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("The following material is reproduced with the
permission of its author, attorney Lawrence Taylor of Los Angeles, California"
http://www.DUIcenter.com/ or
http://www.DUIcentral.com/ )
Frequently Asked Questions About:
"Driving While
Impaired"
(Cumberland County, North
Carolina)
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Click on a question in the table below to go to the answer:
A. Driving While Impaired (DWI), sometimes called “Drunk
Driving” or “Driving Under the Influence” (DUI), has two meanings:
1.
Operating a motor vehicle on a public street or
highway or public vehicular area (such as a public parking lot) with a Blood
Alcohol Content (BAC) of 0.08% or above. (You may be considered "legally impaired"
even though you do not "feel", “look” or “act” drunk if your
blood alcohol content is .08% (or above) within “any relevant time” after
operating a motor vehicle on a street or highway or public vehicular area in
the state of North Carolina); or,
2.
Operating a motor vehicle while alcohol, drugs (including
prescription and “over-the-counter” drugs), or a combination of drugs
and alcohol impair your mental and/or physical abilities, even though your
Blood Alcohol Content (BAC) does NOT rise to 0.08%.
A. There
are tremendous political and societal pressures to "do something"
about “drunk drivers”. In 1997, according to the United States Department
of Transportation there were 16,189 alcohol-related traffic deaths,
representing 38.6% of all such traffic deaths.
As a result it is the policy of the Cumberland County District Attorney’s
Office NOT to plea bargain with ANY person accused of DWI whose BAC is 0.08%
or over.
A.
The following is a list of symptoms in descending order of probability
that the person observed is driving while intoxicated. The list is based upon
research conducted by the National Highway Traffic Administration:
1.
Turning with a wide radius;
2.
Straddling center of lane marker;
3.
"Appearing to be drunk";
4.
Almost striking object or vehicle;
5.
Weaving;
6.
Driving on other than designated highway;
7.
Swerving;
8.
Speed more than 10 mph below limit;
9.
Stopping without cause in traffic lane;
10.
Following too closely;
11.
Drifting;
12.
Tires on center or lane marker;
13.
Braking erratically;
14.
Driving into opposing or crossing traffic;
15.
Signaling inconsistent with driving actions;
16.
Slow response to traffic signals;
17.
Stopping inappropriately (other than in lane);
18.
Turning abruptly or illegally;
19.
Accelerating or decelerating rapidly;
20.
Headlights off.
Speeding,
incidentally, is not necessarily a symptom of DWI.
A.
The original cause for the officer's stopping you need not be related
to driving under the influence.
Routine
detentions for equipment and registration compliance, such as cracked
windshield, inoperative taillight, headlights not turned on, and so forth,
maneuvering and parking violations, and many other reasons have been held by
the courts to constitute sufficient cause.
A.
The traditional symptoms of intoxication taught at the police academies
are:
1.
Flushed face;
2.
Red, watery, glassy and/or bloodshot eyes;
3.
Odor of alcohol on breath;
4.
Slurred speech;
5.
Fumbling with wallet trying to get license;
6.
Failure to comprehend the officer's questions;
7.
Staggering when exiting vehicle;
8.
Swaying/instability on feet;
9.
Leaning on car for support;
10.
Combative, argumentative, jovial or other
"inappropriate" attitude;
11.
Soiled, rumpled, disorderly clothing;
12.
Stumbling while walking;
13.
Disorientation as to time and place;
14.
Inability to follow directions.
A. You
are not required to answer potentially incriminating questions. There are
basically two acceptable alternatives, each with its own potential
consequences.
One approach would be simply to ask, "Why are you
stopping me, Officer?” even if it is at a sobriety checkpoint. When the
officer asks, "Have you had anything to drink this evening?” simply
say, "Officer, I do not wish to be delayed. Please do not delay me. I
want to drive home". If the officer has no other basis to ask you out of
the car, you will be on your way.
A polite, "I would like to speak with an attorney
before I answer any questions", is also an appropriate reply. If you
start with that answer, we suggest that you keep on giving that answer until
you have consulted with an attorney.
Back to INDEX
Q. WHAT
TESTS CAN THE OFFICER ASK ME TO PERFORM?
A. Generally,
the officer who stops you will ask you to perform two types of tests “Field
sobriety Tests" (FSTs) and “Chemical Tests” (Intoxilyzers,
Breathalyzers, Blood, Urine etc.)
If the police officer observes some evidence of
alcohol usage, he/she may ask you to perform a series of "field sobriety
tests" (FSTs). Typically, these tests measure your physical dexterity or
mental acuity. Most officers will use a set battery of three to five of the
following tests:
1.
