Common Questions and Helpful Answers About NC Criminal and DWI Charges

It is natural to have many questions and concerns when charged with a crime in North Carolina. These charges can have serious consequences and long-lasting effects on those charged with their families, so they need reliable answers quickly. Here, Todd Browning and Howard Long share their answers to many of these tough questions. Find out their thoughts on DWI, traffic charges, and many other crimes.

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  • How do police decide who to stop for drunk driving in Charlotte?

    Police officers in Mecklenburg County and North Carolina Highway Patrol are trained to look for numerous visual clues and driver behavior patterns when deciding whether to make an investigative stop of a drunk driving suspect. These visual clues, identified by a National Highway Traffic Safety Administration (NHTSA) study on impaired drivers, help officers determine if there is enough reasonable suspicion to justify pulling you over for DWI.

    Outside of DUI checkpoints, police must have reasonable suspicion to legally stop you for drunk driving. 

    How Police Determine Reasonable Suspicion for a DWI Stop

    The visual clues identified by the NHTSA fall into one of the following four categories:

    1. Problems Maintaining Proper Lane Position
    2. Speeding and Braking Problems
    3. Vigilance Problems
    4. Judgment Problems

    Visual clues used to identify Problems Maintaining Proper Lane Position include:

    • Weaving within a lane
    • Weaving across lane lines
    • Straddling a lane line
    • Swerving
    • Turning with a wide radius
    • Drifting
    • Almost striking a vehicle or other object

    Visual clues used to identify Speeding and Braking Problems include:

    • Stopping problems (too far, too short, too jerky)
    • Accelerating or decelerating for no apparent reason
    • Varying speed
    • Slow speed (10+ mph under limit)

    Visual clues used to identify Vigilance Problems include:

    • Driving in opposing lanes or wrong way on one way
    • Slow response to traffic signals
    • Slow or failure to respond to officer’s signals
    • Stopping in lane for no apparent reason
    • Driving without headlights at night
    • Failure to signal or signal inconsistent with action

    Visual clues used to identify Judgment Problems include:

    • Following too closely
    • Improper or unsafe lane change
    • Illegal or improper turn (too fast, jerky, sharp)
    • Driving on other than designated roadway
    • Stopping inappropriately in response to officer
    • Inappropriate or unusual behavior (throwing up, arguing)
    • Appearing to be impaired

    If an officer observed you exhibiting any of these behaviors, he may be legally justified in stopping you for drunk driving, but not always. For example, if you make an illegal turn, you have likely violated the law and an officer is likely justified in stopping you on that fact alone. On the other hand, if you were weaving within your own lane only, an officer is not likely going to be justified in stopping you. When a DWI stop is based on the driver weaving within a lane, North Carolina law generally requires weaving within a lane plus some other fact in order for an officer to make a stop.

    Find Out if Your Charlotte DWI Could be Dropped

    If an officer did not have a legal justification for pulling you over, it may be possible to have your drunk driving charge dismissed based on that lack of reasonable suspicion. If you have been arrested for DWI in the Charlotte metro area, contact our Mecklenburg County DWI attorneys at Browning & Long, PLLC for a free consultation to evaluate your case and assist in making this determination.

     

  • Will my NC driver’s license be suspended if I refuse to blow or if I'm arrested for DWI?

    It depends. There are numerous instances where your driver's license will be revoked by North Carolina’s Division of Motor Vehicles (DMV) for issues involving or related to driving under the influence. The most common scenarios where the DMV will revoke your driver’s license is when you (i) willfully refuse to submit to chemical analysis (i.e. breath or blood test), (ii) are charged with and/or arrested for driving under the influence, or (iii) are convicted of driving under the influence.

    License Suspension for Willful Refusal to Breathalyzer or Chemical Testing

    The laws of most states, including North Carolina, highly encourage a person suspected of driving under the influence to submit to chemical analysis (i.e. breath or blood test). Such laws do so through the consequences implemented when a person refuses such testing. Specifically, North Carolina General Statute (N.C.G.S.) 20-16.2(a)(1) informs a driving under the influence suspect that they may refuse any chemical test, but doing so will result in their driver’s license being revoked for a period of one year, and in some cases even longer.

    This often means that if you refuse a chemical test, your driver's license will be revoked for one year. It's important to know the difference between the various breath-testing instruments and the consequences of refusing to blow in these devices. For example, an alcohol screening test, often referred to as a Preliminary Breath Test (PBT), is a breath test that is typically administered roadside before you are arrested. Refusing to submit to this test is not considered a willful refusal and will not revoke your driver's license for a period of one year. Thus, an alcohol screening test is not considered a chemical test for this purpose. However, a breath test using the Intoxilyzer 5000 or Intox EC/IR II, as well as a blood draw, are considered chemical tests. If you refuse to submit to these tests, your driver's license may be revoked for a period of one year. The Intoxilyzer 500 and Intox EC/IR II are generally administered after you have been arrested and left the scene.

