How does the State prove I committed a DWI?
The State has two ways it can prove that you committed the offense of Driving while impaired, or DWI. The first way is by showing that your physical and mental abilities were significantly impaired. The other way is by proving that you had an alcohol concentration that was over the legal limit. The way the state usually tries to prove the first method is through the officer’s testimony about his observations of you and your driving. The most common examples of this are that your driving was particularly bad, that he detected an odor of alcohol on your breath, you were unsteady on your feet, had slurred speech and performed poorly on standardized field sobriety tests etc. The other way the State proves a DWI is by putting forth evidence that you automatically meet the legal definition of impairment, which is an Alcohol Concentration of at least a .08 or higher. This is actually measured by taking a sample of your breath in a large desktop machine at the police station after the officer has arrested you for DWI or by taking you to the hospital for a blood draw. If you have any DWI/DUI related questions, please give me and my law firm SeiferFlatow a call at 704-512-0606.
I know I was drunk and am guilty. Why do I need an attorney?
This video answers the question: "I know I was drunk and am guilty. Why do I need an attorney?" You may have several legal defenses of which you were unaware, besides whether or not you were actually driving while impaired. For example, did the officer have reasonable suspicion to pull you over or did he have probable cause to arrest you. Just because you believe or even know that, in hindsight, you were impaired doesn’t mean that the State, which has the burden of proof for every element of the crime, can meet that burden beyond a reasonable doubt. Furthermore, if you are convicted, a lawyer can help with the sentencing, which in North Carolina is very complex for a DWI. The difference between extra hundreds or thousands of dollars in fines, extra community service or even jail time often depends on whether certain factors are brought to the judge’s attention. Also, a first time offender is usually eligible for a limited driving privilege upon conviction. There is a lot of paperwork that is necessary and a lot of documents that need to be put together before the judge will even sign the privilege. It is often a daunting task to try to tackle this on your own. If nothing else, an attorney can help make a stressful situation less stressful by providing insight and answers to often difficult questions during a very difficult time. If you have any DWI/DUI related questions, please give me and my law firm SeiferFlatow a call at 704-512-0606.
What happens if I refuse to provide breath sample at police station after arrest?
When the officer requests that you provide a sample, you have the right to refuse to provide a breath sample. However, if you refuse, your license will be suspended for a period of 1 year solely on account of the refusal and regardless of the outcome of your actual case. The reason that DMV can suspend your license for refusing to blow is because our courts have said that driving is a privilege not a right. By driving on public streets, you have in essence given your consent to be chemically tested upon suspicion of DWI. You have the right to refuse, but DMV is allowed to penalize you by suspending your driving privileges. If you refuse, the officer may then transport you to the hospital and obtain a search warrant to draw your blood to get a blood alcohol concentration reading. If the officer does not draw blood, then the State will be limited in its ability to directly prove that you were impaired while driving. If the officer marks you as a refusal, you will be notified by DMV that your driving privileges are going to be suspended for a year for refusing a chemical test. However, you can request a hearing to challenge the grounds of the willful refusal and as long as you request the hearing before the suspension begins, the suspension will not commence until you have had your hearing with DMV. If you have any DWI/DUI related questions, please give me and my law firm SeiferFlatow a call at 704-512-0606.
What is the ignition interlock device and will I be required to install it?
This video explains what the ignition interlock device is a it pertains to a Driving While Impaired (DWI) charge in North Carolina and when you are required to install it in your vehicle after a conviction. When you’ve been charged with driving while impaired or DWI, the officer will ask you to submit a sample of your breath or, in certain circumstances, he may take you to the hospital to draw your blood. The breath or blood sample is analyzed for alcohol concentration. If the sample comes back at a .15 or higher, which is nearly twice the legal limit of .08, AND you are convicted of the offense, then you will be required to install an ignition interlock device in your vehicle for at least a one year period. This is also often required for repeat offenders regardless of the alcohol concentration. This device requires you to blow into it to start your car. Besides being a major inconvenience, it also costs a lot of money for installation and for monthly usage fees, it has to regularly be maintained, and it often malfunctions. If you are in fact required to install the interlock device, then you will be unable to obtain a limited driving privilege or get your driving privileges reinstated without proof of installation. If it is required, there is no way around it. You cant simply wait it out and hope that years down the road DMV wont require it. If you have any DWI/DUI related questions, please give me and my law firm SeiferFlatow a call at 704-512-0606.
I've heard some states reduce DWIs to a lesser charge like reckless driving. Is this possible in NC?
Most North Carolina counties including here in Mecklenburg County, will not reduce a DWI at all to a lesser charge. The only time there is ever any negotiating when it comes to a DWI is when you receive other charges in addition to the DWI. Because the state wants the conviction for the Driving While Impaired charge, it will gladly dismiss the remaining charges in exchange for a guilty plea to the DWI. Other than that, you are either pleading not guilty and going to trial to try to prove your innocence or you are pleading guilty to Driving While Impaired. A DWI in North Carolina is pretty much an all or nothing charge. There is no compromise, no in between. If you have any DWI/DUI related questions, please give me and my law firm SeiferFlatow a call at 704-512-0606.
What is the penalty for a first time offender and is jail mandatory?