Recite the alphabet;
2.
Count backwards;
3.
Line-walking;
4.
Finger-to-nose;
5.
Heel-to-toe;
6.
Balancing one foot at a time;
7.
Fingers-to-thumb;
8.
Hand pat;
9.
Bending forward and backward with your eyes closed
If you have chronic physical problems or physical
limitations, have difficulty with your balance, walking, etc., it would be
wise to inform the officer prior to taking the tests.
Also, in many localities the police routinely
videotape all stops. If so, the FST may also be videotaped.
A. Unlike
the chemical test, where refusal to submit may have serious consequences, you
probably are not legally required to take any FSTs.
The reality is that officers have usually made up
their minds to arrest when they give the FSTs; the tests simply provide
additional evidence and the suspect inevitably "fails" the FST.
Thus, in most cases a polite refusal "until I may
speak with an attorney" may be appropriate. Obviously if you appear drunk
in a videotaped FST it will not impress the judge or jury.
A. Generally
speaking, there are three kinds of evidence that a police officer will
consider and gather in the investigation:
1.
Gross observations of behavior in general;
2.
Specific observations of behavior ("field
sobriety tests"); and
3.
Chemical test results of the motorist's blood,
breath or urine.
A police officer may arrest a motorist if the
cumulative effect of the evidence convinces the officer that he has
"probable cause" or "reasonable cause" to make an arrest.
This is a far lower standard than the one the state must prove at trial. There
the case must be proven "beyond a reasonable doubt." Although this
is a high standard, it is met every day in courts all over the country.
A. No.
The officer is supposed to give a warning of your right to remain silent and
tell you that anything you say may be used against you in a court of law (your
5th Amendment rights) and that you have a right to consult an attorney, and if
you can not afford one you have a right to have a lawyer appointed for you
(your 6th Amendment rights) after s/he arrests you. Sometimes
officers do not. The only consequence is that the prosecution cannot use any
of your answers to questions asked by the police after the arrest.
Of more consequence in most cases is the failure to
advise you of the state's "implied consent" law, that is, your legal
obligation to take a chemical test and the results if you refuse. This can
impact the suspension of your license.
A. In
Cumberland County, generally, you may be offered two types of chemical tests
by law enforcement officers: the Alco-Sensor and the Intoxilyzer
5000.
The Alco-Sensor is a preliminary breath test given by
officers (primarily NC State Highway Patrolmen) to suspected “drunk drivers”.
The results may provide “probable cause” for an arrest but are not,
at this time, admissible into evidence against a suspect.
The Intoxilyzer 5000 is a “new and improved model”
of the old “Breathalyzer”. It
is said to determine blood alcohol level by measuring the amount of alcohol in
your breath.
You must submit upon the request of the arresting
officer to this test (and perform it twice) after being placed under arrest
for DWI in North Carolina. Only
the lower of the two readings is admissible against you in court.
A driver in North Carolina also has the right to ask
for a blood test, which is generally considered to be more accurate than
breath test; however, the driver must arrange for the blood test himself (i.e.
getting the doctor or nurse to the station to draw the blood), although law
enforcement officers must allow the driver access to a telephone for this
purpose.
A. You
cannot be forced to take the Intoxilyzer 5000 or any other breath test, but
refusing can result in at least two very harsh consequences. Generally, there are two adverse results:
1.
Your driver's license will be suspended for
twelve months. This is true even if you are found not guilty of the DWI
charge.
2.
The fact of refusal can be introduced into
evidence as "consciousness of guilt". Of course, the defense is free
to offer other reasons for the refusal.
Thus, the decision is one
of weighing the likelihood of a high blood-alcohol reading against the
consequences for refusing.
Back to
INDEX
Q. I
BLEW AN 0.08 ON THE INTOXILYZER 5000 AFTER MY ARREST AND THE MAGISTRATE TOOK
MY LICENSE, HOW AND WHEN CAN I GET IT BACK?
A.
North Carolina law requires the booking Magistrate to revoke the
license of all drivers arrested for DWI who have a Blood Alcohol Content of
.08% within “any relevant time” after driving for thirty (30) days.
Under certain circumstances this may be shortened to 10 days, but this
almost always requires the help of an experienced attorney.
After thirty days have
passed, a person charged with DWI in North Carolina may retrieve his or her
license by going to the county court house and paying a $50.00 dollar
restoration fee. His or her
license is then restored until such time it is revoked for some other reason
(such as being found guilty at trial of DWI), provided s/he did not refuse to
take the chemical test to determine Blood Alcohol Content (BAC) required by
the arresting officer.
There are a number of potential defenses that can be
raised in a given drunk driving case. Roughly speaking, however, the majority
can be broken down into the following areas:
1.