    License Suspension After Being Charged and/or Arrested for DWI

    Under North Carolina General Statute (N.C.G.S.) 20-16.5(b), a person driving under the influence is subject to civil revocation of their driver’s license if the following applies:

    1. A law enforcement officer has reasonable grounds to believe that the person has committed an implied consent offense;
    2. The person is charged with an implied consent offense;
    3. The law enforcement officer and the chemical analyst comply with the procedures of G.S. 20-16.2 and G.S. 20-139.1 in requiring the person's submission to or procuring a chemical analysis; and
    4. The person
      • Willfully refuses to submit to the chemical analysis;
      • Has an alcohol concentration of 0.08 or more within a relevant time after the driving;
      • Has an alcohol concentration of 0.04 or more at any relevant time after the driving of a commercial motor vehicle; or
      • Has any alcohol concentration at any relevant time after the driving and the person is under 21 years of age.

    When your driver's license is revoked under N.C.G.S. 20-16.5(b), the minimum period of revocation is either 30 or 45 days depending on when your driver’s license was surrendered. If your driver’s license is surrendered within five (5) working days of the revocation (generally the day you were charged), the minimum revocation period is 30 days. If your driver’s license is not surrendered within five (5) working days of the revocation, the minimum revocation is generally 45 days from the date you surrender your driver’s license. Additionally, if you have a pending driving under the influence charge or other implied consent offense, your driver's license will be suspended indefinitely until all pending charges are resolved.

    License Suspension After a Drunk Driving Conviction

    A conviction for driving under the influence results in a mandatory revocation of a person’s driver’s license by the North Carolina Division of Motor Vehicles (DMV) under North Carolina General Statute (N.C.G.S.) 20-17(a)(2). The length of such driver’s license revocation largely depends on whether you have any prior impaired driving convictions, and if so, the amount of time that has passed since those convictions.

    More information: License Revocation and Restoration After a DWI Conviction in Mecklenburg County

    Contact Our Charlotte DWI License Restoration Lawyers

    If your driver’s license has been revoked due to one of the three common scenarios discussed under this question, it is important to remember that there are often circumstances where a you may be able to legally drive with a limited driving privilege. The attorneys at Browning & Long, PLLC can assist you in getting you back on the road as soon as possible.

  • What factors will the court consider when sentencing me for a DUI conviction in Mecklenburg County?

    If you have been convicted of DUI in Mecklenburg County, the level of punishment of you will face is determined by the existence and balancing of what are called grossly aggravating factors, aggravating factors, or mitigating factors. 

    Grossly Aggravating Factors for DUI Sentencing

    Grossly aggravating factors are seen as more serious than aggravating factors. The State must prove any grossly aggravating factor beyond a reasonable doubt. With that, the first step in determining the level of punishment you will face if convicted of DUI is to find out whether any grossly aggravating factors exist.

    Four grossly aggravating factors:

    1. A prior conviction for a DUI related offense (See N.C.G.S. 20-4.01(24a) for the list of offenses) if:
      • the prior conviction occurred within seven years of the current DUI offense date;
      • the prior conviction occurred after the current DUI offense date, but before or at the same time as the sentencing in the current DUI case; or
      • the prior conviction was in District Court, the conviction was appealed to Superior Court, the appeal was withdrawn or the case was remanded back to District Court, and a new sentencing hearing for the case has not been held.
    2. At the time of the current DUI offense, you drove while your driver’s license was revoked and the revocation was for a DUI revocation under N.C.G.S. 20-28.2(a).
    3. Your DUI caused serious injury to another person.
    4. At the time of the current DUI offense, you drove while:
      • A child under the age of 18 years was in the vehicle
      • A person with the mental development of a child under the age of 18 years was in the vehicle; or
      • A person with a physical disability preventing unaided exit from the vehicle was in the vehicle.

    Aggravating Factors for DUI Sentencing

    As mentioned, aggravating factors are considered less serious than grossly aggravating factors. However, like grossly aggravating factors, the State must prove any aggravating factor beyond a reasonable doubt. When there are no grossly aggravating factors, or where grossly aggravating factors exist but the judge decides to consider any aggravating and mitigating factors as well, the next step in DUI sentencing is to determine whether any aggravating factors exist.

    Nine aggravating factors:

    1. Gross impairment of your faculties while driving or an alcohol concentration of 0.15 or more.
    2. Especially reckless or dangerous driving.
    3. Negligent driving that led to a reportable accident.
    4. Driving while your driver's license was revoked.
    5. Two or more prior convictions of certain motor vehicle offenses for which at least three points are assigned or which subject your driver’s license to revocation, if the convictions occurred within five years of the current offense, or one or more prior convictions of an offense involving DUI that occurred more than seven years before the current offense.
    6. Conviction under N.C.G.S. 20-141.5 of speeding to elude.
    7. Conviction under N.C.G.S. 20-141 of speeding by at least 30 miles per hour over the legal limit.
    8. Passing a stopped school bus in violation of N.C.G.S. 20-217.
    9. Any other factor that aggravates the seriousness of the offense.

