You need a good DWI lawyer
DWI charges are serious stuff. Finding the right lawyer is imperative. We are here to help!
If you’re someone who has been arrested for DWI in Raleigh, then it’s important to know what your rights are and how you can take action during this difficult time.
In this blog post, we’ll discuss frequently asked questions:
- What happens if I’m arrested?
- How do I find a Raleigh DWI lawyer?
- What should I do after getting arrested?
- What happens if I did not do well on Field Sobriety Tests?
- What are the North Carolina Laws on impaired driving
- Will a Substance Abuse Assessment help?
What happens if you get arrested for a DUI?
If you’ve been accused of a DUI, then it’s important that you know the facts about what happens when someone is arrested for impaired driving. This will help prepare you as much as possible to ensure your rights are protected and give yourself the best chance at getting acquitted from this serious charge.
Whether you personally refer to it as “DUI,” “driving while intoxicated” or something else, the consequences of violating N.C.G.S. 20-138.1 Impaired Driving are substantial.
That may include revocation or suspension of your driver’s license, expensive costs of court, fines, and even jail in certain circumstances.
We understand you might be embarrassed about your arrest and not sure what to do. While that makes sense, we think the best thing to do is gather information to help ensure from this point forward things go as well as they can.
Clearly, DWI charges in Raleigh are something to approach with the appropriate level of care and concern. We are here to hopefully make that somewhat easier – John Fanney, Raleigh Criminal Defense Attorney
What is the legal blood alcohol concentration (BAC) limit?
There is more than one way you may find yourself arrested and charged with DWI. You may be under the influence of a substance, an “impairing substance.”
BAC stands for Blood Alcohol Content or Concentration. Professionals within the system tend to use those terms interchangeably. Whatever the type of chemical analysis, the “legal limit” is therefore .079.
The North Carolina law allows for criminal prosecution if you have an alcohol concentration, determined by a blood draw, breath test, or urine test, of .08 or higher. So while some people refer to the “legal limit” as .08, it is more accurate to say .08 is enough to be convicted of driving while impaired.
It is also possible to see charges related to Schedule I drugs, but that is somewhat rare – John Fanney, Criminal Defense Attorney
What evidence does the state have to prove?
The prosecution has the burden to prove beyond a reasonable doubt that you committed the crime of DWI.
They must be able to present evidence that you were driving a vehicle, that you were impaired by alcohol or drugs, and that took place on a public vehicular area, road, street, or highway in Wake County.
If any of these three elements are missing from their case then there is not enough evidence for them to prove beyond a reasonable doubt that you are guilty.
Courts may consider your performance on field sobriety tests and your BAC.
For example: If your attorney can demonstrate that you were NOT appreciably impaired, then the State might not have a case against you.
What will happen in court?
At trial, there are three main things that must be proved for a conviction: The traffic stop of your vehicle by an officer is valid; You were driving or in physical control of the car; and That you were impaired by alcohol or drugs at the time.
If the officer did not have legal grounds to stop you in the first place, then there is a possibility your case could be dismissed because there is a lack of Reasonable Suspicion to stop.
For example: If an officer was following your vehicle for a long period of time without any probable cause or reasonable suspicion that you were breaking traffic laws, your defense attorney may argue they did not have valid grounds to stop you at all.
There also may be grounds to challenge impairment if there aren’t test results available for the trial.
The State may bring in testimony from a drug recognition expert. Your charging officer may be a qualified law enforcement officer who can demonstrate that based on their training and expertise, you exhibited signs of impairment.
You have a right to plead not guilty and demand a trial. District Court DWI trials are handled by a District Court Judge.
If you wish to appeal that ruling or verdict, the NC Constitution and General Statutes provide for an appeal to Superior Court and a Jury trial.
Is DWI a felony or a misdemeanor in North Carolina?
DWI is usually a misdemeanor.
If convicted, you may be sentenced to a period of community service; your driver’s license will be suspended. If this is your first DWI offense within the previous seven years and there are no other grossly aggravating factors that certainly helps.
The sentencing Judge, also known as “the Court,” also takes into consideration both mitigating factors and aggravating factors.
There are times when impaired driving can be a felony in North Carolina. For example, Habitual Driving While Impaired is a felony criminal charge.
