Answers to Your North Carolina DWI Questions
It’s natural to have many questions and concerns when you are arrested for drunk driving. What exactly does this charge mean for you and your family? What kind of legal options exist? How can you minimize the negative consequences? These questions and more are answered by the experienced attorneys at Browning & Long, PLLC. Using their years of practice and knowledge of the law, they share their thoughts to many of your most common concerns.
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Can the police search my car after pulling me over for driving while impaired in North Carolina?
Under the United States and North Carolina constitutions, you are protected against unreasonable searches and seizures. In general, this means that the police must obtain a search warrant before searching your vehicle. However, there are exceptions to this rule when a police officer stops you for driving while impaired (DWI) in North Carolina.
When Can the Police Search Your Vehicle Without a Search Warrant When Stopping You for DWI?
There are a number of exceptions to the rule against unreasonable searches and seizures that allow the police to search a vehicle without a warrant when stopping someone for DWI. These include the following:
- Probable cause. If the police have probable cause to believe that you are participating in criminal activity or that there is evidence of a crime in your vehicle, they can search your vehicle without a warrant. Examples of probable cause include seeing something in plain view, such as a gun or drugs, smelling marijuana or alcohol in your vehicle, or observing your bloodshot eyes or an odor of alcohol.
- Searches incident to your arrest. The police may be allowed to search your vehicle incident to your arrest to look for guns or other evidence relating to your arrest.
- Consent. If you consent to the search of your vehicle, the police would be permitted to do so. You should not consent to the search of your vehicle as you would be waiving your right to challenge the search if evidence is found that can be used against you. Your refusal to permit a search without a search warrant cannot be used against you later in court.
What Should You Do If You’re Pulled Over?
If the police stop you, remain calm and polite. You should stop your vehicle, roll down the window, and put your hands on your steering wheel where they are in plain view. You should also say as little as possible while answering the officer’s basic questions.
Have you been arrested for DWI in Mecklenburg County? Our experienced DWI defense attorneys are here to answer your questions and help you build a strong defense to the charges that you face. Fill out our online form or call our Charlotte office to schedule your free initial consultation.
How can I challenge my blood test results in my DWI case?
In North Carolina, a conviction for driving while impaired (DWI) comes with very harsh penalties, such as large fines, a jail sentence, and suspension of your driver’s license. In addition, DWI is a misdemeanor offense in North Carolina and a conviction would result in a permanent criminal record. Fortunately, there are defenses to these charges that you could have even if you are guilty of driving when intoxicated that may result in the charges being dismissed or reduced to a less serious offense. One powerful defense may be to challenge the results of your blood test.
Blood Tests in North Carolina DWI Criminal Cases
In North Carolina, police officers are permitted to obtain the amount of alcohol on your breath or blood as evidence to be used against you in a DWI case. The amount of alcohol on your breath is tested through the use of a breath testing machine, and the amount in your blood is tested through a blood test. If you do not consent to this testing, the police would need to obtain a warrant to conduct the test, which they would often obtain. However, under North Carolina’s implied consent laws, you imply consent to this testing and would face harsh penalties for refusing the test, such as automatic revocation of your driver’s license and your refusal being used as evidence in your DWI case.
Common Challenges to Blood Test Results in DWI Cases in NC
A blood test is conducted by drawing your blood and testing it, and it tends to be the most reliable testing procedure. However, this does not mean that the results are always right. If you are successful in challenging the result, the prosecutor may not be able to use the most important piece of evidence against you, and the charges against you may be dismissed. Questions regarding the reliability of the tests may also help to obtain a more favorable plea agreement where the charges are reduced to a much less serious offense.
There are a number of defenses to blood test results, and which one is applicable in your case will depend on your facts. Your experienced DWI attorney will be able to identify the best defenses in your case. Here are some defenses that may apply to your case:
- Lack of qualifications. The person administering the test must be qualified to do so. Your attorney can examine the training and experience of the person who administered your test to see if this is a basis for a defense. Even if the person was qualified, if there are other questions of his competency, such as cases of his falsifying records, this could lead to challenging the use of the blood test against you.