    Mitigating Factors for DUI Sentencing

    After determining whether any aggravating factors exist, the next step in determining the appropriate level of punishment in DUI sentencing is to see if any mitigating factors exist. It is your burden to prove the existence of any mitigating factor by a preponderance of the evidence.

    Eight mitigating factors:

    1. Slight impairment of your faculties resulting solely from alcohol, and an alcohol concentration that did not exceed 0.09 at any relevant time after the driving.
    2. Slight impairment of your faculties, resulting solely from alcohol, with no chemical analysis having been available to the defendant.
    3. Safe and lawful driving at the time of the offense, except for the DUI.
    4. A safe driving record.
    5. Impairment caused by a lawfully prescribed drug for an existing medical condition, and the amount of the drug taken was within the prescribed dosage.
    6. Voluntary submission to a substance abuse assessment and voluntary participation in the recommended treatment.
    7. Completion of a substance abuse assessment, compliance with its recommendations, and simultaneously maintaining 60 days of continuous abstinence from alcohol consumption, as proven by a continuous alcohol monitoring system.
    8. Any other factor that mitigates the seriousness of the offense.

    DUI/DWI Sentencing Levels of Punishment

    The determination of the appropriate DWI sentencing level of punishment involves balancing the presence of any grossly aggravating factors, aggravating factors, and mitigating factors mentioned above. The chart below summarizes the six sentencing levels and the corresponding punishments authorized by N.C.G.S. 20-179.

    Aggravated Level One

    Factors Fine Probationary Conditions
    Three or more grossly aggravating factors Up to $10,000 If suspended, must require 1-imprisonment of at least 120 days; AND 2-alcohol abstinence of at least 120 days to a maximum of the term of probation, as verified by CAM.
    Imprisonment: 12 months minimum to 36 months maximum
    Substance Abuse Assessment Required: Yes

    Level One

    Factors Fine Probationary Conditions
    1. Grossly aggravating factor in N.C.G.S. 20-179(c)(4); OR
    2. Two other grossly aggravating factors
    Up to $4,000 If suspended, must require 1-imprisonment of at least 30 days; OR 2-imprisonment of at least 10 days and alcohol abstinence and CAM for at least 120 days
    Imprisonment: 30 days minimum to 24 months maximum
    Substance Abuse Assessment Required: Yes

    Level Two

    Factors Fine Probationary Conditions
    One grossly aggravating factor Up to $2,000 If suspended, must require 1-imprisonment of at least 7 days; OR 2-alcohol abstinence and CAM for at least 90 days
    Imprisonment: 7 days minimum to 12 months maximum
    Substance Abuse Assessment Required: Yes

    Level Three

    Factors Fine Probationary Conditions
    Aggravating factors substantially outweigh any mitigating factors Up to $1,000 If suspended, must require one or both of the following: 1-imprisonment for at least 72 hours 2-community service for a term of at least 72 hours
    Imprisonment: 72 hours minimum to 6 months maximum
    Substance Abuse Assessment Required: Yes

    Level Four

    Factors Fine Probationary Conditions
    No aggravating or mitigating factors or aggravating factors are substantially counterbalanced by mitigating factors Up to $500 If suspended, must require one or both of the following: 1-imprisonment for 48 hours 2-community service for a term of 48 hours
    Imprisonment: 48 hours minimum to 120 days maximum
    Substance Abuse Assessment Required: Yes

    Level Five

    Factors Fine Probationary Conditions
    Mitigating factors substantially outweigh aggravating factors Up to $200 If suspended, must require one or both of the following:
    1-imprisonment for 24 hours
    2-community service for a term of 24 hours
    Imprisonment: 24 hours to 60 days maximum
    Substance Abuse Assessment Required: Yes

     

    Contact Our Charlotte DUI Lawyers if you have questions regarding a DWI arrest in Mecklenburg County by calling 980-224-4482.

     

  • What is a no contest (“nolo contendere”) plea and how does it differ from other pleas in criminal cases in North Carolina?

    Which Plea Is Right for You?If you are charged with a crime in North Carolina, you will have to decide what plea to enter to the charges. How you plead can have important consequences both in your criminal case and life in general because a conviction will result in you having a permanent criminal record. One option that some people choose when entering into a plea agreement or entering a plea other than a plea of not guilty is to plead no contest—also referred to as nolo contendere—instead of guilty. Here, we explain what a no contest plea is and the benefits of entering this plea.

    What Is a No-Contest Plea?

