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Charlotte NC Criminal Defense Law Blog

North Carolinians facing DWI charges need an aggressive legal advocate

Regardless of the circumstances, being pulled over by a police officer is a nerve-wracking experience. When an individual is subsequently asked to exit his or her vehicle and submit to field sobriety tests and a breath test or blood test, the situation quickly escalates. If faced with this scenario, it's important to pay close attention to what a police officer says and does and also to understand one's legal rights.

For example, when asked by a police officer, many North Carolina residents likely believe that they have no choice but to submit to a breath or blood test. While North Carolina's Implied Consent law imposes penalties against drivers who refuse to submit to these types of chemical tests, a police officer cannot force a driver to submit to a test wihtout a warrant or "exigent circumstances". In reality, an individual not only has the right to refuse to submit to a breath or blood test, but doing so may also be one's best option.

The best option may, in fact, be for the motorist to refuse the test.  The ball is then in the officer's court to allege exigent circumstances allow him to take blood without a warrant, or seek a warrant, or just throw in the towel and not get the blood test.

North Carolina politicians take steps to increase penalties for DWI/DUI

We've previously discussed in blog posts how North Carolina has some of the toughest drunk driving laws of any state. However, if two bills that were recently introduced by North Carolina House Democrat Rep. Darren Jackson become law, the penalties for some individuals convicted of DWI/DUI will be even more punitive.

Currently individuals who are convicted of drunk driving and required to install an ignition interlock device in their vehicle, must register a 0.04 or lower in order for the vehicle to start. However, if House Bill 31 becomes law that threshold will be lowered to 0.0.

The high costs of an underage DWI

Any driver who is pulled over by a police officer and subsequently asked to exit his or her vehicle and complete a series of field sobriety tests is, with good reason, likely to be terrified. This is especially true in cases involving young and inexperienced drivers. 

If convicted, individuals who face drunk driving (DWI/DUI or Driving after consuming being under 21) charges in North Carolina are subject to some of the harshest penalties in the country. The state's DWI laws are particularly unforgiving for those individuals who are under the age of 21.

If convicted of DWI/DUI, the young person under 21 may possibly not get any driving privileges at all for one year or until they turn 21, whichever is longer.  Althgouh some judges may sign the privilege, DMV may reject it and note a suspension and unauthorized privilege in the computer.  

If charged with Driving after Comsuming being under 21 Years of Age, ANY alcohol in the defendant's system may be sufficient to support a conviction, even if its below the legal limit of .08

NC Court of Appeals' ruling in DWI case raises questions

As we discussed in our last blog, a police officer who pulls a driver over must have reasonable suspicion to believe that a driver has committed a crime. In cases where this requirement isn't met, a defense attorney will fight to get any criminal charges that may follow as a result of the traffic stop dismissed. However, according to a recent ruling by the North Carolina Court of Appeals, evidence collected in an unconstitutional traffic stop may still be used as justification to revoke an individual's driver's license in an Administrative Hearing at NCDMV.

In January of 2013, a 34-year-old North Carolina school teacher was driving her vehicle when a police officer, acting on an anonymous tip of erratic driving, began following her. The officer did not witness anything unusual, but decided to pull the driver over after witnessing the car make what he described as a "slight cross of the center line."  The evidence was suppressed in the CRIMINAL case which resulted in a dismissal of that criminal proceeding, but the Court Of Appeals held that it could be used nonetheless in a CIVIL hearing in DMV and support the revocation of her license for the Refusal of the chemical test. 

DWI cases and procedural errors and violations

We've discussed in previous posts some of the penalties individuals who are convicted of a DWI in North Carolina may face. There's no doubt that the financial and personal costs associated with a drunk driving conviction are significant and individuals who are facing criminal charges would be wise to contact a defense attorney and explore their options.

Contrary to what many people believe, DWI cases can be successfully defended and an attorney will closely investigate the facts of a DWI stop and arrest to determine whether any procedural errors or violations occurred.

For example, an attorney can look at whether the stop of the defendant's vehicle was lawful.  Did the officer have reasonable suspicion? Did the officer see some vioaltion of motor vehicle law or was it just normal driving activity?  For example, a delayed start of a few seconds when a red light turns to green might not be sufficient.  Same for weaving in the lane or spinning tires.  Was the DWI/DUI checkpoint properly constructed?  What was the "primary programmatic purpose"? Was the location and time of the checkpoint designed to fulfill a valid law enforcement need? Was the public put on notice of the checkpoint?

Then, the attorney can look at the probable cause for the DWI/DUI arrest decision.  Did the officer do the Field Tests properly and were they qualified to do so?  The National Highway Traffic Safety Administration has certain tests that should be performed in a very precise way, and even then those tests are only 65-68% reliable.  Did the officer use his Portable Breath Test properly?

If the defendant had a Blood Alcohol Content ("BAC") over .08, the attorney should look at the maintenance schedule for the Intox EC IR II and whether the officer performed the test correctly, including waiting for witnesses to arrive.

Was the defendant released promptly as required by Statute?

Panel's plan aims to adjust federal white-collar crime sentences

Regular readers of this blog may recall that back in August of last year we highlighted that the U.S. Sentencing Commission anticipated focusing more attention on revising federal guidelines related to convictions in white-collar crime cases. As a result of the panel's efforts, there is some growing anticipation that penalties for certain financial crimes could be reduced in some instances.

At issue, according to many defense attorneys, is the fact that the current advisory guidelines put so much emphasis on the amount of monetary loss suffered by investors in stock fraud cases, rather than on any actual gains that various defendants might have realized. As a result, minor players convicted in a large scheme might be penalized as harshly as those who gleaned the most from an offense. 

How to avoid being questioned about DWI at a License checkpoint?

This is an interesting idea. If you approach a LICENSE checkpoint - where the officer has authority ONLY to check licenses, not look for signs of impairment - can you put your license outside the window and refuse to roll down the window (where the officer will be trying to smell your breath etc.)?
Since you have satisfied the purpose of the checkpoint, is the officer hamstrung from taking further action?

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