FAQ: DWI

Driving While Impaired Information

If you believe that you or someone close to you may have a DWI matter and may require legal counsel, please fill out the contact form. Below is some important information regarding a DWI or Driving While Impaired arrest.

A DWI conviction can have serious effects on your life.

A conviction for DWI will go on your criminal and driving record
Your driver's license will be suspended for a period of time.
You may go to jail.
You will pay fines.
You may have an ignition interlock device installed at your expense.
You will be required to go to intervention programs and possibly further treatment.
Your automobile insurance rates may increase for several years.
Moreover, it may be difficult to obtain life insurance with a conviction for DWI.

Below are some frequently asked questions pertaining to DWI or Driving While Impaired.

Can I get a Driving Privilege after my arrest for Driving While Impaired?

Can I get a Driving Privilege after I am convicted of Driving While Impaired?
What is an Ignition Interlock and why will I be required to get one installed as part of my DWI Driving Privilege?

Can I get a Limited Driving Privilege even if I refused the Intoxilyzer test in my Driving While Impaired case?

Should I worry about jail time if it is my first Driving While Impaired arrest?

What are some of the provisions of the new Driving While Impaired statute (THE MOTOR VEHICLE DRIVER PROTECTION ACT OF 2006)?

What if I blew UNDER the legal limit of .08, wont they just dismiss my DWI case?

What if I blew OVER the legal limit of .08, should I even try to fight the DWI case?

What should I do if I am being arrested or accused of Driving While Impaired?

When should I refuse the Intoxilyzer?

What happens if I am convicted in my Driving While Impaired case?

What is the Intox EC/IR-II?

Can I get a Driving Privilege after my arrest for Driving While Impaired? top

YES, typically you can get a Limited Driving Privilege within ten days of your DWI arrest if you meet certain conditions. It may not matter that you have a prior conviction, that you refused the Intoxilyzer 5000, the Intox EC/IR-II or had an accident. This Pre-Trial privilege can be prepared by an attorney so that you can be back on the road while you are waiting for your DWI case to be resolved.

Can I get a Driving Privilege after I am convicted of Driving While Impaired? top

YES, typically you can get a DWI Privilege allowing you to drive from 6:00 AM to 8:00 PM, Monday through Friday, plus non-standard work hours, to use for the one year that your license is revoked for Driving While Impaired as long as there are no Grossly Aggravating Factors in your case and you meet other conditions.

What is an Ignition Interlock and why will I be required to get one installed as part of my DWI Driving Privilege? top

An Ignition Interlock is device that is hard-wired into your vehicles ignition system which is supposed to detect alcohol in your system. It is costly to install and to maintain and there is typically a long wait for an appointment. You will be required to install this machine if the judge finds that you have a Blood Alcohol Concentration of .15 or higher on the Intoxilyzer, the Intox EC/IR-II (or any other test). You may be exempted from this obligation in some circumstances.

If you do receive a Limited Driving Privilege with an Ignition Interlock, you will be further prohibited from driving under this document for a period of 45 days after the conviction. That means no driving at all, even for medical necessity or work. It also requires that any driving be strictly work related with no side trips or discretionary driving permitted.

You may be exempted from this obligation in some circumstances as well.

Can I get a Limited Driving Privilege even if I refused the Intoxilyzer or the Intox EC/IR-II test in my Driving While Impaired case? top

YES, if you meet the conditions of a regular Limited Driving Privilege, if your DWI case has been concluded and you have been suspended for a minimum of six months.

Should I worry about jail time if it is my first Driving While Impaired arrest? top

Under some limited circumstances, such as cases involving an accident or depending on the age of your passengers, jail time for a first time DWI offender is a very real concern.