    You have several choices of pleas that you can enter in your criminal case. These include the following:

    • Not guilty
    • Guilty
    • No contest
    • Alford plea

    In many criminal cases, a person will start out by pleading not guilty and then change his plea to guilty later if he enters into a plea agreement.

    Depending on your situation, it could be in your best interest to not plead guilty and instead enter a no contest plea or an Alford plea when resolving your case. A no-contest plea in North Carolina is a plea where a person does not admit or dispute the charges against him and has the same effect as a guilty plea in terms of sentencing. However, a person is not admitting legal responsibility for the incident.

    What would be the benefit of pleading no contest instead of guilty? Important advantages to this plea include:

    • If you plead no contest, your plea cannot be used against you in a civil action filed by any victim who suffered injuries due to your actions. This is the biggest advantage of this plea and can be important if you caused a car accident resulting in a person’s injury or death, injured someone in an assault, or shot someone. In contrast, if you pled guilty, your plea could be used against you as an admission of fault in a civil case and increase the likelihood that you will owe compensation to the victim.
    • You avoid the attorney fees associated with taking your criminal case to trial.
    • If you are entering this plea as part of a plea agreement, the charges against you and the sentence you face may be reduced.

    Another Option: An Alford Plea

    While not all states allow people to enter an Alford plea, you are permitted to do so in North Carolina. If you enter this plea, you are maintaining your innocence but are admitting that the state has sufficient evidence to convict you and agree to accept the punishment. Unlike a no contest plea, you are essentially pleading guilty while still maintaining your innocence. This plea may seem contradictory, but it was ruled permissible by the U.S. Supreme Court in 1970 in a criminal case in our state, North Carolina vs. Alford.

    Like a plea of no contest, an Alford plea may be beneficial if you believe that you face civil liability as well as criminal charges, as your plea may not be allowed to be used against you in the civil case. You must obtain the approval of the prosecutor and judge to enter into a no contest or Alford plea.

    How Should You Decide Which Plea Is Right for You?

    You should never decide on entering a plea without first consulting with an experienced criminal defense attorney who can advise you on what the best option is. This is especially true when you are considering a no contest or Alford plea to avoid civil liability. In addition, your attorney may be able to raise defenses to the charges—even if you know that you are guilty—that could result in the charges being dismissed or reduced to a lesser offense.

    If you are a suspect or have been charged with a crime, the experienced criminal defense attorneys at Browning & Long, PLLC are here to help you build a strong defense to the charges you face. Call our office today to schedule a free consultation to learn how our experiences as former prosecutors and criminal defense attorneys can be beneficial to you.

     

  • How can I help my attorney in my criminal case?

    When you are facing any criminal charges—even traffic or misdemeanor offenses—you are facing serious consequences that could affect your life down the road. You could have a permanent criminal record that will impact the ability to obtain a job, a professional license, and a loan. If you face felony charges, the penalties are much more severe. So you want to do everything in your case to help reduce the negative consequences.

    Ways You Can Assist Your Attorney With Your Criminal Defense

    You and your attorney are a team. There are many ways that you can take a little control of what can feel like an uncontrollable situation and help your attorney with your defense. This is a way to positively influence what happens in your case. Ways that you can assist your attorney in defending you include:

    • Be honest. Your attorney can only help you if you are honest with him. When he asks you a question, be honest in your answer. Your discussions with him are protected by the attorney-client privilege. Your answers could lead him to possible defenses—even if you are guilty. However, do not freely provide him with information that he does not ask for or confess your guilt. If you retain an experienced criminal defense attorney, he will know what he needs to know and does not want to discuss to best defend you.
    • Discuss your goals. Once your lawyer has investigated your case, he will be able to tell you the strengths and weaknesses of your case and the possible outcomes. You should inform your attorney about your willingness to accept a plea agreement. Similarly, he needs to know if you want to fight your case and take it to trial if necessary.
    • Discuss how much you can pay. You will need to discuss how much the attorney will charge for your defense and what you can afford to pay for expert witnesses, depositions, and private investigators in addition to his fees. This will help your attorney in developing your defense.
    • Provide documents and information promptly. Provide your attorney with any documents, witness’ contact information, and any other information that will help in your defense as soon as possible. If you delay in sharing this information, you make it harder to build a strong defense.
    • Communicate with your attorney. While you should not contact your attorney daily, you want to set a schedule for communicating with your attorney about your case and be in contact with him on those dates. Be certain that your lawyer always has your correct cell phone number, address, and email address so that he can contact you when necessary.
    • Always be on time. You need to be on time for all court hearings and appointments with your attorney. You want to be early for your court hearings to avoid the risk of being late and making a bad impression with the prosecutor and judge, as well as inconveniencing your attorney. You should also dress appropriately for your court hearings.
    • Don’t talk to the police. You should never talk to the police unless you have first discussed this with your attorney and he agrees and is present. Even if the police try to convince you that it is in your best interest to cooperate, it is not—unless it is done on the advice of your attorney.
    • Stay off social media. You can help your attorney—and not hurt your criminal case—by staying off social media while your case is pending. If you must be on social media, do not discuss anything about your criminal case and be extremely careful in what you post. The prosecutor could search your social media postings.
    • Follow your attorney’s advice. You hired your attorney because you thought that he could help you achieve the best possible outcome for your situation. You can help him achieve this goal for you by following his advice. When you do not follow his recommendations, you can weaken your defense and hamper his abilities to defend you.
    • Pay your bills on time. You need to honor your agreement with your attorney and pay your bills on time. Your attorney is providing you with a valuable service. When you pay him late, he may not be able to hire the expert witnesses and private investigators he needs to mount an effective defense.
    Once you retain an experienced criminal defense attorney, he can advise you on the best ways that you can help him. To learn how our legal team can help you to fight the criminal charges you face, call our office or fill out our convenient online form to schedule a free consultation.

