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DRIVING WHILE IMPAIRED

Driving while impaired is one of the most serious driving offenses in North Carolina. A conviction of driving while impaired (dwi) can result in not only a revocation of one’s license and a whopping increase in one’s insurance rates but also could result in jail time. We at Adams, Portnoy & Berggren, PLLC,a raleigh traffic ticket lawyer, defend each and every driving while impaired charge to its fullest and leave no defense on the table. If you have been charged with DWI please give us a call at 919-729-9000 for a free, no obligation consultation to analyze and discuss your case.

ELEMENTS
Driving while impaired is codified in N.C.G.S. § 20-138.1.
A person commits the offense of driving while impaired if he or she
Drives a vehicle upon any highway, any street, or any public vehicular area within this State:
(1) While under the influence of an impairing substance; or
(2) After having consumed sufficient alcohol that he has, at any relevant time after the driving, an alcohol concentration of 0.08 or more. or
(3) With any amount of a Schedule I controlled substance, as listed in G.S. 90-89, or its metabolites in his blood or urine.

DEFENSES
To mount a successful defense to a charge of driving while impaired it is essential to first look at whether the State can prove the basic elements of the offense:

Element 1) – “Drives” – The State has the burden of proving that the defendant was actually the person who was driving the vehicle while he or she was impaired. In crash situations the lack of the “corpus delicti” (body of the crime) is a valid defense. Under the corpus delicti rule, the State may not rely solely on the confession of a defendant that he or she was driving to obtain a conviction; rather, the State must produce substantial independent corroborative evidence that supports the facts underlying the confession.

Illustrative Crash Cases:

State v. Trexler, 316 N.C. 528 (1986) Defendant confessed to being the driver of the vehicle. The evidence presented by the State corroborating the confession including that the overturned car was lying in the middle of the road and a single person was seen exiting it, when the defendant returned to the scene he appeared to be impaired, he blew 0.14 on a breathalyzer, and the wreck was otherwise unexplained. Defendant found guilty.

State v. Cruz, 173 N.C. App. 689 (2005) The evidence supported the defendant’s confession where the State brought in independent witnesses who testified as to seeing defendant’s vehicle driving down the road.

State v. West, 204 N.C. App. 597 (2005) Defendant was found lying on the ground next to a crashed moped. No other drivers were around and his injuries were consistent with being thrown off bike. Court found State met its burden of showing defendant was “driver”.

Sitting Behind Wheel (Control) Cases

Another defense concerning whether the defendant was “driving” occurs where the defendant is merely sitting behind the wheel of the vehicle and the vehicle is not in motion. The defense being that the defendant was not “operating” the motor vehicle while impaired. The general rule in these situations is that the Defendant is deemed to be operating a vehicle even if the vehicle is not in motion as long as the ignition is on. See N.C. Gen. Stat. § 20–4.01 (25) (2007)

Illustrative Control Cases:

State v. Polley, 175 N.C. App. 595 (2006) Defendant was deemed to be the operator of the vehicle when he was parked at a drive through and was sitting in the driver’s seat with keys in ignition.

State v. Fields, 77 N.C. App. 404, (1985) Defendant was seated behind the wheel and the vehicle was not in motion. The passenger had been driving and stopped the vehicle on the street so that they could use the bathroom. The defendant got back into the driver’s seat of the car and cranked it because he was cold. The court found that this constituted sufficient evidence of driving in the prosecution of defendant for the offense of driving while impaired.

State v. Hatcher, 210 N.C. 55 (1936) an intoxicated person holding a car still on a hill with the brake pedal while another works on the carburetor does not constitute operating a motor vehicle).

State v. Carter 15 N.C. App. 391, (1972) being in a car with the engine running but at a stop does constitute operating a motor vehicle.

Element 2) – “a vehicle” – the State also has to prove that you were driving a vehicle. The new law set forth in N.C.G.S. § 20-138.1 now includes a bicycle and a lawnmower as “vehicles” but excludes horses.

Element 3) – “In a public vehicular area” – the State has to prove that a person was driving on a “highway, any street, or any public vehicular area within this State.”

The following are considered public vehicular areas:
1.  Any road used for public vehicular traffic including roads, street, alley
2.  Parking Lots of any public or private hospital, college, university, school, orphanage, church, or any of the institutions, parks or other facilities maintained and supported by the State of North Carolina or any of its subdivisions.
3.  Any service station, drive-in theater, supermarket, store, restaurant, or office building, or any other business, residential, or municipal establishment providing parking space whether the business or establishment is open or closed.
4.  The area is a beach area used by the public for vehicular traffic.
5.  The area is a road used by the public within or leading to a gated or non-gated subdivision or community, whether or not the subdivision or community roads have been offered for dedication to the public.
6.  The area is a portion of private property used by vehicular traffic and designated by the private property owner as a public vehicular area in accordance with G.S. § 20-219.4.

