DWI

North Carolina General Statute 20-138.1 Defines Impaired Driving as follows.

Offense. – A person commits the offense of impaired driving if he drives any vehicle upon any highway, any street, or any public vehicular area within this State:

• While under the influence of an impairing substance; or
• After having consumed sufficient alcohol that he has, at any relevant time after the driving, an alcohol concentration of 0.08 or more. The results of a chemical analysis shall be deemed sufficient evidence to prove a person’s alcohol concentration; or
• With any amount of a Schedule I controlled substance, as listed in G.S. 90‑89, or its metabolites in his blood or urine.

An examination of each of these elements will make the charge easier to understand.

Drives: N.C. Gen. Stat. 20-4.01(25) states that a driver and operator are one in the same.

It defines these two as “a person in actual physical control of a vehicle which is in motion or has the engine running.”  Based on this definition, a person asleep in his car with the engine running is a “driver” and can be convicted of DWI.

Vehicle: N.C. Gen. Stat. 20-4.01(49) defines a vehicle as every device in or upon which a person may be transported or draw upon the open highway except devices used by human power or on a fixed track.

Don’t get excited, however, because the statute further states that a bicycle is considered a vehicle.  Interestingly, 20-138.1(e) makes an exception and states that horses are not a vehicle for purposes of DWI.

Public Vehicular Area: 2006 legislation amended this definition to include, in essence, any place in the state of North Carolina that is used by the public for vehicular traffic, including parking lots of private businesses whether they are open or closed, as well as roads in subdivisions, even if not dedicated to the public.

While Under The Influence of an Impairing Substance: This is generally the section under which prosecutors will proceed in cases where there is no BAC evidence.  This is generally the case in marijuana impairment cases, prescription pill impairment cases, and cases where the motorist refused to submit to a BAC screening test.  To prove this “prong” of the DWI statute, the state will rely entirely on the things highlighted in the “stop”, “initial encounter” and “screening” phases found here.  The stopping officer will give testimony about the motorist’s driving, demeanor, appearance, performance on Standardized Field Sobriety Tests and other factors in an effort to convince the judge that the motorist had consumed a sufficient amount of some impairing substance so as to visibly and appreciably impair his mental and physical faculties.

Alcohol Concentration of .08 or more: When this law was rewritten in 2006 the understanding was that, if a motorist blew a .08 or higher, he was per se guilty of DWI, regardless of the presence of other factors that suggested he was not impaired.  For a few years after that judges ruled in that fashion, convicting anyone who registered a .08.  Since then, case law has been handed down by our appellate courts that states a .08 is not a per se conviction.  Now, many judges want to hear about other factors that may be present in a case.  In some instances judges will find the person not guilty where a person has performed well on Standardized Field Sobriety Tests and their driving was in order, even if they blew a .08 or .09.  The theory is that by the time a person gets to the testing room to submit to a EC/IR II breath test, a significant amount of time may have passed since they were stopped.  In that amount of time, their BAC may have been on the rise from the time they were stopped, which could mean their BAC was actually only a .07 or lower at the time of operation.  Judges sometimes consider this and give the person the benefit of the doubt if other tests suggest they were not impaired.

With Any Amount Of Schedule I: Schedule 1 controlled substances include heroin, morphine, MDMA, Mescaline, Peyote and a large number of other powerful drugs.  Any amount of those substances in a motorist’s system is per se DWI.

Whether  convicted after a bench trial, a jury trial, or after entering a plea of guilty without a trial, the sentencing process is the same.  As of December, 2011, DWI punishment in North Carolina is broken into 6 levels. Aggravated Level 1 (A1) carries the most serious punishment while Level 5 carries the least.