What are some of the provisions of the new Driving While Impaired statute ("THE MOTOR VEHICLE DRIVER PROTECTION ACT OF 2006) ? top

Effective December 1, 2006, all Driving While Impaired cases are subject to this tough new law. Some of the most significant aspects of this new law:

The results of the Intoxilyzer 5000 or the Intox EC/IR-II are deemed sufficient evidence to prove a Driving While Impaired case.
You can now get a Driving While Impaired charge on a lawnmower or bicycle.
You are now required to either do jail time OR community service as part of a Driving While Impaired conviction, in addition to a fine.
You can now be charged with Habitual Driving While Impaired if you have three prior convictions within the last 10 years. The penalty for Habitual Driving While Impaired is a one year minimum in prison.
You can now be charged with DWI in a closed parking lot of a business or the roadways leading up to a private residential road.
Any person under the age of 21 years may be required to submit to chemical testing by the Alcosensor / Alco-sensor, Intoxilyzer 5000 or the Intox EC/IR-II if the officer has probable cause to believe that they have consumed alcohol.
Most motions by the defense in a Driving While Impaired case must be submitted in writing before the trial.
The judge is required to make written Findings of Fact in dismissing a DWI case, which the District Attorney may then appeal to Superior Court.
If the defendant appeals their Driving While Impaired conviction and sentence, the matter is heard anew in Superior Court and the defendant must have the District Attorneys permission to re-instate (remand) the original judgment back to District Court. (If there are any other pending DWI cases, these must be resolved before this sentencing.)
The District Attorney must explain, in writing, why they are dismissing a Driving While Impaired charge or a Driving While License Revoked charge where the revocation is for a previous DWI - related offense.
You can read this new DWI statute in its entirety by clicking here.

This DWI law is tough and is the unfortunate result of a few isolated cases. And it has yet to have faced any scrutiny by the higher courts. Cases can still be fought and won, and it is now more important than ever to have experienced and skillful legal counsel.

What if I blew UNDER the legal limit of .08, wont they just dismiss my DWI case? top

No. The prosecutor can try to prove that you were Driving While Impaired based upon other evidence such as your driving, personal appearance, physical mannerisms, performance on Field Sobriety Tests, etc.

What if I blew OVER the legal limit of .08, should I even try to fight the DWI case? top

Yes. There are many legal issues upon your DWI case can be dismissed. As an experienced Driving While Impaired defense attorney, I will look for these issues, which can include:

The police officer may have violated your rights in stopping you. This could include an invalid DWI checkpoint or an illegal stop of your vehicle.
The police officer may have violated your rights in arresting you without having first developed enough probable cause.
The District Attorney may not have their necessary witnesses in court.
The District Attorney may not be able to get your Intoxilyzer 5000 or the Intox EC/IR-II reading into evidence if they can not provide the proper technical foundation required by law.
The Magistrate may not have properly found Probable Cause for your DWI arrest.
You were held at the jail too long, denied your right to access witnesses or an attorney, or obtain an independent DWI test

What should I do if I am being arrested or accused of Driving While Impaired? top

Of course, do not place yourself and others in this dangerous position by Driving While Impaired. But if you are in this position, you still have rights under the Federal and State Constitutions. The police may try to get you to give evidence against yourself and then build a DWI case against you using this evidence. You are not required to give this evidence! You are not required to:

Take the Alcosensor / Alco-sensor test.
Take the Intoxilyzer 5000 or the Intox EC/IR-II test at the jail or police station
Perform physical "Field Sobriety Tests" (Most people could not pass them even if stone cold sober and the officer will frequently mark "failure" for the slightest deviation.) These DWI Field Sobriety Tests include the Walk and Turn test, One Leg Stand test, Finger to Nose test, Sway test and Horizontal Gaze Nystagmus test.

When should I refuse the Intoxilyzer or the Intox EC/IR-II? top

You should not take the Intoxilyzer or the Intox EC/IR-II if there are legal "Grossly Aggravating Factors", such as a prior conviction for Driving While Impaired or a license revoked for a prior DWI. ANY Grossly Aggravating Factor will require the judge to incarcerate you for at least seven days and possibly one year. Two or more Grossly Aggravating Factors will require the judge to incarcerate you for at least thirty days and possibly two years. Without the Intoxilyzer or the Intox EC/IR-II evidence, the prosecutors DWI case against you is harder to prove.

Even if you have a clean record, NEVER perform the Field Sobriety Tests or make any admissions about anything.

What happens if I am convicted in my Driving While Impaired case? top

In most cases, you will be sentenced to a fine and court costs. You will also be required to complete some community service and alcohol abuse treatment. Your drivers license will be suspended for at least one year, but you will often be eligible immediately for a Limited Driving Privilege. If you are convicted in a Driving While Impaired case, the judge can sentence you at five (5) different levels, depending on the existence of Aggravating, Grossly Aggravating or Mitigating Factors.