What is the penalty for a first time DWI offender and is jail mandatory? In North Carolina, there are 6 levels for sentencing upon conviction. There’s Levels 1-5 and Aggravated Level 1, which is the most severe. 5 is the least severe level. Sentencing is based on the presence of grossly aggravating factors, aggravating factors, and mitigating factors. Grossly aggravating factors are really bad facts such as having a minor child in the car with you, having a prior conviction for DWI within a certain time period, causing an accident involving personal injury etc. If there are 3 or more of these, then the person is automatically an aggravated level 1. If there are exactly 2 present, then it’s a level 1 and if theres only 1 of these facts present, youre a level 2. All of these include mandatory jail time and fines. The amount of jail time and fine simply depends on which level you are. If you don’t have any of the grossly aggravating factors present then you would be either a level 3, 4 or 5. The level is determined by weighing aggravating factors (not grossly aggravating as discussed before) against mitigating factors. Aggravating factors are bad facts but not quite as bad as the grossly aggravating factors. These could include a bad overall driving record or a really high breath or blood test result of alcohol concentration. Mitigating factors are good factors like a safe driving record or the fact that you obtained a substance abuse assessment prior to conviction. If the aggravating factors outweigh the mitigating, youre a level 3. If theyre equal, level 4 and if there are more mitigators present than aggravators, then youre a level 5. All of these 3 levels include fines, community service and drug and alcohol classes. The amount of fine and community service is simply dictated by the level, but either way, you shouldn’t be looking at active jail time except in rare instances. If you have any DWI/DUI related questions, please give me and my law firm SeiferFlatow a call at 704-512-0606.
What is reasonable suspicion to investigate?
In North Carolina, an officer cant just pull you over for no reason. He has to have reasonable suspicion, which is defined as specific facts that indicate that criminal activity is afoot. For example, if you were involved in a motor vehicle accident or you committed a minor traffic infraction such as speeding or failing to stop at a stop sign, the officer then has the right to pull you over and conduct a further brief investigation. This is how a lot of DWI cases begin. You commit a minor traffic violation and the officer pulls you over. He detects the odor of alcohol so he asks you some questions and your answers lead him to believe that you are impaired. He then has the legal authority to perform a DWI investigation. Certain behavior may or may not give rise to reasonable suspicion. For instance, our Courts have held that weaving within your own lane without crossing into another lane does not in and of itself give rise to reasonable suspicion to stop the vehicle and investigate. A successful legal challenge to the stop on reasonable suspicion grounds means that he didn’t have the legal right to stop your vehicle and therefore, he didn’t have the right to conduct a DWI investigation. The case is thus dismissed. If you have any DWI/DUI related questions, please give me and my law firm SeiferFlatow a call at 704-512-0606.
What are my rights when asked to provide a breath sample at the police station after I'm arrested?
Before the officer can obtain a breath sample at the police station, the officer has to read you certain rights, called your implied consent rights. These include the right to refuse to provide a sample and the consequences in doing so, the right to obtain your own chemical test after you are released, and the right to call a witness or attorney to witness the test so long as the testing is not delayed by more than 30 mins. Upon release from custody, you have the right to get your own chemical test. This usually entails going to the hospital and having them draw blood so it can be analyzed for blood alcohol concentration. You also have the right to call someone to witness the test. If you exercise this right, then the officer has to wait 30 minutes for that person to arrive before he can attempt to collect a breath sample. If he does not wait the full 30 minutes, it may be grounds to keep the breath test result out of evidence. Even if nobody is able to come to the station, calling a witness or an attorney at least buys you additional time for some more alcohol to exit your system. This could mean the difference between guilt or innocence in borderline cases. If you have any DWI/DUI related questions, please give me and my law firm SeiferFlatow a call at 704-512-0606.
What is Probable Cause?
When an officer suspects that you have been driving while impaired, he has to develop his case before he can arrest you. He must have probable cause to arrest. This means that there have to be specific facts that, when taken as a whole, indicate that you most likely have committed the offense. This standard is not as high as beyond a reasonable doubt which is the standard used to actually convict someone, but the officer still has to show that the arrest itself was based on specific facts that support his theory of driving while impaired. The officer’s investigation consists of a few stages. The first stage is the officer’s observations of your driving. He will observe your driving and determine whether certain indicators of impairment are present such as problems with lane usage or problems with judgment. After he has pulled you over, the next phase consists of face to face observations through his interaction with you such as the odor of alcohol, slurred speech, problems with producing various documents etc. He then will most likely ask you several followup questions such as whether you had anything to drink and how long ago. The final phase of his investigation consists of you exiting the vehicle to perform various field sobriety tests and to submit a breath sample in his handheld device. The roadside breath sample result can ONLY be used to indicate the presence of alcohol as the possible impairing substance. The actual number of the result is inadmissible in Court to prove a specific alcohol concentration or impairment level. All of the officer’s observations taken as a whole may or may not give rise to probable cause to arrest you. If you have any DWI/DUI related questions, please give me and my law firm SeiferFlatow a call at 704-512-0606.
Should I perform officer's field sobriety tests on side of the road?
When an officer suspects that you have been driving while impaired, he has to develop his case before he can actually arrest you. He must have probable cause to arrest. This means that there have to be specific facts that, when taken as a whole, indicate that you most likely committed the offense. This standard is not as high as beyond a reasonable doubt which is the standard used to actually convict someone, but the officer still has to show that the arrest itself was based on specific facts that support his theory of driving while impaired. When he has you perform the roadside tests, which are certainly designed for you to fail, he is essentially using the results of those tests to justify the arrest. Keep in mind, the officer normally makes up his mind to arrest within the first few minutes of making contact with you. All he is doing by investigating further is giving himself a way to justify your arrest in a court of law. So, in a nutshell, even if you do cooperate with the officer, he will still arrest you for, quote unquote, poor performance on his tests. On the other hand, if you politely refuse to perform the tests, the officer will not want to cut you any breaks and will arrest you for being intoxicated and uncooperative. However, it will be much easier for your lawyer to challenge the legal basis for the arrest if the officer isn’t able to testify about how poorly you supposedly did on the field tests. The simplest answer to this question is to refuse the tests to limit the amount of evidence the officer is able to develop against you. If you have any DWI/DUI related questions, please give me and my law firm SeiferFlatow a call at 704-512-0606.