Level 5 Punishment:

• 1 year suspension of driving privilege
• Monetary fine to be determined by the judge, not to exceed $200
• Court Costs
• Minimum of 24 hours, maximum 60 days, in jail
• Must obtain alcohol assessment and any recommended treatment (most judges require this, but even if they don’t it must be done before DMV will issue a new license)

Level 4 Punishment:

• 1 year suspension of driving privilege
• Monetary fine to be determined by the judge and not to exceed $500
• Court Costs
• Minimum 48 hours, maximum 120 days, in jail
• Must obtain alcohol assessment and any recommended treatment (most judges require this, but even if they don’t it must be done before DMV will issue a new license)

Level 3 Punishment:

• 1 year suspension of driving privilege
• Monetary fine to be determined by the judge, not to exceed $1,000
• Court Costs
• Minimum 72 hours, maximum 6 months, in jail
• Must obtain alcohol assessment and any recommended treatment (most judges require this, but even if they don’t it must be done before DMV will issue a new license)

Level 2 Punishment:

• 1 year suspension of driving privilege
• Monetary fine to be determined by the judge, not to exceed $2,000
• Court Costs
• Minimum 7 Days, maximum 1 year, in jail
• Must obtain alcohol assessment and any recommended treatment (most judges require this, but even if they don’t it must be done before DMV will issue a new license)

Level 1 Punishment:

• 1 year suspension of driving privilege
• Monetary fine to be determined by the judge, not to exceed $4,000
• Court Costs
• Minimum 30 days, maximum 2 years, in jail
• Must obtain alcohol assessment and any recommended treatment (most judges require this, but even if they don’t it must be done before DMV will issue a new license)

Level A1 Punishment:

• Monetary fine to be determined by the judge, not to exceed $10,000
• Court Costs
• Minimum 12 months, maximum of 36 months in prison
• Judges can suspend this active sentence and order probation;  however, the defendant must serve a minimum of 120 days in jail before being released on probation.  Once released, as a condition of probation, the defendant must abstain from alcohol consumption for a minimum of 120 days and will be monitored by a continuous alcohol monitoring system.

DETERMINING SENTENCING LEVEL

So how does the court determine in which of the 6 levels to sentence a person?  The court looks at various factors that can be found on form AOC CR-311. There are three categories of factors the court looks at:

Mitigating Factors: These are good things about the defendant or his case.  Mitigating factors are:

• Slight impairment (.09 or less)
• Driving at the time of the DWI was otherwise safe and lawful
• Defendant has an otherwise clean driving record
• Impairment was by lawfully prescribed drugs within the prescribed dosage
• Voluntary submission to an alcohol assessment

Aggravating Factors: These are bad things about the defendant or his case.  Aggravating factors are:

• Gross impairment (.15 or more)
• Especially aggressive or dangerous driving
• Negligent driving leading to a reportable accident
• Conviction of a prior DWI more than 7 years ago
• Driver’s License revoked at time of the DWI for a non alcohol related offense
• Two or more prior 3 point convictions within the preceding 5 years before the offense
• Conviction of speeding at least 30 miles over the legal speed limit
• Passing a stopped school bus

Grossly Aggravating Factors: These are really bad things about the defendant or his case.  Grossly aggravating factors are:

• Prior DWI conviction within the past 7 years (each prior counts as a seperate grossly aggravating factor)
• Driver’s license was revoked at the time of the DWI for a prior alcohol related offense
• Serious injury to another caused by the defendant’s impaired driving
• Having a child less than 18 years old in the car at the time of the offense

The court first will look to determine if any grossly aggravating factors are present.  If there is one grossly aggravating factor, the court will sentence the defendant as a level 2. If there are two grossly aggravating factors, the court will sentence the defendant as a level 1. If there are three grossly aggravating factors, the court will sentence the defendant as an Aggravated Level 1. The presence of a grossly aggravating factor technically negates the presence of any aggravating or mitigating factors.  However, there is a degree of discretion within each level of sentencing. Therefore, even if there are grossly aggravating factors, the presence of aggravating or mitigating factors can play a role in determining how severe the punishment will be within levels A1, 1 and 2.

