In North Carolina, you are guilty of the criminal offense Driving While Impaired (DWI) if you (1) drive, (2) a vehicle, (3) on a highway or street, (4) while under the influence of an impairing substance or with an alcohol blood concentration of 0.08% or more. N.C.G.S.20-138.1 For Commercial Drivers (CDL), the legal limit is 0.04%. As with any crime, the State must prove you guilty of all four elements “beyond a reasonable doubt.” While the presumptive blood alcohol limit is 0.08%, you can be charged and convicted of a NC DWI with a blood alcohol content of less then 0.08% as this is only one indicator of whether or not you were impaired. Also, driving while impaired does not just involve alcohol. You can be convicted for driving under the influence of any impairing substance, including illegal drugs or prescription medications.
Probable Cause to Arrest
Before an officer can arrest you for DWI, they must be able to show “probable cause” which is defined by North Carolina Courts as “a reasonable ground of suspicion supported by sufficiently strong circumstances to warrant a cautious man in believing the accused to be guilty.” In evaluating whether sufficient probable cause existed in a particular case, a Judge carefully looks at the facts and circumstances that support the officer in believing the driver was driving while impaired. If those facts cannot be properly shown, then the driver’s Constitutional rights have been violated, and the charges should be dismissed. As a result, the first area we review is whether an officer had “reasonable suspicion” to stop you in the first place, prior to being charged with DWI.
In North Carolina, an officer can stop you if he witnesses criminal conduct, including traffic offenses (speeding, improper lane change, expired tag, etc). In certain situations, an officer may conduct a brief investigatory stop even if you have not broken any laws but only if the officer can describe specific facts that allow him/her to reasonably “conclude in light of his experience that criminal activity may be afoot.” If not, all resulting charges should be dismissed, and your case should be thrown out.
What to Do if Pulled Over for NC DWI?
First, you have the “right to remain silent.” Certainly, do not be rude or disrespectful towards the officer. Any type of erratic or emotional behavior can be a sign of impairment that can be used against you later in Court. However, you are not required to answer any questions about drinking or what you had been doing before being pulled over. Any statements you do make can and probably will be used against you.
Secondly, you are under no obligation to perform any requested “field sobriety tests.” These are those “watch the moving pen,” “walk a straight line” and “count backward” tests that are difficult to do under any circumstances. But, when you are nervous and on the side of the busy road, you are going to “fail,” and any “mistake” will used against you later.
Also, you do not have to submit to the roadside test for alcohol. You can refuse it just like you can refuse the other roadside tests. If you do, the result can establish the necessary “probable cause” for arrest and show alcohol was in your system. The exact reading, however, will not be admissible.
Finally, the issue of whether you should submit to formal alcohol testing “down at the station” after arrest gets a little more complicated. As with all other requests by the State, you can refuse breath testing, but the consequences are fairly severe. If you refuse, the DMV will automatically suspend your driver’s license for one (1) year, and you will not be able to get a “limited driving privilege” to/from work for the first six months of that suspension. And, in cases where there has been an accident, the officer may still demand a blood test with a warrant. On the other hand, if you do “blow,” you may be helping the State build their case against you.
NC DWI Sentencing Factors After Conviction
NC laws relating to fines and penalties are very complex and confusing. There are many variables used to determine punishment. Based upon the evidence presented at the hearing, the trial judge considers a series of factors outlined below to decide which category applies. Each category then has a range of punishments that guide the judge in making a final ruling.
“Grossly Aggravating” Factors
- Prior DWI conviction within 7 years, or after current arrest (each prior conviction is a separate “grossly aggravating” factor);
- DWI while licensed is suspended/revoked for a previous DWI;
- Serious injury to another person caused while DWI;
- Child under 18 in vehicle while DWI;
If none of the “” grossly aggravating factors apply, the judge must then consider any applicable “aggravating” factors, including:
- Grossly impaired, or BAC 0.15% or greater;
- Especially reckless or dangerous driving;
- Negligent driving that leads to accident;
- Driving while license was revoked;
- Two or more prior motor vehicle 3 point convictions or for which license is subject to revocation, within 5 years, or one or more prior convictions of an offense involving impaired driving that occurred more than 7 years earlier;
- Speeding while fleeing police;
- Speeding at least 30 miles per hour over posted limit;
- Passing a stopped school bus;
- Any other “aggravating” factor that increases offense.
Similarly, the judge must also consider any applicable “mitigating” factors, including:
- Slight impairment resulting from alcohol only, and a BAC level of 0.09% or less;
- Slight impairment with no testing available;
- Driving was safe and lawful except for the impairment;
- Safe driving record with no conviction for any 4 point motor vehicle offense or for which the person’s license is subject to revocation within 5 years;
- Impairment caused primarily by a lawfully prescribed drug for an existing medical condition, and the amount of the drug taken was within the prescribed dosage;
- Voluntary submission to mental health facility for assessment and/or treatment for alcohol/drug issues;
- Any other factor that mitigates the seriousness of the offense.
NC DWI Punishment Levels
Aggravated Level One Punishment (Special Level – 3 or more “grossly aggravating” factors present) – Jail (12 months to 36 months – no parole); Fine (up to $10,000);
Level One Punishment (2 “grossly aggravating” factors or driving with underage or disabled passengers) – Jail (30 days to 24 months); Fine (up to $4,000);
Level Two Punishment (1 “grossly aggravating” factor) – Jail (7 days to 12 months); Fine (up to $2,000);
Level Three Punishment (“aggravating” substantially outweigh “mitigating” factors) – Jail (72 hours to 6 months, community service, or combination); Fine (up to $1,000);
Level Four Punishment (no factors are present or are balanced) – Jail (48 hours to 120 days, community service, or combination); Fine (up to $500);
Level Five Punishment (“mitigating” substantially outweigh “aggravating” factors) – Jail (24 hours to 60 days, community service, or combination); Fine (up to $200).