     

  • What are common grounds to suppress evidence and how could that help my criminal case?

    Motion to Suppress EvidenceIf you are charged with committing a crime, you need the assistance of an experienced criminal defense attorney to help you fight the charges. An attorney should have strategies based on experience handling similar criminal cases—which may help in getting your charges dismissed or reduced to a crime with a less severe punishment. One important way that an attorney may be able to weaken or destroy the prosecution’s case against you is to file a motion to suppress evidence against you.

    How Can a Motion to Suppress Evidence Help in Your Criminal Case?

    It is critical to keep in mind that you are innocent until proven guilty in a criminal case—even if you know that you are guilty of committing the crime. The prosecution has the burden of proving your guilt beyond a reasonable doubt. This is a very high standard that the prosecutor cannot always meet, including cases where the accused is obviously guilty.

    A motion to suppress evidence is filed to prevent certain pieces of evidence from being used against you in your criminal case. It can help your case in the following ways:

    • If the suppressed evidence is essential to prove the criminal charges against you, its suppression could result in the criminal charges being dismissed.
    • If the prosecutor has other sufficient evidence against you, the charges against you will not be dismissed. However, the suppressed evidence can severely weaken the prosecutor’s case against you and create reasonable doubt—sufficient for you being found not guilty. It could also result in the prosecutor offering you a more favorable plea agreement due to the lack of evidence against you.

    Common Grounds to File a Motion to Suppress Evidence

    In order to successfully file a motion to suppress evidence, you need to have legal grounds to argue that the evidence should be suppressed. These grounds are generally based on police misconduct and violation of your constitutional rights. An experienced criminal defense attorney will be able to identify grounds to file a motion to suppress evidence in your case. Common reasons to file this motion include:

    • Unlawful searches and seizures. Under the Fourth Amendment, you are protected against illegal searches of your home, your property, and yourself. In general, police must have a valid search or arrest warrant or probable cause to believe that a crime was committed to stop, search, or arrest you. If the police did not have a proper warrant or probable cause, the evidence collected that supports the charges against you could be thrown out of court.
    • Failure to give Miranda warnings. Once the police take you into custody, they must inform you of your Miranda rights under the constitution before questioning you further. This includes being advised of the right to remain silent, that any statements can be used against you, and your right to an attorney. If they fail to give you these warnings and you make an incriminating statement or confess to the crime, these statements can be suppressed. In addition, the police could violate your rights by trying to continue to question you after you invoke your Miranda rights.
    • Coerced statements. If the police coerce you into confessing or making a statement, this may be grounds for suppression of your statement.
    • Chain of custody errors. The police are required to follow strict procedures for the handling of and storage of evidence against you. This is to ensure that it is not tampered with or mixed up with evidence in another criminal case. When the police mishandle the evidence or otherwise violate the rules, the evidence can be suppressed.
    • Witness identification. If you were identified in a police lineup, the police may have violated your rights by improperly suggesting that the witness identify you, failing to allow your attorney to attend the lineup, or failing to include other potential suspects in the lineup with a similar appearance. This can be grounds to suppress the witness’ identification—which could be crucial to proving you committed the crime.
    • DUI testing results. There can be many challenges to the tests performed by the police as part of a DUI arrest. This can include violation of the many rules regarding field sobriety tests, improper administration of breathalyzer tests, or calibration problems with testing machines. In addition, many successful challenges to evidence are based on the lack of probable cause to stop the accused in the first place.

    If you are facing criminal charges, our experienced criminal defense attorneys are here to guide you through the criminal process. To learn more about how we can assist you, call our office today to schedule your free consultation.

     

  • What steps should I take if I am stopped for driving while intoxicated?