Next, the court will look to determine if there were any passengers in the car at the time the DWI was committed. If there was a passenger and the passenger fits into one of three categories the court will automatically sentence the defendant as a level 1, regardless of other factors that may be present. This applies if the passenger:

• Is under 18, or
• Has the mental development of a person under 18 years of age, or
• Has a physical disability preventing the unaided exit from the vehicle

If there are no grossly aggravating factors and if there were no passengers as described above, the court will next determine the existence of aggravating and mitigating factors.  If there are more aggravating factors than mitigating factors, the court will sentence the defendant as a level 3.  If there is the same number of aggravating factors and mitigating factors, the court will sentence the defendant as a level 4.  If there are more mitigating factors than aggravating factors, the court will sentence the defendant as a level 5.

If you take a moment to read all that goes into charging a person with DWI in Duplin or Sampson County, it is easy to see there are many angles from which to attack the case.  The most fruitful area for defending DWI cases is suppressing certain aspects of the process.  When evidence is suppressed the court is saying the prosecution is not allowed to enter that evidence at trial.  Suppress enough evidence, or the right evidence, and the prosecution will not be able to make their case. Suppressions generally fall into one of three categories.

Suppress the stop:  This is generally done in one of two settings.  In checkpoint cases, a thorough exploration of how the checkpoint was set up, what its purpose was, and the paperwork that supports these things must be conducted.  If the checkpoint was not set up and executed pursuant to rather stringent case law, the stop that took place at that checkpoint should be suppressed.  Any evidence gathered as a result of an improper checkpoint is also inadmissible.  Secondly, if an officer stops a motorist without a reasonable, articulable suspicion that criminal activity is taking place the stop should be suppressed.   Most traffic stops take place because the officer believes the motorist has violated an actual traffic law.  In those cases, suppression is generally not possible.  But when the reason for the stop is something short of an actual traffic violation, it becomes very important that an attorney conduct interviews with the officer, view any in car video, and conduct whatever other investigation is necessary to determine whether the reasonable suspicion standard is met by the situation.  If this investigation concludes that no such suspicion was present, the evidence should be suppressed and the case dismissed.

Suppress Standardized Field Sobriety Tests (SFSTs): The National Highway Traffic Safety Administration (NHTSA) has developed three standardized tests for officers to use to help establish probable cause for DWI arrest.  The NHTSA’s SFSTs manual lays out in precise detail the manner in which each of these tests must be conducted in order for them to be reliable as indicators of impairment.  Most officers are not trained to administer these tests properly, and even those that are so trained don’t always take the time to administer them as trained.  Some courts in the United States have held that administering these tests in a manner not in full compliance with the NHTSA standards precludes their use at trial as indicators of impairment.  In many cases, convincing a court to suppress the SFSTs will also result in the BAC test being suppressed, as the BAC test can only be administered after an arrest based on probable cause.

• Suppress the EC/IR II or blood results: Every motorist in North Carolina, by virtue of operating a vehicle in this state, consents to subject themselves to BAC tests when charged with certain “implied consent” offenses. Implied consent, however, does not give officers carte blanche when administering the BAC test.  Very specific procedures must be followed in the administration of these tests.  In each case the officer must:
  Give the motorist Intoxilyzer rights orally and in writing.
• Have a current certification to operate the testing instrument.
• Conduct the tests in accordance with procedures established by the Department of Health and Human Services
• Observe the motorist for 15 minutes before conducting the test (this is part of the machines operations manual itself, not a requirement of law).
  Failure to perform these and other specific steps could result in a court suppressing the results of the test.

Another area often used to defend DWI cases doesn’t deal with suppression but instead uses the results of the officer’s SFSTs in the motorist’s favor.  In particular, when a motorist blows a relatively low number on the EC/IR II, (usually .08 or .09), but performed well on all the SFSTs the court can often be convinced to find the motorist not guilty.  The argument is generally that since the EC/IR II tests is administered some time after operation (often as much as an hour later) and the blow is low, it is conceivable that the motorist’s BAC was still going up.  Therefore, if the motorists performed well on the SFSTs (which were administered at much closer temporal proximity to operation of the vehicle) then it is likely that at the time the motorist was driving that his BAC was actually below the threshold of .08.  Sometimes this works, sometimes it does not.

A lot goes into building a DWI case against a motorist. One aspect of the process is to determine the motorist’s Blood Alcohol Concentration (BAC). There are three different tests that officers can use to determine a motorist’s Blood Alcohol Concentration.