"He wasn’t driving". Intoxication
is not enough: the prosecution must also prove that the defendant was driving.
This may be difficult if, as in the case of accidents, there are no witnesses
to you being the driver of the vehicle. Most drivers quickly admit they were
driving, although they had the right to remain silent.
2.
Probable cause. Evidence
will be suppressed if the officer did not have legal cause to (a) stop, (b)
detain, and (c) arrest. Sobriety roadblocks present particularly complex
issues.
3.
Miranda. Incriminating
statements may be suppressed if warnings were not given at the appropriate
time.
4.
Implied consent warnings. If
the officer did not advise you of the consequences of refusing to take a
chemical test, or gave it incorrectly, this may affect the admissibility of
the test results -- as well as the license suspension imposed by the motor
vehicle department.
5.
“Impairment”. The
officer's observations and opinions as to intoxication can be questioned --
the circumstances under which the field sobriety tests were given, for
example, or the subjective (and predisposed) nature of what the officer
considers as "failing". Witnesses can testify that you appeared to
be sober.
6.
Blood-alcohol concentration.
There exists a wide range of potential problems with breath testing.
7.
Regulation of blood-alcohol testing.
If challenged, the prosecution must prove that the breath tests complied with
state requirements as to calibration, maintenance, etc.
8.
License suspension hearings.
A number of issues can be raised in the context of an administrative hearing
before the state's department of motor vehicles.
This varies according to the CIRCUMSTANCES OF EACH
INDIVIDUAL’S CASE.
A person convicted of DWI in NC may receive up to TWO
YEARS active imprisonment in state
prison.
Generally speaking, a conviction for a first offense
will involve a suspended jail sentence, a fine, court costs, community
service, and a license suspension for a period of one year and, attendance at
a DWI education course.
In North Carolina jail or prison sentences are required
if certain AGGRAVATING FACTORS appear in a case.
1.
The driver has one or more convictions for DWI
within seven years of the present offense.
2.
The driver was driving while his license was in a
state of revocation for a previous DWI.
3.
A person under the age of 16 was in the car at the
time of the offense.
4.
The driver caused serious injury to another person.
A
death during a DWI accident can trigger Manslaughter or Second
Degree Murder charges in North Carolina.
A. Absolutely.
A conviction for DWI will add 12 points to your insurance record and
result in a 400% increase in your insurance rates.
Back to INDEX
Q. IF
I AM CONVICTED OF DWI AND MY LICENSE IS SUSPENDED, HOW AM I GOING TO GET TO
WORK?
A. If you
have no convictions for DWI within seven years of your arrest, and meet
several other legal requirements, you may be eligible for a LIMITED DRIVING
PRIVILEGE. The judge who
convicts you may issue a Limited Driving Privilege, which will allow you to
get to and from work - and drive for several other extremely limited purposes.
Because the requirements for the issuance of a Limited Permit are
stringent and technical in North Carolina, a layman generally requires the
help of an experienced attorney in obtaining one.
A. You
can represent yourself -- although it is a terrible idea.
It’s sort of like a doctor doing an appendectomy on himself.
As you can see, the topic of “Driving While Impaired”
or "Drunk Driving" is a very complex field - with the possibility of
very harsh consequences. There is a minefield of complicated procedural,
evidentiary, constitutional, sentencing and administrative law issues involved
in almost every DWI case.
A qualified attorney, however, can review your case
for defects, put forward the BEST possible defense based on the facts of your
particular case, and if convicted obtain for you the lowest possible sentence
and a Limited Driving Privilege (if you are qualified for one).
You should note that a qualified, licensed lawyer will
represent the State of North Carolina from the Office of the District
Attorney. If the State feels as
though it needs to be represented, shouldn’t you?
Back to INDEX
If you have been arrested for DWI, or know someone who has, call Paul
F. Herzog, Attorney-at-Law, P.A., at 910-483-9500 for a free
consultation. We are conveniently
located in downtown Fayetteville directly
across from the Cumberland County
Courthouse at 210 East Russell Street, Suite
101-103, Fayetteville, NC, 28301 (at the
corner of Dick and Russell Streets) Click here for a MAP
Your driver’s license is a precious asset. Can you
afford to lose it without a fight?
This brochure is published for informational purposes only. It is NOT designed as a “textbook” for a layperson to defend him or herself with. It is NOT designed to serve as a substitute for consulting with a licensed attorney. Be sure to consult with your attorney before going to court on a DWI or any other charge.
Please contact us if you need help! click
here: Paul F. Herzog,
Attorney-at-Law, P.A. in Fayetteville, NC
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