DWI may also serve as a legitimate basis for Felony Death by Vehicle, Felony Serious Injury by Vehicle, and Aggravated Felony Death and Serious Injury by Vehicle.
What’s the difference between DWI and DUI in North Carolina?
DWI stands for Driving While Impaired.
It is the more common term used in North Carolina, though it’s still referred to as DUI or OUI (Operating Under the Influence) throughout other parts of the country.
Whether you call it DWI or DUI, as previously stated, it ordinarily is a misdemeanor crime punishable with license suspension, fines, possible jail time, community service, and required substance abuse assessment.
Are there different types of DWI in North Carolina?
There are three main ways you can be convicted of DWI.
The first relates to being “under the influence” of an impairing substance and it involves driving while impaired to some degree by alcohol, drugs, or both to such extent that you are “appreciably impaired.” Your performance on field sobriety tests may be considered as part of that.
Those tests include things like the Horizontal Gaze Nystagmus, the “Heel-to-Toe” and the One Leg Stand test.
The second way is if you drive on a public street, vehicular area, or highway with a BAC test result of .08 or greater.
The third way is through proof that an unspecified level of a Schedule I controlled substance remains in your bloodstream at any relevant time after driving. The Schedule I test need not indicate an active component of the alleged impairing substance.
If you have questions about the Walk and Turn, the PBT Portable Breath Test, or need legal advice about the offense of impaired driving, we are available for consultation.
Is Drunk Driving the same as DWI in North Carolina?
The term “drunk” is sometimes used interchangeably with DWI, but it’s not technically correct under the law. People in the community commonly refer to the offense as “drunk driving,” but that is not consistent with the law.
You do not need to be “drunk” to be convicted of DWI.
DWI is the criminal offense for operating a vehicle while impaired by alcohol or another substance that appreciably impairs your ability to drive safely.
What are some of the penalties of a DWI conviction?
The penalties for a DWI conviction vary based on a series of factors that may include things like your level of impairment and whether it’s your first offense, whether there were children under the age of 18 in the car at the time, and whether your license was revoked at the time of the arrest because another impaired driving matter.
The State carries the burden of proof to show the existence of Aggravating Factors and Grossly Aggravating Factors. That standard of proof is the same necessary to find you guilty– Proof Beyond a Reasonable Doubt. One aggravating factor is a blood or breath test reading of .15 or higher.
The person charged with NC DWI must show, by a preponderance of the evidence, any factor in mitigation or “mitigating factors” that may serve to lessen the punishment.
There are 6 different “Levels” of punishment for misdemeanor impaired driving in NC. The NCDWI laws do NOT have something other states may refer to as DWI FIRST or “first offense DWI.” A jail sentence is possible even for a first-time offender if there exists proof of a Grossly Aggravating Factor.
A limited driving privilege may be possible for a sentence Level 3, Level 4, and Level 5. A limited driving privilege is not an option for aggravated DWI (A1) or Level 1 or Level 2 DWI. A condition for a limited privilege includes proof of a substance abuse assessment.
Court costs vary depending on the level of the offense. Costs may include a fee for the chemical analysis of your blood test if any. The Court may also impose the costs associated with doing community service, whether that’s 24 hours or 48 hours or more in the discretion of the Judge.
What is “Implied Consent?”
You do not have to submit to any blood, breath, or urine tests if you’re arrested and charged with driving while impaired in North Carolina. However, a willful refusal can result in license revocation under the State’s implied consent law.
Under North Carolina’s implied consent laws, all drivers agree to submit to chemical testing in certain circumstances when asked by a police officer for impaired driving investigation purposes.
These tests can be of your breath, blood, or urine.
The State’s Implied Consent Laws require that any person who operates a motor vehicle in North Carolina shall be deemed to have given his or her consent, thereby authorizing law enforcement officers making a lawful stop of the person’s vehicle to obtain breath samples for analysis by using reasonable force in certain circumstances.
Ordinarily, in Wake County, if someone refuses to submit to testing, the charging officer may seek a Search Warrant to require a blood test.
Can a DWI be dismissed in North Carolina?
A DWI can be dismissed in North Carolina if you are not properly charged.