    There Are Steps That You Can Take When Being Pulled Over for DWI That May Help YouIf you are stopped for driving while intoxicated (DWI), you cannot change the fact that the police are pulling you over or that you may have been drinking before driving. However, there are things that you can do that will protect your rights and make the situation better. There are also actions that you can take that will make what happens next worse. Here, we discuss the best way to handle a police stop when the officer suspects that you have been drinking and driving.

    What Should You Do If the Police Pull You Over for a DWI?

    When you see a police officer’s flashing red lights behind you, you need to find a place to pull over safely. You will want to turn on your turn signal to let the officer know that you are complying and, if possible, pull over on the right side of the road. Here are tips on how to handle the stop in a way that keeps you safe and does not hurt your potential criminal case:

    • Stay in your car. You should stay in your vehicle and turn the engine off. If it is dark outside, turn on your car’s interior light so the officer can see you. Keep your hands on your steering wheel where he can see them.
    • Have your documents available. You want to have your driver’s license, vehicle registration, and proof of insurance readily available to hand to the officer when he requests them. You do not want to be reaching into your glove compartment when he is approaching your car because he will not know whether you are reaching for documents or a weapon.
    • Avoid sudden and suspicious movements. You want to avoid any sudden or suspicious movements that would make the officer feel the situation is dangerous. This is especially important now with all the news stories about police stops where people have been killed or officers randomly attacked. Even an innocent movement, such as leaning forward, could be interpreted as an attempt to hide something under your car seat or to reach for a gun.
    • Be polite and follow instructions. If you are polite and follow the officer’s instructions, your stop will go more smoothly. You are much more likely to be arrested if you are rude or argumentative.
    • Watch what you say. You need to be careful not to make incriminating statements or volunteer information. You should never lie as this can hurt you in court. However, you can be silent except to answer questions regarding your name and address. Politely refuse to answer questions about how much you have been drinking.
    • Do not agree to take a field sobriety test. You have the right to politely refuse to take a field sobriety test. Even if you have had nothing to drink, it is very likely that you will fail these tests. Taking these tests gives the police officer more ammunition against you to claim that you were intoxicated when driving.
    • Decline to perform a portable breath test. You are also not required to take a portable breath test, also referred to as a PBT. These tests are often unreliable, and it is a good strategy to refuse to take one. The police will most likely arrest you, but they will have less incriminating evidence against you.
    • Take the test at the police station. You are obligated to submit to a blood or breath test at the police station. If you try to resist taking it, the police can force you to do so without obtaining a warrant in North Carolina. In addition, you could face additional consequences for refusing to submit to this test.
    • Contact an experienced attorney. As soon as possible after your arrest, you want to retain an experienced criminal defense attorney. He can explain the criminal process to you, build your defense to the charges you face, and fight to get the charges dismissed or reduced so that you face the least possible sentence.

    What Happens If You Did Not Follow All of These Guidelines?

    Most people do not contact an attorney until after they are arrested and may not know how to handle a DWI stop properly. If this is true for you and you did not follow all these steps, this does not mean that you do not have defenses to the DWI charges you face. An experienced criminal defense attorney will have dealt with situations like yours in the past and will know how to minimize the effects of any mistakes you may have made.

    If you were charged with DWI, your best next step is to contact our office as soon as possible to schedule your free consultation to learn how our experienced criminal defense team can help you.

     

  • Can I be charged with DWI as a felony in North Carolina?

    In general, driving while intoxicated (DWI) charges are classified as misdemeanors in North Carolina. However, you should not treat a misdemeanor DWI charge lightly. A DWI misdemeanor conviction can come with heavy penalties, such as a jail sentence, large fines, community service, and DWI Felony Chargessuspension of your driver’s license. You would also have a criminal record for the rest of your life that could impact on your ability to find a job, obtain a loan, and more, so the long-term consequences of a DWI should not be overlooked.

    In addition, DWI misdemeanor convictions could lead to charges of felony DWI or other DWI-related felony charges in certain situations. These are very serious charges, and a conviction can result in even stiffer penalties—including a mandatory prison sentence. If you are charged with any DWI—misdemeanor or felony—you need to contact an experienced criminal defense attorney as soon as possible to guide you through the process and help build your defense. Even if you believe that you are guilty, there could be many defenses in your case that could result in a dismissal of the charges or a reduction to a less serious offense.

    Habitual DWI Felony Charges

    DWI can be a felony in North Carolina, and the offense is habitual DWI. You can be charged with this crime if you were driving while impaired and were convicted of three or more other offenses involving DWI within 10 years of the date of this offense. These offenses include:

    • Impaired driving
    • Habitual impaired driving
    • Impaired driving in a commercial vehicle
    • Death or serious injury by a vehicle that is based on impaired driving
    • Murder based on impaired driving
    • Involuntary manslaughter that involves impaired driving
    • Substantially similar offenses that are committed in other states or possibly another country

    If convicted of this crime, you face a mandatory prison sentence of 12 to 59 months, possible permanent suspension of your driver’s license, and seizure of the vehicle that you were driving when you were arrested if certain requirements are met. You may also be required to go through an alcohol treatment program while in jail in order to be paroled.