Alco-Sensor/ Portable Breath Tester (PBT): The PBT is exactly what it purports to be, a portable, hand held device used for testing the alcohol concentration of a motorist’s breath.  This device is used prior to arrest and is another method for officers to confirm or dispel their suspicion of impairment.  The number produced by the PBT (eg .09) is not admissible at trial, but the fact that the device gave a positive reading for the presence of alcohol is admissible.

EC/IR II Test: The EC/IR II is the machine most commonly used in North Carolina to determine the BAC of a motorist charged with DWI.  The EC/IR II is used after a motorist has already been charged with DWI.  This instrument is used to produce an actual numerical value that represents the motorist’s level of impairment.  The  result is produced as a percentage of alcohol in the motorist’s blood in decimal form, .09, .13 etc.

Blood Draw: There are any number of reasons that an officer may request a blood draw to determine BAC.  The motorist may be too intoxicated to perform the EC/IR II test or he may have been in an accident that has left him incapacitated and hospitalized.  An officer can even compel a blood draw if the motorist refuses to submit to a BAC test.    The blood is catalogued as evidence and sent to the SBI lab for testing.

If the motorist’s BAC is found to be .08 or above (or .04 or above for a commercial driver), he or she can be convicted of DWI – regardless of whether his or her driving abilities were actually impaired at all. This is referred to as a “per se” DWI.

A lot goes into building a DWI case against a motorist. One of the tools law enforcement officers use is Standardized Field Sobriety Tests (SFSTs).

The National Highway Safety Administration (NHTSA) has established that there are three SFSTs that, when administered properly, are reliable indicators of impairment. They are:

Walk and Turn Test: In this test, the motorist is given specific instructions on walking a straight path, heel-to-toe, for nine steps and then stop.  He is instructed to then turn and repeat. This test is designed to test the motorist’s ability to hear, process and carry out instructions, while at the same time testing his physical abilities.  The officer will look for, and record, missteps, using arms for balance, taking too many or few steps, stopping while walking, can’t balance during instruction phase,trouble turning and other clues.  Research has shown that when a test taker exhibits two or more of these clues, or can’t complete the test, his BAC is above .10, 68% of the time.

One Leg Stand Test: In this test the officer will instruct the motorist to stand with his feet together and to raise either leg approximately 6 inches off the ground when instructed.  He will further instruct the motorist to count out loud until told to stop.  The officer is trained to clock the stand to last 30 seconds because research has shown that many intoxicated subjects can balance 25 seconds, but very few can balance for 30 seconds.  During this test, the officer looks for and records such things as swaying, using arms for balance, hopping, and putting the foot down before instructed to do so.  Research has shown that when a test taker exhibits two or more of these clues, or can’t complete the test, his BAC is above .10, 65% of the time.

Horizontal Gaze Nystagmus (HGN): NHTSA indicates that the HGN test is the most accurate of the three SFSTs, when preformed correctly.  However, it is also the most difficult test to conduct correctly and actually requires the state to call an expert to testify at trial as to the proper method of performing the test.  During the HGN, an officer uses some object, usually a pen, and places it between 12 and 15 inches from the motorist’s nose.  The officer then moves the pen back and forth and instructs the motorist to follow the pen with his eyes only.  The officer is looking for when nystagmus, or involuntary jerking of the eyes, takes place.  The sooner this jerking takes place from the center point, the more intoxicated the person is believed to be.  There are a total of six points that officers are trained to look for.  Original research has shown that if 4 of the 6 clues are present there is a 77% chance that the person has a BAC over .10.

Research has further shown that combining the results of a properly administered HGN and walk and turn test will result in pinpointing persons with a BAC over .10 80% of the time.  A Florida study concluded that using all three tests properly resulted in a correct decision to arrest 95% of the time.

