DWI STOP AND ARREST PROCEDURES
In a typical traffic stop in which the officer conducting the stop has suspicion that the driver is impaired by alcohol or other drugs, certain procedures are standard as the investigation progresses. Not all procedures are followed in every case, but what follows is a general outline of procedures you might encounter if you are stopped while driving and the officer suspects impairment or driving after consuming alcohol.
The typical DWI case begins with a traffic stop. At the outset, the officer conducting the traffic stop must have a lawful basis to stop your vehicle (different rules apply in DWI checkpoint cases, however — the constitution is essentially suspended for the purpose of DWI checkpoints or roadblocks). The Fourth Amendment guarantees your right to be free from unreasonable search and seizure, and the right to be free from an unwarranted traffic stop is included in that protection under the United States Constitution. Lawful bases for a traffic stop may include failure to use a traffic signal prior to turning or changing lanes, speeding, defective equipment (e.g. tail light out), or failure to use headlights at night. And a favorite among Wake County police officers is “failure to maintain lane control.” What is never permitted is conducting a traffic stop on a mere hunch that the driver may have been drinking based on the time of night or location (e.g. proximity to a bar) or other factors not specifically related to the conduct of the individual driver.
During a routine traffic stop, the officer will typically ask for the driver’s license and registration, and during that process the officer is permitted to ask questions to investigate the possibility of impairment on the part of the driver. The officer may ask where you are coming from, and if you’ve been drinking. While you are not within your rights to lie to an officer, you do have the right to respectfully decline to answer any questions that might incriminate you in any way (including admitting that you just came from a bar, or that you had two beers earlier in the evening).
If the officer suspects that you’ve been drinking based on your answers to questions or other factors, such as the smell of alcohol on your breath, bloodshot eyes, slurred speech, or a visible open container of alcohol in the passenger compartment of the vehicle, then he or she will likely proceed with a series of tests to gauge possible impairment.
TESTS FOR IMPAIRMENT
Inside the Car / “Pre-Exit” Tests
Some officers, upon suspicion of impairment during a routine traffic stop, will ask the driver of a vehicle to perform certain tests while the driver is still inside the vehicle. These tests include:
- Reciting the alphabet, sometimes from a specific letter in the middle to a specific stopping point (e.g. from E to Q)
- Counting backwards
- Finger dexterity (touching each finger to one’s thumb on the same hand, in sequence, while counting — sometimes with both hands simultaneously)
- NOTE: You are not required to agree to perform any of these pre-exit tests, and in most circumstances it is in your legal interest to refuse.
Standardized Field Sobriety Tests (SFST)
There are three Standardized Field Sobriety Tests that are used by North Carolina police officers, which were developed by The National Highway Transportation Safety Administration (NHTSA) in an effort to help police and prosecutors secure convictions. The three tests are:
One-Leg Stand Test (stand on one leg and count one-one-thousand etc. until instructed to stop)
Walk Straight Line Test (walk heel-to-toe, then repeat backwards, or some variation thereof)
Horizontal Gaze Nystagmus Test (follow pen or light with eyes)
NOTE: Once again, you are not required to agree to perform any of these physical tests, and in almost all circumstances it is in your legal interest to refuse.
Portable Breathalyzer Test (PBT, or Alco-Sensor)
Many officers carry a portable breathalyzer test in their vehicles, and you may be asked to blow into this portable unit. You are not required by law to submit to the portable breathalyzer, however, and it is almost certainly in your best interest to refuse.
It is worth keeping in mind that these tests that officers perform on the scene of a traffic stop are designed to produce evidence of your impairment, in order to support the probable cause required to arrest you and take you downtown to subject you to a more elaborate breath alcohol content (BAC) test at the police station.
Breathalyzer Machine (EC/IR II)
The last step of the DWI investigation will be the police officer’s effort to get a reading of your breath alcohol content from a more advanced machine at the police station, which in North Carolina will be the EC/IR II. This is the only test to which you are required to submit, under North Carolina’s implied consent law. If you refuse, you will lose your license for a year, simply for refusing — and you will likely be forced to submit to a blood test anyway. Whether or not an individual should refuse the breathalyzer test downtown is a question that depends on a variety of individual factors, and may not be the same in every case.
Prior to subjecting you to the EC/IR II, however, the police are required to inform you that you have a right to speak to a lawyer and/or call a witness to observe the test. You should be given thirty minutes to get a witness to the police station. There is no downside to taking advantage of your thirty-minute window to get a witness to the police station to observe the administration of the test.
In general, it is worth keeping in mind that no matter how friendly an officer may be throughout this process, his or her goal is to convict you for a DWI. It is in your interest to respectfully decline to assist them in your prosecution whenever you can do so without adversely affecting your legal interests — even when it is uncomfortable under the circumstances.
Finally, following your DWI arrest and processing, you will be presented to a magistrate who will make a decision regarding bond. You may be released on your personal promise to return to court on an assigned date, you may be required to post a bond, and you may be required to abide by a set of conditions upon release.
Frequently Asked Questions
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.
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.
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.
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.
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?