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:
- Problems Maintaining Proper Lane Position
- Speeding and Braking Problems
- Vigilance Problems
- 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
- Turning with a wide radius
- 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.
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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:
- A law enforcement officer has reasonable grounds to believe that the person has committed an implied consent offense;
- The person is charged with an implied consent offense;
- 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
- 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.
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:
- 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.
- 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).
- Your DUI caused serious injury to another person.
- 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:
- Gross impairment of your faculties while driving or an alcohol concentration of 0.15 or more.
- Especially reckless or dangerous driving.
- Negligent driving that led to a reportable accident.
- Driving while your driver's license was revoked.
- 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.
- Conviction under N.C.G.S. 20-141.5 of speeding to elude.
- Conviction under N.C.G.S. 20-141 of speeding by at least 30 miles per hour over the legal limit.
- Passing a stopped school bus in violation of N.C.G.S. 20-217.
- 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:
- 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.
- Slight impairment of your faculties, resulting solely from alcohol, with no chemical analysis having been available to the defendant.
- Safe and lawful driving at the time of the offense, except for the DUI.
- A safe driving record.
- Impairment caused by a lawfully prescribed drug for an existing medical condition, and the amount of the drug taken was within the prescribed dosage.
- Voluntary submission to a substance abuse assessment and voluntary participation in the recommended treatment.
- 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.
- 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
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
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
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
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
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.
- A prior conviction for a DUI related offense (See N.C.G.S. 20-4.01(24a) for the list of offenses) if:
What can happen if I get caught driving on a suspended license?
Because most people rely on driving a vehicle to get to work and take care of family and personal affairs, it can be devastating to have a suspended driver’s license. Public transportation may be readily accessible in some cities in North Carolina, but it may be unavailable, time-consuming, and expensive where you live. As a result, you may find it almost impossible not to drive—even if you have a suspended license. However, if you are caught, you could face even more serious penalties.
Why Are Driver’s Licenses Revoked in North Carolina?
Your North Carolina driver’s license can be suspended for many reasons. Some of the reasons are for fairly minor offenses while others are for committing serious offenses or unsafe driving practices. Here are some of the reasons that your driver’s license could be suspended:
- Failing to pay court costs and fees
- Failing to attend a required court hearing
- Failing to pay child support
- Failing to complete required community service
- Accumulating 12 Department of Motor Vehicle points on your driver’s license in a three-year period or accumulating three points in a three year period when you have a driver’s license suspension on your record
- Speeding over a certain speed or receiving a certain number of speeding tickets
- Refusing to submit to a chemical test to determine if you are intoxicated
- Being convicted of impaired driving
- Failing to stop after an accident
What Are the Penalties for Driving While Your Driver’s License Is Suspended?
Driving While License Revoked (DWLR) is a serious misdemeanor offense in North Carolina—even if your original suspension is for failing to pay fines or another more minor cause. However, the law was changed on December 1, 2015, to reduce the harsh consequences for some offenses. There are now four offenses:
- DWLR. You could be convicted of this offense if you drive a motor vehicle on a highway—which is broadly defined to include most roads—while knowing that your driver’s license has been revoked. This is a Class 3 misdemeanor, but under the new law, a violation may not result in an additional driver’s license suspension.
- Impaired driving suspension. It is a violation of the law to drive when your license has been suspended for impaired driving, and you have received a required notice under North Carolina law of the suspension. This is also a Class 1 Misdemeanor, and a violation could result in an additional driver’s license suspension.
- Driving without reclaiming license. If you are charged with DWI, your driver’s license will be immediately revoked. If the time period for the revocation has expired and you have not reclaimed your license, but are caught driving, this is a Class 3 misdemeanor. Under the new law, this violation may not result in an additional revocation of your license.
- Driving after notification. If you drive after failing to appear for a court hearing and this was communicated to the Department of Motor Vehicles or after receiving a notice from the DMV that your license has been suspended, this remains a Class 1 misdemeanor. You may face an additional driver’s license suspension.