Mitigating Factors include:

if you were driving safely and lawfully at the time
had an alcohol concentration that was .09 Blood Alcohol Content or lower
had a safe driving record
submitted to an alcohol assessment (including participation on their prescribed program of DWI treatment)

Aggravating Factors include

if you were especially reckless or dangerous in your driving
you had an alcohol concentration of .15 Blood Alcohol Content or higher
your negligent driving caused a reportable accident, you had a bad driving record, or you were passing a stopped school bus
speeding 30 MPH over the speed limit
speeding to elude the police officer

Grossly Aggravating Factors include

if you have a prior conviction for DWI within the seven years preceding this arrest
if you were driving while your license is revoked for a previous DWI offense
serious injury to another person caused by your driving
if you were driving with a child under the age of 16 years

(The Judge can not allow a Limited Driving Privilege if you have ANY Grossly Aggravating Factors in your DWI case.)

If the judge finds two or more Grossly Aggravating Factors, they must sentence you at Level One to a minimum 30 days in jail and as much as two years in jail, in addition to a fine up to $4,000.

If the judge finds only one Grossly Aggravating Factor, they must sentence you at Level Two to a minimum 7 days in jail and as much as one year in jail, in addition to a fine up to $2,000.

The judge may not credit your first 24 hours in jail towards any active jail sentence. Some jail sentences may be served on weekends or in some other way that accommodates your work or family obligations, if the request is properly made and the judge approves.

If the judge finds that the Aggravating Factors outweigh the Mitigating Factors, you will be subject to Level Three punishment, which carries a maximum fine of $1000, between 72 hours and six months in jail. The jail sentence can be suspended on the condition that you either serve 72 hours in jail or perform 72 hours of community service.

If the judge finds that the Aggravating Factors and the Mitigating Factors are balanced, you will be subject to Level Four punishment, which carries a maximum fine of $500, between 48 hours and 4 months in jail. The jail sentence can be suspended on the condition that you either serve 48 hours in jail or perform 48 hours of community service.

If the judge finds that the Mitigating Factors outweigh the Aggravating Factors, you will be subject to Level Five punishment, which carries a maximum fine of $200, between 24 hours and 2 months in jail. The jail sentence can be suspended on the condition that you either serve 24 hours in jail or perform 24 hours of community service.

IN MOST CASES, YOU CAN GET A LIMITED DRIVING PRIVILEGE IMMEDIATELY UPON YOUR DWI CONVICTION.

What is the Intox EC/IR-II? top

The Intox EC/IR-II is recent addition to the arsenal of North Carolina law enforcement in Driving While Impaired DWI cases. It has all but replaced the predecessor Intoxilyzer since early 2008, which had been in service for decades and was widely criticized as being outdated. As a practitioner of Driving While Impaired DWI cases, Attorney Chris Connelly has noticed a marked increase in the typical Blood Alcohol Content reported in these cases. It is unclear at this point whether the technology of the Intox EC/IR-II is suspect, or perhaps more accurate than its predecessor Intoxilyzer.

What is clear is that what may have been a reading under the legal limit of .08 Blood Alcohol Content with an Intoxilyzer may now be a reading above that limit, denying valuable defense ammunition. It also means that a defendant, who may have blown under the Blood Alcohol Content that would trigger the requirement to install an Ignition Interlock, may now find themselves being required to do so.

This makes an aggressive defense, including a professional assessment of the Intox EC/IR-II technology all the more important

You can read the DWI sentencing statute in its entirety by clicking here.

These are questions that I, as an experienced attorney and Certified Specialist in State Criminal Law, will look at in determining strategies to try to get your case dismissed. Depending on your case, there may be other ways to get a case dismissed. Call me or fill out the contact form for an individualized assessment of your case. Some people will tell you that your case cannot be won. That's because they don't try.

THE COURT SYSTEM IS VERY COMPLICATED AND THE LAW CHANGES DAILY. I CAN ANSWER THESE AND OTHER QUESTIONS ABOUT CRIMINAL LAW. I AM AN EXPERIENCED ATTORNEY WHO HAS BEEN CERTIFIED BY THE NORTH CAROLINA STATE BAR AS A SPECIALIST IN STATE CRIMINAL LAW.