Years ago, a young man described an encounter he had with a seasoned State Trooper. The Trooper was stationed outside a local beer joint in a small town in Eastern North Carolina. He saw the young man leave the bar, walk to a small car, and drive away. Nothing about what he saw gave the Trooper any reason to stop the man, other than he was leaving a bar, but he decided to follow anyway.

The small car drove within the speed limit and carefully across a bridge near the bar. Nothing jumped out at the Trooper except that the driver seemed to take great pains to follow the rules.

Isn’t that what a driver is supposed to do?

The Trooper had a hunch and decided to stop the man. He approached the car to encounter a clean-cut, polite young man who answered all his questions clearly and without hesitation. At the same time, the young man was extraordinarily nervous.

When asked if he had been drinking that evening, the young man responded, “yes, sir.”

The Trooper asked how much, and the man said, “two beers.” The Trooper asked the young man to exit the car for field sobriety tests. He passed the tests and ultimately registered very low on a potable breath test.

After getting up his nerve, the young man politely and hesitantly asked the Trooper, who had a gun and a badge, why he stopped and investigated him for impaired driving.

The Trooper told him the truth, “You operated your car within the speed limit. You were incredibly nervous. And everyone tells me they have had only two beers.”

The young man responded, “well, my mother is a strict Baptist and all I could think about was telling her I had been arrested for driving while impaired.”

And, he really had only two beers that night.

Luckily for him, those two beers were not enough to cause impairment or push him toward the legal limit for driving while impaired.

The story of this encounter emphasizes the reality in a society dependent on cars for transportation.

Good people drive after drinking. Sometimes, they drink more than allowed by law. Often, it is difficult to know when you have drunk enough alcohol to cause impairment or push yourself over the breath alcohol concentration that makes driving illegal.

That is called driving while impaired in North Carolina. It is a crime even if most offenders are irresponsible instead of malicious.

We hope this report answers some common questions about driving while impaired in North Carolina.

How Does North Carolina Define A DWI?

There are two ways to be convicted of driving while impaired in North Carolina:

(1) You operate a vehicle on a public vehicular area with a breath alcohol concentration of .08 or greater; or,

(2) You operate a vehicle on a public vehicular after having a sufficient quantity of some impairing substance to appreciably impair your mental or physical faculties.

Under the second prong of the statute, the substance that appreciably impairs the mental or physical faculties does not have to be alcohol. It can be a prescription drug, an illegal drug, or some other impairing substance.

In other words, you would not have to shows signs of a 0.08% breath alcohol concentration if your faculties were appreciably impaired.

At the same time, if you have a 0.08% breath alcohol concentration, you are guilty of driving while impaired, even if your physical or mental faculties are not appreciably impaired.

What Are Common Misconceptions People Have About Being Arrested For DWI?

Many people have misconceptions about the law related to driving while impaired. Three common misconceptions follow:

(1) A person must take roadside, or standardized field sobriety, tests.

(2) It is always an advantage to avoid blowing into the breath machine at the station.

(3) There is no defense to the charge.

The misconceptions are understandable because the science related to breath alcohol concentration, the driving while impaired statutes, and the legal proceedings are complicated.

That causes people to conclude a driving while impaired (DWI) charge is the end of the world and that they have no defense to the charge. Neither is true.

When Should Someone Plead Guilty To DWI?

In general, a DWI arrest is only going to happen once. A young woman who weighs 110 pounds and cannot believe she blew a .08% after only a couple glasses of wine is unlikely to take any risks with alcohol in the future. We encourage clients to make every effort to keep a good record clean. We explain the ramifications of a conviction and point-out that pleading guilty guarantees that they suffer all those ramifications.

The more we approach driving while impaired defenses like we would any other serious case, the better we serve our clients. In any other case, we investigate the facts, evaluate the options, and help our clients decide whether to proceed to trial or enter a guilty plea.

We conduct a thorough investigation and evaluate the case before deciding how to plead. Many cases have defenses, and avoiding a conviction has many great benefits. For most people, that starts with keeping a good record clean of a criminal conviction.

A driving while impaired carries significant costs and penalties are enhanced for a subsequent conviction.

Pleading guilty, may be the right decision, but only after hiring an experienced criminal defense lawyer to investigate the case, evaluate your options, and help you decide how to respond to the charge.

What Is The DWI Procedure In North Carolina?

Everything begins with the stop. This point in the process is important, because it is a common challenge to a driving while impaired charge. After the stop, the officer investigates to determine whether probable cause to arrest exists.

If so, the officer takes the driver to the station and offers the driver a breath or blood test. If the driver registers a breath alcohol concentration of .08 or greater, the officer takes them before a magistrate, who will issue a warrant, set conditions of release, and enter an order revoking their license for thirty days.

Most people are released following a driving while impaired charge, but anyone arrested for DWI has the right to contact potential witnesses if detained.

