How Does North Carolina Define A DWI? - Parry Tyndall White
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How Does North Carolina Define A DWI?

How Does North Carolina Define A DWI?

There are two ways to be convicted of driving while impaired in North Carolina. The first is if you operate a vehicle on a public vehicular area with a breath alcohol concentration of .08 or greater. The second way is to operate a vehicle on a public vehicular after having a sufficient quantity of some impairing substance to appreciably impair the driver’s mental or physical faculties. Under the second prong of the statute, the substance that appreciably impairs the mental or physical faculties does not have to be alcohol. It can be a prescription drug, an illegal drug, or some other impairing substance.

In other words, you do not have to have a 0.08 breath alcohol concentration if your faculties are appreciably impaired. At the same time, if you have a 0.08 breath alcohol concentration, you are guilty of driving while impaired, even it your physical or mental faculties are not appreciably impaired.

What Are The Top Misconceptions People Have About Being Arrested For A DWI?

People’s responses to being charged with DWIs run the gamut. What I have found is many people have misconceptions about the law related to driving while impaired. Some people think that getting a DWI is the end of the world, and there is no defense to the charge. That makes sense because the statutes and cases are complicated.

A lot of people are surprised that their breath alcohol concentration registered as high given the amount of alcohol they consumed. Many people are caught up on whether they should have taken a breath test.

Many people think that they are obligated to take roadside, or standardized field sobriety, tests. That is not correct. Many times, people think they have an advantage by not blowing into the breath machine at the station, which may be incorrect.

It is not uncommon for people going through this process to misunderstand the law and what defenses are available.

How Do We Advise Clients Who Want To Plead Guilty To A DWI?

In general, a DWI arrest is only going to happen to you once. A young woman who weighs 110 pounds and cannot believe she blew a .08 after only a couple glasses of wine is unlikely to take any risks with alcohol in the future. I encourage my clients to make every effort to keep a good record clean. I explain the ramifications of a conviction and point-out that pleading guilty guarantees that they suffer all those ramifications.

The more we approach driving while impaired defenses like we would any other serious case, the better we serve our clients. In any other case, we investigate the facts, evaluate the options, and help our clients decide how to plead.

You will not be penalized because we conduct our own investigation and evaluate the case before deciding how to plead. Many cases have defenses, and avoiding a conviction has many great benefits. For most people, that starts with keeping a good record clean of a criminal conviction.

A person who has been convicted of driving while impaired faces significant penalties for a subsequent conviction. Pleading guilty may be the right decision, but only after hiring an experienced criminal defense lawyer to investigate the case, evaluate your options, and help you decide how to respond to the charge.

What Is The Basic DWI Process In North Carolina?

Everything begins with the stop. This point in the process is important, because it is a common challenge to a driving while impaired charge. After the stop, the officer conducts an investigation to determine whether he has probable cause to arrest. If so, the officer takes you to the station (or the hospital in some circumstances) and offers you a breath or blood test.

If you register a breath alcohol concentration of .08 or greater, the officer takes you before a magistrate, who will issue a warrant, set conditions of release, and enter an order revoking your license for thirty days. Most people are released following a driving while impaired charge, but have certain rights to contact with potential witnesses if detained.

A driving while impaired charge is a misdemeanor in most cases and begins in district court. Following the arrest, a magistrate sets conditions of release. Assuming you are released, the court will schedule a first appearance to determine whether you want to hire a lawyer or request court-appointed counsel. Generally, I appear for my clients for this hearing and have the case rescheduled.

The next step is to obtain all documents and recordings related to the police investigation. After reviewing that information, I will attempt to interview the officer and any witnesses to the events leading up to your arrest.

In North Carolina, any person charged with driving while impaired loses the privilege to drive for at least thirty days. After satisfying certain obligations, like obtaining an alcohol assessment and producing proof of valid insurance, you may be eligible for a limited privilege to drive to and from work. After thirty days, most people can regain their licenses by paying a civil revocation fee and keep the license while awaiting trial for the driving while impaired charge.

In our jurisdiction, it is common to reschedule court dates for several months. That allows us to gather any investigative reports and recordings related to the arrest. Blood tests take longer and can cause lengthy delays. Sometimes these delays are beneficial. Other times, we push the cases to trial sooner. Each situation is different so the timing of the case should be part of your conversation with a lawyer defending against a driving while impaired charge.

All misdemeanor driving while impaired cases are tried before a judge initially. If convicted, you have ten days to appeal for a de novo trial before a jury.

What Can You Expect When Released from Jail?

First, meet with a lawyer quickly. In the first court appearance, all the court is concerned about is to determine whether the person qualifies for court appointed lawyer or has hired his own counsel. If he has hired a lawyer, that lawyer can enter an appearance and have the case moved to a new date to start investigating the case.

The first few days are generally a busy time. The person wants to meet with counsel and get paperwork in order to get a limited privilege. That requires him to do an assessment with a licensed alcohol treatment provider, as well.

What Happens To The Driving Privileges At That Time?

If you are arrested, your license will be suspended for thirty days. If you need to drive to work, however, we can get you a limited privilege after ten days to drive back and forth to work, assuming you meet certain requirements. After thirty days, the Clerk of Court will return your license after you pay a civil revocation fee.

Are Occupational or Hardship Licenses Available In North Carolina?

Limited privileges are available if certain conditions are satisfied. For example, if the person is a caterer and has to drive all hours of the night and weekends, judges are generally good about granting privileges, if the person is eligible and convinces the judge that driving is necessary for employment.

Now, it is critical to understand that that privilege means exactly what it says. It is a privilege to drive to work. It does not mean you can go to a movie. A person cannot have any alcohol in his system while driving with a privilege.

Amos Tyndall
Amos Tyndall

Amos Tyndall is a criminal trial lawyer, who represents people accused of serious crimes in state and federal courts throughout North Carolina. He has successfully defended people against a wide range of charges, including vehicular homicides, white collar offenses, and first-degree murder. Amos has taught trial practice with the National Institute of Trial Advocacy and Gerry Spence’s Trial Lawyer’s College and been listed in ©The Best Lawyers in America since 2013.