NC DWI Licensing Penalties
DWI 1st – license suspended for 1 year (mandatory); substance abuse counseling;
DWI 2nd – license suspended for 4 years (if previous DWI conviction within 3 years); ignition interlock device (required to restore driving privileges); substance abuse counseling;
DWI 3rd and greater – Call office for personal consultation.
Revocation of Drivers License
After only being charged, not convicted, of a DWI, your driver’s license will be immediately revoked for 30 days. After 10 days, you become eligible for a limited driving privilege. To be eligible, you must: (1) have held, at the time of arrest, either a valid driver’s license or a license that has been expired for less than one year; (2) do not have any other pending impaired driving charges except this one OR any post charge impaired driving convictions; (3) it has been at least 10 days of a 30 day revocation or 30 days of a 45 revocation; and (4) have obtained a Court approved substance abuse assessment. Just Google “NC DWI Assessment”
When you go to Court for your limited driving privilege, you must bring a Petition for Limited Driving Privilege (Form AOC-CVR-9), a copy of your Substance Abuse Assessment, a Certified copy of a seven-year Driving History (cost $7.00), a valid DL-123 insurance form from your insurance agent (good for only 30 days; the court will accept a faxed copy) and three copies of a fully completed, typed, proposed Limited Driving Privilege. There is normally a one day delay between the date you file the paperwork and the date you have the hearing. (**Read the actual statute – NCGS 20-16.5)
Field Sobriety Tests (FST)
After being stopped, officers usually ask potentially incriminating questions like “how much have you had to drink tonight?” If you answer “yes” or if the officer “smells the strong odor of alcohol on or about your person,” you will next be asked to perform “roadside” field sobriety tests. Although there are many variations (reciting the alphabet backwards, counting backwards, etc), there are only three (3) officially sanctioned tests. They are the horizontal nystagmus, heel-toe, and one-leg stand tests. The first test is essentially an “eye exam” conducted on the side of the road. Although officers swear by it, most juries agree it is difficult to get reliable results when “blue lights” are flashing, other cars are driving by, it is usually windy outside, and the person being “tested” is already extremely anxious. The same problems are inherent in the two remaining tests as they are difficult to perform even if you are not wearing “high heels” on gravel pavement. Regardless, police departments uniformly use these tests to try to show impairment.
This device is what most people call the “mini-breathalyzer.” It is a small hand held machine that officers use to determine if there is alcohol vapor in your breath and a crude blood alcohol concentration reading. If the reading is high enough, the officer will use the result to show probable cause to arrest you. The officer cannot, however, use this result in Court or as a substitute of the more formal Breathalyzer test. Both tests are based on very questionable “science” and are subject to ongoing debate about their accuracy and reliability. One only has to recall the previous concerns about “lie detector” results to appreciate the current questions being raised by DWI defense lawyers.
DWI arrests are unique in our legal system. Ordinarily, persons charged with a crime are not required to cooperate with police or give potentially incriminating evidence against themselves. If you refuse here, however, your driving privileges are automatically revoked for a period of one year. You are entitled to a hearing for a limited driving privilege six months into the revocation. But, in order to qualify, you must have had a valid driver’s license or not been expired for less than one year at the time of arrest. Also, you can had no previous refusals or DWI convictions within the past seven (7) years, no unresolved DMV issues pending, no pending DWI’s and no convictions since the original charge. Finally, there can be no associated accident involved that resulted in critical injury or death. The underlying charge, which resulted in the refusal, must have been finally disposed of with no conviction or a conviction under the statute that allows a limited driving privilege, and person has done an alcohol assessment as required by law.
License Revocation After DWI Conviction
After going through the Court process, paying the fines and costs, and complying with all of the other terms and conditions that the Judge will impose, the next dilemma will be with the Department of Motor Vehicles (DMV). The DMV will revoke your license for one year after conviction of a DWI at level Five. Assuming you have no prior convictions, you or your attorney can request a limited driving privileg. A limited driving privilege allows you to drive for the purposes of work, community service, Court-ordered treatment, and school in a specific geographic area duringspecific hours. A limited driving privilege will usually allow you to drive essentially from 6:00 am until 8:00 pm Monday through Friday within the conditions stated above. If you need to drive outside of these standard hours or on weekends, you would need special permission from a Judge.
If you have had a DWI conviction in the past seven years, you are not eligible for limited driving privilege. A limited driving privilege is considered to be exactly that, a privilege. If you are caught driving outside of your hours, geographic region, assigned purpose or if you are driving with ANY amount of alcohol in your blood whatsoever, you can lose your limited driving privilege. The police officer only has to suspect you have been drinking. The level of proof is appreciably less than what is required for the original conviction. If you lose this privilege, you are not allowed to drive at all during the year that your license is revoked. Due to the public outcry over drunk driving, the NC legislature has made it extremely difficult by statute to plea bargain a DWI charge down to a lesser offense, much less dismiss the charges outright.
Special Provision for Underage Drivers Under 21
It is illegal in North Carolina, for a driver under the age of 21 to drive while consuming alcohol or with any level of alcohol in their system. Even if the driver blows much less than .08, such as .01 or .02, the driver can be charged with a violation of this law. This law is punished the same as a DWI. Thus, the driver would be subject to a license revocation, insurance increase, and the same levels of punishment as discussed above.
The preceding is meant to serve only as general information about NC DWI and is not intended to be a substitute for experienced legal advice. If you are located in Charlotte, NC, or live near the Charlotte area, call one of our attorneys for a consult to discuss how your particular facts relate to the law.