Charges may also be dismissed in court if there was not Reasonable Suspicion to Stop or the officer did not have Probable Cause to Arrest you.
Reckless driving is not a lesser included offense of DWI in North Carolina.
Can I get my license back after refusing chemical testing?
This is a question many people ask themselves when they are arrested and “refuse to blow” or “refuse to give blood.”
The answer varies from case to case.
Your lawyer may ask a series of questions such as:
- Prior the arrest, was your license valid?
- Did you provide any blood or breath samples?
- Did the Chemical Analyst get any reading on the breath machine?
- Were you marked as a Willful Refusal?
- Did you try to blow?
- Did the Licensed Chemical Analyst advise you of your rights regarding providing a breath or blood sample?
Even if someone refuses breath or blood tests, there may be other ways for your attorney to challenge the suspension.
Timing is key, as the failure to timely request a civil revocation hearing or to challenge the Willful Refusal can result in the waiver of your right to do so.
Is drinking and driving a crime in North Carolina?
It is not illegal to drink and drive. It is illegal to drive while impaired.
DWI is not necessarily “driving while drunk,” “drunken driving,” “driving under the influence,” or even “driving while intoxicated.”
You may have some alcohol in your system, if you are of age (21 years old or older) and be completely OK to operate a motor vehicle.
You may not have a sufficient quantity of alcohol or other impairing substance in your system such that you are appreciably impaired.
If you are under the age of 21 it is illegal to have any amount of alcohol in your system.
What are Grossly Aggravating Factors?
The State carries the burden to show the existence of both Aggravating Factors and Grossly Aggravating Factors. The burden of proof is called Proof Beyond a Reasonable Doubt. It is the highest standard or burden in the land. Proof of a Grossly Aggravating Factor may result in a jail sentence.
Mitigating Factors are helpful to the person accused of impaired driving.
The Defendant carries a lesser burden of proof when it comes to factors in mitigation or “mitigating factors.”
That standard of proof is “by the greater weight of the evidence.” Defense lawyers may also refer to that as “by a preponderance of the evidence.”
For example, the prosecutor may introduce your driving record to prove a prior conviction of DWI within seven years. That is a Grossly Aggravating Factor. An aggravating factor may be a test result of .15 or higher or a prior DWI outside 7 years of the date of the offense.
The sentence imposed by the Court considers a wide range of factors. So whether you receive 24 hours of Community Service of an active term in prison depends on what is proved in court.
How does a DWI affect your driver’s license?
Your license could be suspended, revoked, or canceled.
The type of penalty or “sentence” you face depends on the severity of your case including any prior DWI convictions. Your driving record may include moving violations, accidents, and alcohol-related convictions plus any suspensions that occurred in other states where you held a driver’s license.
The Court will revoke your driver’s license if convicted. You may be eligible in appropriate circumstances for something called a Limited Driving Privilege.
Such revocation or suspension may be in addition to civil action taken by the North Carolina Department of Transportation, Division of Motor Vehicles. (NCDMV) for a Willful Refusal or another legitimate basis for suspension or revocation.
Take Action Now to Protect You Future – Call DWI Lawyer John Fanney
The State has a team of lawyers devoted to DWI cases, and they have many tools at their disposal.
It makes sense to have an attorney on your side who knows the DWI laws and has experience with how police officers make stops, conduct investigations, and prepare their reports.
A knowledgeable DWI defense lawyer in Raleigh NC can help you avoid unnecessary mistakes that could hurt your case or in the worst-case scenario, an unnecessary jail sentence.
John Fanney has decades of experience as a criminal attorney and has handled countless driving while impaired DWI cases.
If you have been arrested for driving while impaired, he would like to help protect your rights throughout the process.
Call today to schedule a free consultation about how he may be able to represent you in court if you’ve been charged. You may email us a John@FanneyLaw.com. Emails and website submissions do not create an attorney-client relationship.
Contact the Fanney Law Firm today at (919)-617-7009 for a free, confidential consultation to discuss your situation and get started on your defense.
Our law firm helps people in places like Wake Forest, Holly Springs, Apex, Wake County, Garner, Johnson County, Granville County, Vance County, Franklin County, and Cary NC.