A driving while impaired charge is a misdemeanor in most cases and begins in district court. The court will schedule a first appearance to determine whether the driver wants to hire a lawyer or request court-appointed counsel.

When we are hired, we appear for our clients at the first appearance and have the case rescheduled.

The next step is to obtain all documents and recordings related to the police investigation. After reviewing that information, we attempt to interview the officer and any witnesses to the events leading up to the arrest.

In North Carolina, any person charged with driving while impaired loses the privilege to drive for at least thirty days. After satisfying certain obligations, like obtaining an alcohol assessment and producing proof of valid insurance, the driver may be eligible for a limited privilege to drive to and from work after ten days without a license.

After thirty days, most people can regain their license by paying a civil revocation fee. They keep the license while awaiting trial for the driving while impaired charge.

In our jurisdiction, court dates are often rescheduled several times before we are able to schedule a trial. These delays allows both sides to gather investigative reports and recordings related to the arrest. Blood tests take longer and can cause lengthy delays.

Sometimes these delays are beneficial. Other times, we push the cases to trial sooner.

Each situation is different so the timing of the case is always part of our conversation with our clients when defending against a driving while impaired charge.

Almost all misdemeanor driving while impaired cases are tried before a judge. If convicted, a client has ten days to appeal for a de novo trial before a jury.

What Can Someone Expect When They Are Released from Jail?

First, meet with an experienced lawyer. A good lawyer will begin investigating the case immediately.

The first few days are generally a busy time. Your lawyer will enter an appearance in court. You will obtain an alcohol assessment to support your petition for a limited privilege to drive during the thirty-day pretrial revocation period. You must gather a document from your insurance carrier to satisfy the court that you have insurance.

During the first court appearance, the court will determine whether you qualify for a court appointed lawyer or plan to hire counsel. If you hire a lawyer, that lawyer can enter an appearance and have the case moved to a new date to prepare your defense.

What Happens To The Driving Privileges At That Time?

If you are arrested, your license will be suspended for thirty days. If you need to drive to work, however, we can get you a limited privilege to drive back and forth to work after ten days, assuming you meet certain requirements. After thirty days, the Clerk of Court will return your license after you pay a civil revocation fee.

Are Occupational or Hardship Licenses Available In North Carolina?

Limited privileges are available if certain conditions are satisfied. For example, if you are a caterer and have to drive all hours of the night and weekends, judges usually grant a privilege, if you are eligible.

Now, it is critical to understand that that privilege means exactly what it says. It is a privilege to drive to work. It does not mean you can go to a movie. A person cannot have any alcohol in his system while driving with a privilege.

What Are Potential Penalties For A DWI Conviction?

Most people are not sentenced to significant time in jail for a DWI conviction, especially for a first offense.
The exception is when someone is injured as a result of the driving, or when someone is driving with a child in the car.
For most people, the greatest penalties are the collateral punishments associated with a driving while impaired conviction. These punishments are not directly associated with the judge’s sentence.
Examples of these collateral punishments include loss of your license, increased insurance, potential job problems, and creating a criminal record. These consequences create lingering burdens for anyone convicted of driving while impaired.

What Factors Can Enhance Or Aggravate A DWI Charge?

The biggest factors that aggravate a DWI charge are injuries or death caused by the driving that resulted in the DWI conviction. That is the case whether you have a clean record or multiple DWI convictions.
A conviction to driving while impaired causes a mandatory jail sentence if the driver had a passenger under eighteen years old in the car at the time of arrest.
Next, a subsequent conviction within a seven-year period requires a minimum jail sentence. Even if the judge found mitigating factors, the grossly aggravating factor of having a prior conviction would force the judge to sentence you to some jail time.
Assuming there is only one grossly aggravating factor, a jail sentence could be up to a year. For a third offense within a seven-year period, the sentence could be up to two years in prison. So, the potential active punishment increases with each conviction for driving while impaired.
Receiving a DWI while your license is revoked for another DWI charge is also a grossly aggravating factor that requires the judge to sentence the driver to some period in jail.

Are Drug DWI Cases Easier To Defend Than Alcohol Related DWIs?

Driving while impaired charges based on driving after consuming an impairing substance other than alcohol adds a level of complexity. The law is unsettled about certain standards for determining impairment.
The defense may want to consult an expert to evaluate the blood sample or assist with the cross-examination of the state’s expert. Even if there is little scientific support that shows when a person is impaired based on the concentration of a chemical in the blood, a person can be convicted if they are appreciably impaired by a substance. A particular concentration is not required.

Can The Accuracy Of A Blood Test Be Challenged In A Drug DWI Case?
The accuracy of a blood test result- in terms of the significance of the concentration of a drug- can be challenged. Whether the driver was impaired by a chemical present in a blood sample is always a question. There are often questions about the protocols and the procedures that used to acquire the sample as well. More often the question is whether the person was impaired at the time of driving by a particular substance discovered in a blood sample taken sometime after driving.