Officers will often use other tests that are not reliable indicators of impairment. Those tests include:

• Requiring the motorist to count forwards and backwards
• Requiring the motorist to recite the alphabet and stop at a certain letter
• Requiring the motorist to tilt his head back and touch his finger to his nose
• Requiring the motorist to close his eyes, tilt his head back and internally count to 30

There are several different types of revocations associated with DWI charges and convictions.  It is important to know about these revocations if you are charged with DWI in Duplin County or Sampson County.  Driving during one of these periods of revocation can cause major problems.  In certain situations, a limited driving privilege can be obtained during the period of revocation.

Pre-trial Civil Revocation: A person charged with DWI is brought before a judicial official, usually a magistrate.  That judicial official is required to complete a civil revocation form if one of the following is present:

• The person willfully refused to submit to chemical analysis
• The person had a blood alcohol concentration of .08 or higher at a relevant time after driving
• The person had a blood alcohol concentration of .04 or higher at a relevant time after driving a commercial motor vehicle
• The person had any alcohol concentration at a relevant time after driving if under the age of 21

If any of these are present, the clerk of court will notify DMV and the person will lose his driving privilege for 30 days.  If the case involves a blood draw, the 30 day civil revocation will not go in to effect until after the blood results are returned from the lab.  The person is eligible to pay a reinstatement fee at the end of the 30 day period and get his full license back except in the cases of willful refusal.  If the person is a CDL holder, at some time during this 30 day civil revocation he will receive notice from DMV that his CDL is being disqualified for a period of one year, regardless of whether he was driving a commercial vehicle.

Revocation Upon Conviction: On the date of conviction of DWI, DWI in a commercial motor vehicle or driving after consuming under 21, the person will lose his license for at least one year.  For second and third offenses of DWI the revocation period may be even longer and could be permanent.  Once the revocation period has passed and upon payment of a reinstatement fee the person is generally able to get a full license.  However, the person will often be subjected to a .04 BAC restriction or in some cases a .00 BAC restriction for a set period of time.

Revocation Upon Willful Refusal to Submit to Chemical Analysis: Everyone who operates a motor vehicle in the state of North Carolina, by virtue of that operation, “impliedly consents” to subject themselves to chemical analysis of their breath, blood or urine when suspected of driving while impaired.  Failure to submit to such tests is considered a refusal and results in a one year license revocation, REGARDLESS of the ultimate outcome in the case.  Upon final disposition of the underlying offense, and the passage of 6 months from the time of the charge, the person can apply for a limited driving privilege.

A charge of DWI triggers a pretrial civil revocation of a motorist’s driving privilege by DMV.  Conviction of DWI triggers a separate 1 year license revocation.

In many instances, Ludlum Law Firm can obtain a “Limited Driving Privilege” (LDP) for people who are subjected to these suspensions.  A LDP is available in the following time periods:

• After 10 days of the initial 30 day pretrial civil revocation
• After 6 months and final disposition of the case in cases of willful refusal
• On the date of conviction for Level 3, 4 or 5 DWI offenders, assuming their BAC was not .15 or higher
• 45 days after conviction for level 3, 4, or 5 DWI offenders if BAC was .15 and upon installation of ignition interlock

In order to qualify for a privilege after conviction of DWI, certain criteria must be met:

• Defendant must have been punished as level 3, 4, or 5 DWI offender
• At the time of the offense the person held a valid license or a license that had been expired less than one year
• The defendant must not have been convicted of an impaired driving offense within 7 years of the commission of this offense
• Subsequent to the offense, the person was not convicted of or did not have an unresolved case involving impaired driving

To qualify for a LDP the person must have obtained an alcohol assessment and must also provide a DL-123 proof of insurance.

A LDP allows the person to drive between 6 A.M. and 8 P.M. for specific purposes such as work, maintenance of his household, education, court ordered treatment and court ordered community service.  Driving outside the statutory hours is allowed upon a showing that it is required for one of the permitted purposes.

In recent years, North Carolina law has become increasingly intolerant of people who receive second and subsequent DWI convictions.  Conviction of a second DWI within a 7 year period will subject a defendant to a minimum of 7 days in jail and as much as 2 years in prison.  Conviction of three DWIs in a 10 year period will qualify a defendant for habitual DWI punishment.  Receipt of a fourth DWI during that 10 years will bump the punishment up to a felony and subject the defendant to a minimum, mandatory active sentence of 12 months.