- Chain of custody. In DWI cases, the police are required to follow specific guidelines in handling the evidence—including the blood drawn from you and your test results. To ensure that they were not tampered with, the police must account for them at all times or the chain of custody may be broken. Mislabeling the test tube or misplacing it for a period of time are two examples of when the chain of custody might be broken. If the chain of custody is broken in your case, the blood test result could be excluded from evidence in your criminal case.
- Calibration. Blood testing machines often need to be calibrated, like breathalyzers, to ensure that they work properly. In some cases, the calibration of the equipment used in a blood test may not be properly done and could lead to an error in the results. In this situation, the test results could be excluded or the accuracy questioned.
- Storage. Blood samples must be properly stored or it can result in elevated error rates. The yeast, sugar, and bacteria in the blood can ferment if not stored correctly—which can lead to inaccurate test results. If your blood sample was improperly stored, the results may be inadmissible.
Let Us Help Raise All Your Defenses in Your DWI Case
Were you charged with DWI? An experienced DWI defense attorney can help you aggressively fight the charges you face. We have the added benefit of being former prosecutors so we understand how they approach these cases. To learn more about how we can help you build a strong defense, call our office today to schedule a free consultation.
If I recieved a civil revocation when charged with DWI in North Carolina, when can I drive again?
DWI Civil Revocation
When a person is charged with DWI, their North Carolina driver’s license is almost always revoked due to a DWI Civil Revocation. Your license is subject to such a revocation if:
- A law enforcement officer has reasonable grounds to believe that you committed a DWI;
- You are charged with DWI;
- The law enforcement officer and/or the chemical analyst comply with the mandated procedures in requiring your submission to a breath and/or blood test; and
- You either
- Willfully refuse to submit to the breath and/or blood test;
- Had an alcohol concentration of 0.08 or more within a relevant time after the driving;
- Had an alcohol concentration of 0.04 or more at any relevant time after the driving of a commercial motor vehicle; or
- Have any alcohol concentration at any relevant time after the driving and you are under 21 years of age.
If your license is revoked due to a DWI Civil Revocation, there are three different ways our attorneys can potentially get you driving again.
- Hearing to Contest the DWI Civil Revocation
- Pre-Trial Limited Driving Privilege
- Wait for the DWI Civil Revocation to Expire
Hearing to Contest the DWI Civil Revocation
At Browning & Long, PLLC, this is the preferred method to getting you driving again.
Oftentimes, our attorneys can schedule a hearing in front of a judge or magistrate to challenge your DWI Civil Revocation. If our attorneys are successful at this hearing, your North Carolina driving privileges are restored in full; that is, there are no further restrictions on your driver’s license and you are permitted to drive as you did before being arrested for DWI. Additionally, there are no required fees or fines to pay to the State as required with the other options discussed below.
However, in order to take advantage of this approach, by statute, our attorneys must file the appropriate paperwork to request the hearing within 10 days from the date of your revocation. Don’t delay, contact us now!
Pre-Trial Limited Driving Privilege
If you missed the 10-day window to request a hearing to contest your DWI Civil Revocation, the attorneys at Browning & Long, PLLC can help you apply for a Pre-Trial Limited Driving Privilege. Once 10 days from the date of your DWI Civil Revocation have passed, a Pre-Trial Limited Driving Privilege allows you to drive throughout the remainder of your revocation - typcially to day 30 or 45 - from Monday through Friday, between the hours of 6:00 AM and 8:00 PM, for purposes such as household maintenance, employment, and education. In many cases, our attorneys can assist you in getting extended hours for certain purposes. However, unlike the hearing to contest a DWI Civil Revocation, there is a $100 filing fee, paid to the State, to secure a Pre-Trial Limited Driving Privilege.
Wait for the DWI Civil Revocation to Expire
When you receive a DWI Civil Revocation, 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 5 working days of the revocation, the revocation period is 30 days. If your driver’s license is not surrendered within 5 working days of the revocation, the revocation is generally 45 days.
If you were not able to take advantage of a DWI Civil Revocation Contest Hearing or a Limited Driving Privilege, your DWI Civil Revocation will expire after the 30 or 45-day revocation period mentioned above. Once expired, and only after you pay the requisite $100 DWI Civil Revocation fee, your driver’s license will be restored.
