DWI/DUI Frequently Asked Questions
I have just been charged with driving while impaired and they took my license. When and how can I get it back?
North Carolina law allows the state to take your license for 30 days upon being charged if your reported blood alcohol contact (BAC) is recorded at .08 or higher of if you refuse the intoximeter or blood test. This civil revocation is automatic but it can be contested if you request a hearing within the first 10 days.
After 10 days from the date of your arrest, you may be eligible for a limited driving privilege (LDP). To be eligible you will need to obtain a substance abuse assessment and pay a $100 filing fee to the clerk of court. This LDP must be signed by a district court judge. Obtaining this privilege is a service we provide as a part of our representation. The privilege will allow you to drive from 6 a.m. to 8 p.m., Monday through Friday, and any time outside these times for school- or work-related purposes.
After 30 days, you are eligible to regain your full driving privileges. You can achieve this by paying a $100 restoration fee to the clerk of court in the county in which you were charged. The clerk will then return your license to you and your privileges to drive are fully restored pending the outcome of your case. As part of the service we provide, we can process your filing fee and retrieve your license without requiring you to make a trip to the courthouse.
What am I facing? What are the punishments I can expect to receive if I am convicted of driving while impaired?
A DWI conviction in North Carolina has far-reaching effects both in criminal court and with the Division of Motor Vehicles.
If you are convicted in court, the judge will conduct a sentencing hearing. During the hearing, the judge will weigh factors that either aggravate or mitigate your sentence. These factors can be found in NCGS § 20-179.
Once the judge evaluates these factors, the judge will determine the level at which you are sentenced. The levels are graded from Level 5, the least severe, to Level A1, the most severe. The punishments of these levels are found in NCGS § 20-138.1.
The most significant factor the judge will look at is prior DWI convictions. If you have a prior conviction within seven years, a conviction in your current case will lead to mandatory jail time or in lieu of jail time, mandatory time in drug and alcohol treatment. Any conviction will lead to fines, community service, probation and alcohol classes as recommended by your substance abuse assessment.
Once convicted, your license will be seized by the court and the DMV will be notified. You will receive a mandatory revocation from the DMV. The length of the revocation will depend upon your prior record but will be for at least one year. During this revocation, you may be eligible for a limited driving privilege. We will obtain this limited driving privilege for you as part of our representation.
Your automobile insurance rates will increase significantly. The current insurance rate points system calls for a potential 400 percent increase in your insurance rates.
For a first-time offender, your license will be reinstated in one year assuming you have completed all of the conditions of your judgment. This reinstatement is conditional. For three years after your reinstatement, you are subject to a .04 BAC restriction. This mean you may not operate a motor vehicle with a BAC of .04 or greater. If you are caught doing so, your license can be revoked again.
What is the process? What can I expect while my case is pending?
It is impossible to know the proper way that your case should be handled until extensive research of the facts and evidence in your case has been completed. You should be wary of any attorney who tells you that you should plead guilty after having a short conversation with you about your case.
Your case will be initially set for hearing about 30-60 days after you are charged. You will want to speak with an attorney and have one hired before the first court date. During this time period, our attorneys take this opportunity to “debrief” the charging officer. This allows your attorney to ask the officer detailed questions about your arrest. We also will obtain all of the officer’s notes and police reports. If applicable, we will obtain any video taken by the officer.
Only after this thorough research is complete can we determine what approach will be best for your case. We will then meet with you to discuss options and strategy. We will discuss with you the defenses available in your case and the strategy we will use at trial. If applicable, we will thoroughly prepare you to testify in your defense. Generally, we will not ask you to appear in court until your actual trial date.
Due to the court schedule, it is likely that your case will take several months to complete. This is a stressful time for you and we recognize this. We will try to handle your case as expeditiously as possible, but we will want to handle your case when we can obtain the best result. In particular, we will want to make sure that the judge that handles your case is the one who gives you the best opportunity for victory.
Are there defenses in DWI cases?
We often hear from our new clients that they have heard that there is no way to win a DWI and the best thing one can do is just plead guilty. Nothing could be further from the truth.
A majority of the DWI cases we handle at Mason & Rutherford do go to trial.
Some of the defenses that arise regularly in our cases are the following:
- Lack of Reasonable Suspicion: This is an attack on the officer’s lawful authority to stop your vehicle in the first place. Officer’s must have “reasonable suspicion” to do so and cannot be acting just on a hunch or a tip. If the officer lacks reasonable suspicion, the stop of your vehicle is illegal and you therefore are not guilty.
- Illegal/Invalid Checking Stations: More and more, law enforcement officers rely on checking stations or “roadblocks” to stop drivers to investigate for DWIs. The law does allow officers to conduct these checking stations, but they must be conducted within strict rules. If those rules are violated, then the stop of your vehicle may be invalid and therefore you are not guilty.
- Lack of Probable Cause: To have the legal authority to arrest for any crime, officers must possess probable cause to believe that a crime has occurred. Probable cause is evidence “more likely than not” that the crime has occurred. If officers do an incomplete or sloppy investigation, a judge may not feel that the State has proven probable cause exists. If so, the court will find you not guilty.
- Suppression of the Intoximeter or blood results: In every DWI case, the officer will ask that you submit to an Intoximeter (breath) test or blood test to detect alcohol content. This is often the most damaging piece of evidence the State will have to convict you. Often, this result can be suppressed, or excluded, from evidence due to mistakes made by the police or the unavailability of the chemical analyst (the officer doing the test). A recent U.S. Supreme Court decision under the name Melendez-Diaz has made it much more difficult for the State to submit this evidence in court. If the blood alcohol can be suppressed you have a much improved chance of winning your case.
- Factual Innocence: You are presumed innocent! The State in every criminal prosecution is required to establish your guilt beyond a reasonable doubt. The State will try to do so by presenting all the evidence that law enforcement has gathered against you. The job of your criminal defense attorney is to look for, find and present to the court a persuasive argument that the State has failed in that burden and therefore you are not guilty. Skilled, experienced and persuasive attorneys are needed to establish that reasonable doubt.