In addition, subsequent DWIs can impact a defendant’s driving privilege as follows:

• 2nd DWI (within 3 years): 4 year license revocation
• 3rd DWI (within 5 years): minimum 1 year license revocation
• 4th DWI (within 7 years): mandatory permanent license revocation

Multiple DWIs also subject defendants to blood alcohol restrictions.  A person with 2 prior DWI convictions is not allowed to drive with any amount of alcohol in his system.

Finally, a person who is charged with DWI at a time when his license is suspended for a previous DWI will have his vehicle impounded and seized, not to be returned.  In some cases a lien-holder of the vehicle can file the proper paperwork to have the vehicle turned over to them.  However, the motorist will lose the vehicle forever.

DWI charges are very serious and can result in substantial fines, loss of driving privilege and even jail time.  The most severe non fatality DWI punishment is Habitual DWI.  A habitual DWI offender is one who receives a 4th DWI conviction during a 10 year period.  DWIs are generally misdemeanors.  Habitual DWI is a felony and it carries a mandatory active term in prison of at least 12 months.  Depending on the defendant’s record, he could face nearly 5 years in prison for conviction of Habitual DWI.

There is a lot that can be done to assist a person charged with Habitual DWI in Duplin County or Sampson County.  Though the punishments are severe, judges are allowed a wide degree of discretion in Habitual DWI sentencing.  Pretrial alcohol treatment is one of the many ways that a person can reduce his prison exposure when charged with Habitual DWI.  Ludlum Law Firm will work to find you the help you need to overcome any alcohol dependence you may have.  In addition, we can evaluate your case and determine what, if any,defenses you may have and advise you on how best to proceed with your case.

North Carolina General Statute 20-138.3 holds that it is unlawful for a person under 21 to operate a vehicle in the state while consuming alcohol or at any time while he has remaining in his body any amount of alcohol.

So, whereas motorists over the age of 21 can have a BAC as high as .07 (with a few exceptions) and still legally operate a motor vehicle (again, with a few exceptions), motorists under the age of 21 violate 2-138.3 if they register any BAC at all.  This is a class 2 misdemeanor and can result in jail time as well as loss of license.  If a person otherwise meets the elements of DWI, he may be charged with that in addition to underage DWI.

There are a number of things that Ludlum Law Firm can do to assist you if you are  charged with this offense in Duplin County or Sampson County.  First, in certain situations, some judges will enter a Prayer For Judgment (PJC) upon completion of certain alcohol treatment classes.  The effect of the PJC is that you will not lose your license and the charge will not be entered as a conviction against you.  We can assist you in signing up for the proper class to insure you are granted the PJC.

If a PJC is not an option, the law also allows for a person age 18,19 or 20 years old at the time of the offense to receive a limited driving privilege.  We can draft the application for this privilege, have it signed by a judge, and submit it on your behalf to DMV.

North Carolina General Statute 20-138.3 holds that it is unlawful for a person under 21 to operate a vehicle in the state while consuming alcohol or at any time while he has remaining in his body any amount of alcohol.

So, whereas motorists over the age of 21 can have a BAC as high as .07 (with a few exceptions) and still legally operate a motor vehicle (again, with a few exceptions), motorists under the age of 21 violate 2-138.3 if they register any BAC at all.  This is a class 2 misdemeanor and can result in jail time as well as loss of license.  If a person otherwise meets the elements of DWI, he may be charged with that in addition to underage DWI.

There are a number of things that Ludlum Law Firm can do to assist you if you are  charged with this offense in Duplin County or Sampson County.  First, in certain situations, some judges will enter a Prayer For Judgment (PJC) upon completion of certain alcohol treatment classes.  The effect of the PJC is that you will not lose your license and the charge will not be entered as a conviction against you.  We can assist you in signing up for the proper class to insure you are granted the PJC.

If a PJC is not an option, the law also allows for a person age 18,19 or 20 years old at the time of the offense to receive a limited driving privilege.  We can draft the application for this privilege, have it signed by a judge, and submit it on your behalf to DMV.