DWI F.A.Q.

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Paul  F. Herzog, Attorney-at-Law, P.A. Fayetteville, NC

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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:

What is "Driving While Impaired"?
What is chemical testing?
Why are DWI laws so vigorously enforced?
What if I refuse the "Intoxilyzer"?
What do police officers look for when searching for "Drunk Drivers" on the highways?
The magistrate took my license after I blew .08. How do I get it back?
I was stopped for a taillight- is that enough?
What are some of the defenses in a DWI case?
What is the officer looking for during the initial detention at the scene?
What is the punishment for DWI?
If I'm stopped by a police officer and he / she asks if I've been drinking, what should Is say?
What are some of the "Aggravating Factors" requiring a jail or prison sentence?
What tests can the officer ask me to perform?
If I am convicted of DWI, can my insurance company raise my rates?
Can I refuse to take Field Sobriety Tests (FST)?
If I am convicted of DWI and my license is suspended, how do I get to work?
What kind of evidence does a police officer need to arrest a motorist suspected of "Drunk Driving"?
Do I need a lawyer or can I represent myself?
The officer never gave me a "Miranda" warning. Can I get my case dismissed?
Contact Paul F. Herzog, Attorney-at-Law, P.A.

Q.  WHAT IS "DRIVING WHILE IMPAIRED"?

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%.

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Q.  WHY ARE DWI LAWS SO VIGOROUSLY ENFORCED?

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.

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Q.  WHAT DO POLICE OFFICERS LOOK FOR WHEN SEARCHING FOR DRUNK DRIVERS ON THE HIGHWAYS?

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.

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Q.  BUT I WAS STOPPED FOR A BAD TAILLIGHT, IS THAT ENOUGH?

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.

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Q.  WHAT IS THE OFFICER LOOKING FOR DURING THE INITIAL DETENTION AT THE SCENE?

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.

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Q.  IF I’M STOPPED BY A POLICE OFFICER AND HE/SHE ASKS ME IF I’VE BEEN DRINKING, WHAT SHOULD I SAY?

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.

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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.

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Q.  CAN I REFUSE TO TAKE FIELD SOBRIETY TESTS?

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.

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Q.  WHAT KIND OF EVIDENCE DOES AN OFFICER NEED TO ARREST A MOTORIST SUSPECTED OF "DRUNK DRIVING"?

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.

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Q.  THE OFFICER NEVER GAVE ME A MIRANDA WARNING. CAN I GET MY CASE DISMISSED?

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.

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Q.  YOU MENTIONED “CHEMICAL TESTING” SEVERAL TIMES, WHAT’S THAT ALL ABOUT?

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.

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Q.  WHAT HAPPENS IF I REFUSE THE INTOXILYZER 5000 (BREATH-ALCOHOL TESTING)?

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.

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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.

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Q.  WHAT ARE SOME OF THE DEFENSES IN A DWI CASE?

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.

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Q.  WHAT IS THE PUNISHMENT FOR DRIVING WHILE IMPAIRED?

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.

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Q.  WHAT ARE SOME “AGGRAVATING FACTORS” REQUIRING A JAIL OR PRISON SENTENCE?

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.

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Q.  IF I AM CONVICTED OF "DWI", CAN MY INSURANCE COMPANY RAISE MY AUTO INSURANCE RATES?

A.  Absolutely.  A conviction for DWI will add 12 points to your insurance record and result in a 400% increase in your insurance rates.

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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.

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Q.  DO I NEED A LAWYER OR CAN I REPRESENT MYSELF?

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?

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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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Last modified: April 28, 2003
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