Most states have yet to develop a particular standard. In North Carolina, a blood alcohol concentration of 0.08 is the limit set by statute for alcohol. There is not a particular standard for other substances.

The questions are whether a blood test revealed the presence of an impairing substance and whether the substance caused impairment at the time the driver operated the motor vehicle.

How Much Does Someone Have To Rely On Science In Defending A Drug DUI Case?

All drug impairment allegations require us to research scientific articles. Sometimes we hire experts to help us determine the impact of the presence of a particular substance in a blood sample.

Many drugs are not impairing. We may have a question whether a particular substance is impairing or whether it is impairing at a particular concentration.

Consulting experts is common in these situations.

What Happens After Someone Is Pulled Over On Suspicion Of A Drug DWI?

Some police officers are certified as Drug Recognition Experts. They claim to have the ability to determine whether a person is under the influence of drugs based certain features of the person’s appearance.

If the officer who stopped the driver is not certified, they may call someone who is certified to come to the scene and determine whether probable cause exists that the driver is impaired by some drug.

If the officer finds probable cause, they are going to arrest the person and ask them to consent to a blood test. If a person consents to a blood test, a nurse or other certified person will draw a sample of blood for the lab to analyze in effort to determine whether the person has drugs in their system.

There is nothing illegal about driving with drugs in your system; it’s only illegal to drive while under the influence of an impairing substance.

If the person doesn’t consent to a blood test, officers will seek a search warrant from the magistrate. If the magistrate issues a warrant, they’ll take the blood sample based on the warrant and send it to the lab for analysis.

Depending on the results of the blood analysis, the defense may need to hire independent experts to review the analysis. In some cases, the defense hires a lab to conduct an independent analysis of the blood sample.

What Are Penalties Associated With Refusing A Blood Test In A Drug DWI Case?

If probable cause to arrest for an implied consent offense (also referred to as an impaired driving offense), the officer can request that the person submit to a chemical test.

If the officer has reason to believe that the driver is impaired by something other than alcohol, they will probably ask the person to submit to a blood test. Under these circumstances, refusal to submit to a blood test will result in a magistrate issuing an immediate revocation of the person’s license. In response, the North Carolina Department of Motor Vehicles would revoke the person’s license for a year.

The driver would have the same hearing rights to contest the revocation with the Department of Motor Vehicles as for refusing a breath test.

Should Someone Ever Admit Taking A Drug To An Officer?

I advise people in most cases to avoid speaking to an officer without the advice of counsel. If you choose to talk to an officer, however, you should tell the truth.

Volunteering information regarding past drug use can be detrimental in two ways. First, admitting to drug use may provide law enforcement with probable cause to take a blood sample. Secondly, if they get a blood sample, they are ultimately going to rely on the results from that test rather than your word.

Making statements inconsistent with what the blood test shows will hurt your case.

Even if you are honest and the blood test results are consistent with what you said, the question remains: were you impaired by the substance? The judge or jury is going to make that determination based on what the experts say about the concentration of drugs in the blood and the evidence witnesses observe at the time of the offense.

What Happens If Someone Refuses A Chemical Test?

After an arrest for driving while impaired, the arresting officer offers the driver the opportunity to take a breath or blood test. The officer decides which test to offer. In North Carolina, the driver has a statutory right to refuse a breath or blood test, but that decision has consequences.

First, driving while impaired is an implied consent offense. That means every driver agrees to take a chemical test when they decide to drive.

You can refuse but are accepting a penalty of an automatic suspension of your license for one year based on the refusal. That penalty is imposed a short time after arrest and is not dependent on a conviction. Significantly, you are ineligible for a limited privilege to drive for six months.

While avoiding a chemical test may be beneficial to your defense under some circumstances, the automatic loss of your driving privilege without the ability to obtain a limited privilege for six months is a significant burden to most people.

Second, the arresting officer may seek a search warrant for blood after a driver refuses. If the search warrant is granted, the driver must provide a blood sample, the state tests the sample, and the driver loses their license for a year based on the refusal.

That practice does not mean the driver should submit to a chemical test in all circumstances but the consequences for refusing are a significant consideration.

Third, a refusal can be held against the driver in court. Judges differ on the amount of weight to give a refusal. Some judges recognize that drivers have understandable suspicions about the process.

Particular judges give refusals little weight and focus on the driving, interaction with the arresting officer, and the field tests to determine whether the driver was appreciably impaired. Others assume that a driver must be hiding something if he refuses to take a chemical test and weigh refusals substantially in favor of impairment.

A driver has to expect a judge or jury to consider refusing a chemical test as a factor in favor of impairment.

Additional Information About Chemical Test Refusals

If a person refuses to submit to a chemical test, the person should request a hearing with the
Department of Motor Vehicles. Those hearings are difficult to win but can be valuable. Sometimes we win the refusal hearings and avoid the automatic license revocation. In almost all cases we obtain valuable information during the hearings that can assist in the defense.