The consequences of driving when your drivers’ license is suspended are serious and include a permanent criminal record if you are convicted of a misdemeanor offense. You could face these punishments:
- Up to 120 days in jail
- Fines to be set by the judge
- Driver’s license suspension of an additional one year for the first offense, two years for a second offense, and lifetime revocation for a third offense
- Eight points on your vehicle insurance policy, which can result in your premiums increasing up to 220 percent for the next three years under North Carolina’s Safe Driver Incentive Plan
Let Us Help If Your Driver’s License Has Been Suspended
If you have been charged with driving while your driver’s license was suspended, our experienced traffic law attorneys are here to help you fight the charges you face. Depending on your situation, we may be able to help you get your driving privileges restored. Call our office today to schedule your free case evaluation to learn more about your legal options.
What happens if I miss my court date for a criminal offense?
When you are charged with committing a crime, you may be released after paying bail while your case is pending. As a condition of your release, you agree to attend all required court hearings in your criminal case. This is something that you are already legally required to do. If you break this promise and fail to attend a court hearing, the consequences can be harsh. However, an experienced criminal defense attorney can help you to reduce the penalties that you could face.
What Could Happen to You If You Miss a Court Hearing?
If you fail to appear at your court hearing, this is taken seriously in North Carolina no matter the seriousness of the crime that you are being charged with committing. The judge will mark your case with a failure to appear (FTA). He could also order the following:
- Bench warrant. The judge may issue a warrant for your arrest. This is more likely for a misdemeanor or felony offense, but is also possible if you are required to go to court for a traffic violation. If the charges are serious, the police may actively look for you to arrest you, including going to your home or job. If you are charged with a less serious offense, you may not be arrested unless you are stopped for a traffic violation and the police check the computer records and see that a bench warrant was issued.
- Bail bond. You could have your bail revoked and be required to remain in jail until your case goes to trial. In addition, you could forfeit the original bond that you paid to be released when you were arrested initially.
- Separate criminal charge. You could be charged with contempt of court or another separate crime for missing your court hearing and face an additional punishment if convicted.
- Harsher sentence. If you are convicted of a crime or enter into a plea agreement, the judge will decide your sentence and can consider your remorse, or lack of it, in making his decision. Many judges consider failing to appear at a court hearing as a sign of lack of remorse or of disrespect for the court. This could result in the judge imposing a harsher sentence.
- Driver’s license suspension. Another consequence of failing to appear in court is that your driver’s license could be suspended. If you miss a hearing in traffic court, the judge may issue a warrant for your arrest and notify the Department of Motor Vehicles (DMV) of the warrant. The DMV could send you a letter giving you two months to resolve your ticket before your driver’s license is suspended. If you wait too long after that to resolve your ticket, you could find your options for doing so with the prosecuting attorney are limited.
What Can You Do If You Miss a Court Hearing?
You may not have wanted to miss your court hearing, but did due to an accident, a medical emergency, or another legitimate reason. Even if you do not have a good excuse, you can take proactive measures if you miss your court hearing to reduce the negative consequences. Here are actions that you can take:
- Go to the Clerk’s office immediately to explain why you missed your court hearing.
- Ask that the court hearing be rescheduled. This request may—or may not—be granted.
- Obtain documentation of the reason for missing court when possible. For example, get a letter from your treating physician if a medical emergency caused you to miss a court hearing.
- Contact your criminal defense attorney who may be able to get the arrest warrant dismissed and your court hearing date rescheduled.
Have you missed a court date? We urge you to contact an experienced criminal defense attorney who can help you minimize the potential consequences that you face. To discuss your situation, call our office or fill out our online form to schedule your free consultation today.
What is a no contest (“nolo contendere”) plea and how does it differ from other pleas in criminal cases in North Carolina?
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
- 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.
What are common grounds to suppress evidence and how could that help my criminal case?
If 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?
If 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.
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 suspension 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.