    What Other Felony DWI Charges Could You Face?

    Unfortunately, you could be charged with an even more serious felony DWI or a misdemeanor offense if you injured or killed someone when driving while impaired. Some of the charges you could face include:

    • Felony death by vehicle. If you unintentionally killed another person while driving when impaired and the impairment was the proximate cause of the death, you could be charged with felony death by vehicle. This is a Class D felony.
    • Misdemeanor death by vehicle. You could be charged with misdemeanor death by vehicle if you unintentionally killed another person while violating a State or local ordinance governing the operation of a motor vehicle, and this was the proximate cause of the death. A conviction would be a Class A1 misdemeanor.
    • Felony serious injury by vehicle. If you unintentionally caused the serious injury of another person while driving when impaired, you could be convicted of a felony serious injury by vehicle offense if the intoxication was the proximate cause of the injuries. This offense is classified as a Class F felony.
    • Aggravated felony death by vehicle. You could be charged with this offense instead of felony death by vehicle if you were convicted of a crime involving impaired driving within the last seven years. Otherwise, the offenses are the same. This is considered a Class F felony.
    • Aggravated felony serious injury by vehicle. Like aggravated felony death, you could be charged with this if you have a previous conviction of another crime that involved impaired driving within seven years. It is a Class E felony.

    Contact Our Charlotte DWI Attorneys for Help If You Have Been Charged With DWI

    If you have been charged with any DWI offense, you need the assistance of an experienced DWI attorney to reach the best outcome possible. We are former Mecklenburg County Prosecutors and have a better understanding of how the prosecutor may handle your case and what could be necessary to get the charges dropped or reduced to a less serious offense. Call our office today to schedule your free, no-obligation consultation.

     

  • How can I get a misdemeanor drug possession charge dropped in Mecklenburg County?

    In Charlotte, there are a number of different misdemeanor drug possession offenses that a person may be charged with, including possession of marijuana and possession of drug paraphernalia. Being charged with such a crime, or any other misdemeanor drug possession charge, is a serious offense. Simply being charged can potentially impact all areas of your life, from employment, to educational and housing opportunities. If you have been charged with a misdemeanor drug possession offense, it is important to contact an experienced criminal defense attorney at Browning & Long, PLLC to help protect your rights.

    The attorneys at Browning & Long, PLLC will not only help you understand your rights, but will also explore all possible defenses to ensure that you do not face any unnecessary consequences associated with your misdemeanor drug possession charge. This includes investigating every aspect of your case, and using the techniques described below to ultimately get your case dismissed, or dropped.

    Potential Legal Issues with Drug Charges

    If you were charged with a misdemeanor drug crime, do not assume that you are guilty. As former prosecutors, we understand the intricacies of the law and are aware of potential defenses that may be available in your misdemeanor drug case. Specifically, we will examine the following scenarios to ensure the police acted lawfully in charging and/or arresting you. If they did not act lawfully, it is likely that your misdemeanor drug crime will be dropped.

    • Did the police have a lawful reason to stop you?
    • Did the police have a valid reason to search the place or area they did?
    • Were you aware of the illegal item or drug’s presence in the place it was located?
    • Did you have possession of the illegal item or drug the police claim you did?
    • Is the illegal item or drug what the police claim it is?

    Drug Education Class in Charlotte

    If, after thoroughly reviewing your situation, we determine that there are not any available legal defenses in your case, there are still other potential options to ultimately get your misdemeanor drug charge dropped. In certain situations, we can negotiate with the Mecklenburg County District Attorney’s Office to have you complete a drug education class for dismissal of your misdemeanor drug charge. Generally, this drug education class must be completed at a service provider approved by the prosecutor’s office. Exceptions may be made for our clients who reside outside of Charlotte. In either case, the class must be attended in-person and requires 15 hours of instruction. By retaining Browning & Long, PLLC, this all can be accomplished without you ever attending court.

    North Carolina G.S. 90-96 – Conditional Discharge of Drug Charges

    Even if the Mecklenburg County District Attorney’s Office refuses to allow you to complete a drug education class for dismissal of your misdemeanor drug charge, you may be eligible to have your case dismissed through a process known as conditional discharge. While case-specific, this process typically has several requirements, including the following:

    • You either plead guilty or are found guilty of the misdemeanor drug possession offense
    • You not have any prior convictions for certain criminal offenses, including felonies
    • You complete an approved drug education class as directed by the court
    • You satisfy any other requirements set by the court, such as community service and fines
    • You are not charged with any new criminal charges within a designated period of time

    Once you successfully complete the requirements ordered in your case, the judge shall discharge and dismiss the misdemeanor drug charges against you. This dismissal occurs without any judgment of guilt and is not considered a conviction. You are also eligible to file for an expunction, also known as expungement,  of your criminal record, that is the fact that you were charged, under North Carolina G.S. 15A-145.2.

