before you can actually be convicted of a DWI.  They have to prove that there was a lawful basis for the traffic stop itself, which requires the government to show that the officer had “reasonable articulable suspicion” to initiate a stop of your vehicle.  If it was a mere hunch and the police cannot articulate an objective basis for the stop itself, then your BAC and all over evidence could be suppressed, resulting in the dismissal of your case.  The state also has to prove that the arresting officer or officers had probable cause for your arrest, after the initial stop.  The state has to prove every element of the offense, and a skilled criminal defense attorney can challenge every single facet of your case — including fundamental questions, such as whether or not you were the one driving the car in the first place.  DWI cases are not easy to win by any means, but with a good DWI lawyer advocating on your behalf, your chances of a better outcome increase.  And, if you are convicted (which, to be realistic, is the outcome in most DWI cases in NC), your lawyer can advocate on your behalf for a reduced penalty.

Q: What are the different tests that are used to check for impairment or intoxication?

A: There are generally three categories of tests that are used by police officers to gauge intoxication or impairment (or sobriety). First, an officer conducting a traffic stop may use what are known as “pre-exit” tests to evaluate impairment while the driver of a vehicle is still seated in the driver’s seat. These pre-exit tests include: reciting the alphabet (often starting from some point in the middle, which would probably trip up the most sober among us), counting backwards, and the so-called “finger dexterity” test, which involves tapping each finger on a given hand to the thumb on that hand, one by one, while counting — and perhaps involving doing the same thing on both hands simultaneously.

Second, an officer may ask you to perform Standardized Field Sobriety Tests (SFSTs), which are tests that were developed by the National Highway Transportation Safety Administration (NHTSA), to help police and prosecutors convict you with unscientific procedures that you should refuse to engage in. These are exercises that the officer may ask you to perform after you’ve been asked to step out of the vehicle. There are three such procedures: the One-Leg Stand Test (stand on one leg and count one-one-thousand etc. until instructed to stop), the Walk Straight Line Test (walk heel-to-toe, then repeat backwards, or some variation thereof), and the Horizontal Gaze Nystagmus Test (follow pen or light with eyes). The more things you agree to do, the more opportunities the police have to observe your behavior, and the more evidence against you will likely mount. As we’ve said elsewhere, you are fully within your rights to simply decline to perform any such field tests, and there is little downside to doing so.

Third, there are the breathalyzer and blood tests. There is a portable breath test (PBT) used in NC called the Alco-Sensor, which is a hand-held unit that some officers carry with them in their squad cars. This test is notoriously unreliable and you are absolutely not required to submit to it — and you can (and almost certainly should) simply refuse it. Simply refusing this test may prevent the police from establishing probable cause to arrest you. Submitting to it may very well have the opposite effect. Then, there is the allegedly more reliable breath test typically only found back at the police station downtown (the exception being the ones found on the “DWI Bus” at DWI checkpoints), which in North Carolina is the Intox EC/IR II. You are required to submit to this test after probable cause has been established for a DWI, but the police are required to inform you that refusing to submit to this test will result in suspension of your license for a year just for refusing. There may be cases when it is in your interest to refuse this test, but that can only be evaluated on a case-by-case basis. Finally, there is the blood test, which some officers will attempt to force you to submit to if you refuse the EC/IR II. The most important take-away point on this subject is that there are rarely exceptions to the rule that you should always refuse to blow into the portable breathalyzer unit that officers carry in the field.

Q: Can I get a DWI on a bike?

A: Yes, in North Carolina. While you may think that criminalizing riding a bike after drinking would only discourage people from using this far safer option, that’s exactly what the state of NC has done.  In fact, riding a 25-pound bicycle while impaired on a North Carolina sidewalk carries exactly the same penalties as driving 3-ton Hummer on I-40.  Same goes for a golf cart. Make sense?

 

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