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. Once you are placed under arrest the police officer will take you to the police station and ask you to submit to a breath test. If you are taken to the hospital, the police officer will ask that you allow your blood to be drawn. These tests will provide your alocol concentration and will be used against you in court. You can refuse these tests, however, if you do, in most cases the police officer will get a search warrant and then compel you to provide a sample. Additionally, if you refuse, your driver's license will be suspended for a year. Accordinly, we recommend that you provide a sample, however, if your only concern is not getting convicted, then you should refuse.
- Contact an experienced attorney. As soon as possible after your arrest, you want to retain an experienced DWI 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.
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.
What is the difference between DWI and DUI in North Carolina?
To begin, DWI stands for Driving While Impaired; DUI stands for Driving Under the Influence. While the correct legal term for impaired driving in North Carolina is Driving While Impaired (DWI), there is no practical difference between it and Driving Under the Influence (DUI), or one of the many other terms used to describe impaired driving, including the following.
- Driving While Impaired (DWI)
- Driving While Intoxicated
- Driving Under the Influence (DUI)
- Operating a Motor Vehicle Impaired (OMVI)
- Operating a Vehicle Impaired (OVI)
- Operating While Impaired (OWI)
- Operating While Intoxicated
- Operating Under the Influence (OUI)
- Drunk Driving
- Drugged Driving
Speak To A Charlotte DWI Lawyer Today
Regardless of what you called it, being convicted of DWI in Charlotte, North Carolina indicates that you drove a motor vehicle while you were impaired by some impairing substance. It is not necessary for the impairing substance to be alcohol as some of the terms above would indicate (i.e. Driving While Intoxicated, Operating While Intoxicated, or Drunk Driving). In fact, it is possible to be convicted of DWI when you are impaired by a substance other than alcohol, including, but not limited to, marijuana, cocaine, and prescription medications. Thus, the term Driving While Impaired, or DWI for short, was created to include any and all substances that a person may consume that might impair their ability to drive.
More DWI Information:
Can I purchase a handgun in Mecklenburg County, North Carolina if I'm convicted of DWI?
As is often the case with the law, the answer to this question is “it depends.” Generally, you must have either a North Carolina Concealed Handgun Permit or a North Carolina Handgun Purchase Permit to purchase a handgun. The Concealed Handgun Permit allows you to carry a handgun concealed in certain situations, while the Handgun Purchase Permit simply allows you to purchase a handgun.
In North Carolina there are many requirements you must meet in order to obtain one of the handgun permits mentioned above, as well as many reasons to deny you from obtaining one of these permits. This FAQ does not address all these requirements and reasons for disqualification, just those that pertain to DWI convictions. So let’s take a look at the requirements to obtain each type of permit as it concerns DWI.
North Carolina Concealed Handgun Permit and DWI Convictions
As hinted at, the North Carolina General Statutes (N.C.G.S.) dictate who qualifies for a North Carolina Concealed Handgun Permit. As these statutes pertain directly to DWI, you cannot be granted such a permit if you have been convicted of an impaired driving offense listed below within three years prior to the date your application is submitted. Those impaired driving offenses include the following:
This essentially means that if you have been convicted of one of these three offenses, you must wait three years from the date of your conviction to submit your application for your North Carolina Concealed Handgun Permit.
To read more about the other requirements to obtain a North Carolina Concealed Handgun Permit, see N.C.G.S. 14-415.12.
North Carolina Handgun Purchase Permit and DWI Convictions
Even if you don’t qualify to get your North Carolina Concealed Handgun Permit because of an impaired driving conviction, you may still be able to purchase a handgun by obtaining your North Carolina Handgun Purchase Permit. As it pertains to DWI, the relevant law indicates that such a permit may not be issued to you if you are under an indictment for or have been convicted in any state, or in any court of the United States, of a felony. Since DWI related convictions are typically classified as misdemeanors and not felonies, North Carolina law does not seem to prohibit you from purchasing a handgun by obtaining your North Carolina Handgun Purchase Permit when you are convicted of DWI.
To read more about the other requirements to obtain a North Carolina Concealed Handgun Permit, see N.C.G.S. 14-404.
Although North Carolina law does not seem to prohibit it, the better inquiry may regard federal law; that is, under federal law does a DWI conviction prohibit you from possessing a handgun?