  • Can I Refuse a Breathalyzer Test? Are There Penalties for Refusing to Blow?

    Immedicately following a DWI arrest in Charlotte, the arresting officer will take you to the police station and ask you to blow into a machine, specifically the Intoximeter Model Intox EC/IR II, to determine your blood alcohol concentration (BAC). Although the officers will likely make you feel like you have to blow, you are not required to submit a breathalyzer test. It should be noted that this test differs from the field sobriety tests and preliminary breath tests the officers asked you to submit to on the side of the road. For these, we strongly suggest you refuse them, as the results will only be used against you. 

    By refusing, you could potentially be strengthening your case by not giving the police access to the most incriminating piece of evidence against you in a DWI case; that is, your BAC. However, if you do not provide a breath, blood, or urine sample at this time, it will be considered a refusal.

    What Qualifies as a Refusal in a DWI Case?

    Under North Carolina law, a person will be deemed to have "willfully refused" if he or she has been asked to submit to a chemical analysis such as a breath, blood, or urine sample and has been advised of his or her right to refuse the test, does not provide a sample, or allows the prescribed time limit in which the test must be taken to expire.

    The most common refusal is when a person simply declines to blow into the machine, however, there are many more scenarios in which an officer can allege that you refused. "Allege" is the key word here. For example, an officer can accuse you of refusing for simply not listening to his or her instructions.

    In light of the significant consequences that can come along with a refusal, we wanted to highlight the level of subjectivity involved in determining whether or not a refusal occurred. For reference, we've provided some examples from old DWI cases in North Carolina in which a person was accused of refusal:

    • Declining to remove an object from your mouth at the request of the law enforcement officer
    • Smoking in violations of instruction not to
    • Being unruly so that the proper procedures could not be completed
    • Refusing to blow until your attorney arrives after the 30 minutes allowing an attorney or witness to arrive has expired
    • Failure to provide an adequate sample of your breath
    • Failure to provide a second sample of your breath or a third sample if first two samples were not within 0.02 of each other

    Unfortunately, in North Carolina it is very easy for an officer to allege that you refused.

    Penalties for Breathalyzer Refusal in Mecklenburg County

    Even though you are not legally required to provide a breath or blood sample after an DWI arrest, the laws of North Carolina practically force you to do so by imposing strict penalties including both criminal and civil penalties. Additionally, an officer can obtain a search warrant and compel you to provide a sample of your blood. In this scenario, the State not only has your BAC but you also face the consequences of refusing.  

    Criminal Consequences for Refusal in DWI Cases (N.C.G.S. 10-139.1(f))

    During your DWI trial, the State will use your refusal against you in court. The prosecutor can provide evidence to the court that you refused to submit to a chemical analysis and they will argue that your choice (to exercise your legal right) to refuse to submit a breath, blood, or urine sample is an indication of guilt.

    N.C.G.S. 20-139.1(f) states “if any person charged with an implied-consent offense refuses to submit to a chemical analysis or to perform field sobriety tests at the request of an officer, evidence of that refusal is admissible in any criminal, civil, or administrative action against the person.”

    License Suspension for Refusal in DWI Cases (N.C.G.S. 20-16.2)

    More serious than the criminal implications described above are the sanctions imposed by the North Carolina DMV. When you refuse to submit to a chemical analysis, your driver’s license will be suspended for a minimum of one full year. Click here for more details on license suspension penalties for drunk driving charges.

    We understand the devastating impact associated with not being able to drive for 12 months and can advise you of your options for challenging a license revocation. Our attorneys can appeal your revocation before the DMV and, if necessary, a Superior Court Judge. Additionally, we can help you apply for a limited driving privilege if you qualify. The time frame to appeal your driver’s license revocation is very short.

    Can the Refusal be Challenged or Dismissed?

    There are ways to challenge a refusal and potentially have it dropped completely.

    Police officers are required to inform you of your rights and must follow strict procedures when administering tests to determine your BAC. If the officer fails to properly inform you of your rights or does not properly conduct the test, your refusal can be dismissed. Additionally, if the officer did not have reasonable suspicion to stop you or probable cause to arrest you, your refusal can be rescinded.

    Contact Our Charlotte DWI Defense & Breathalyzer Refusal Lawyers

    If you have been accused of refusing to submit a chemical analysis following your DWI arrest in Mecklenburg County, we would welcome the opportunity to speak with you and thoroughly review the details of your case to determine if it is appropriate for you to challenge your refusal. Call Browning & Long, PLLC today at 980-207-3355 for a free legal consultation.