Public Vehicular Area Cases

State v. Robinette, 124 N.C. App. 212 (1996) a parking lot of aa car wash was a public vehicular area.

State v. Turner, 117 N.C. App. 457 (1994) a privately maintained paved road in a privately owned mobile home park is a public vehicular area.

State v. Mabe, 85 N.C. App. 500 (1987) a wheelchair ramp in a parking lot of a hotel is a public vehicular area.

State v. Carawan, 80 N.C. App. 151 (1986) a portion of a public park that was occasionally used for public parking deemed a public vehicular area.

State v. Snyder, 343 N.C. 61 (1996) parking lot of a private nightclub was a public vehicular area.

Element 4) – “Impairment

Even if the State is able to prove the prior three elements it still has to prove a persona has drunk a sufficient quantity of intoxicating beverage or taken a sufficient amount of narcotic drugs, to cause him to lose the normal control of his bodily or mental faculties, or both, to such an extent that there is an appreciable impairment of either or both of these faculties.

How does the State try to prove this impairment?

Field Sobriety Tests. One way that the State attempts to prove impairment is by the use of field sobriety tests. These “tests” are designed to give evidence of both mental and physical impairment. The three most common tests (standard field sobriety tests) are:

1. Horizontal Gaze Test (HGN):

2. Walk and Turn Test: Defendant is asked to walk heel to toe nine steps, turn around and walk back. Defendant recites the number of each step while walking.

3. One Leg Stand: Defendant is asked to raise foot six inches off the ground and count out loud from 1001-1030.

You should never consent to take any field sobriety tests. These tests are designed to be failed and to be used against you at trial to determine your guilt.

Blood Alcohol Level:

The State can also prove probable cause to arrest you or your impairment by use of blood alcohol tests. PBT. The PBT or Portable Breath Test is used by the officer after stopping you to try to establish probable cause to arrest you. The evidence of this test can be admitted in court as either “positive” or “negative”. You should always refuse to take a PBT. Refusing this type of test (unlike the breath machine downtown) has no negative consequences.

INTOXILYZER 5000

In North Carolina you are required to submit to a blood or breath test if you are arrested for DWI. This is because of North Carolina’s “implied consent” law that says that if you arrested by an officer who had probable cause then you agree to taking a chemical test of your blood or breath for the purpose of determining your blood alcohol content (concentration) (BAC). The breath test is taken by the use of machine called the Intoxilyzer 5000. The science of this machine is sketchy at best but has been determined by our Courts to establish the State’s case against you if the measured blow is .08 or more. If you refuse to take a breath test then you are penalized and the officer can immediately get a warrant to draw your blood.

OTHER DEFENSES

There are many other possible defenses to a driving while impaired offense. Our attorneys will evaluate each defense to see whether or not any apply to your particular case.

No Reasonable Suspicion for Initial Stop

In order to stop a driver an officer must have reasonable articulable suspicion that a traffic violation has occurred. This is an extremely light standard for an officer to meet. However, if the officer did not have the necessary information at his or her disposal then a motion to suppress may be successful.

Examples of Reasonable Suspicion

-Registered owner has revoked license
-Speeding
-Changing lane without signaling (if other vehicles present)
-Erratic and significant weaving within the lane
-Driving significantly below the speed limit
-Anonymous Tips if corroborated by officer at scene
-Failing to move vehicle for long period of time after light turned green
-Presence in high crime area and evasiveness
Examples where Reasonable Suspicion Lacking
-Speeding only slightly above limit with limited evidence
-Moderate weaving within the lane
-Short period of time moving vehicle upon light turning green
-Turning into an adjacent lane without signaling where no other traffic present
-Driving in a high crime area without other evidence of bad driving

If you feel that you have been stopped for a DWI without Reasonable Suspicion then Call Us at 919-729-9000 for a Free Analysis of your Case.

No Probable Cause to Arrest

The 4th Amendment to the Constitution protects us against unreasonable search and seizures. As such, the police officers are required to have probable cause to arrest an individual.

Probable cause is defined as facts and circumstances, within the police officer’s knowledge, that would cause a reasonable person to believe that a crime has or is being committed. In a DWI situation this means the before an officer can take you into custody he or she must receive evidence that indicates your mental or physical faculties were appreciably impaired. This can be found by a positive alcohol screening test (alco-sensor) conducted at the scene but cannot be based solely on a strong odor of alcohol emanating from the person or vehicle. A defense of lack of probable cause can be used as a way to suppress any evidence obtained after the arrest such as the blood alcohol level which may then result in a dismissal.

Illustrative Probable Cause Cases

State v. Tabor, 166 N.C. App. 282 (2004) (unpublished op.) probable cause found based upon strong odor of alcohol, glassy eyes, difficulty walking and standing, difficulty retrieving license from wallet, and admission of drinking.

State v. Tappe, 139 N.C. App. 33 (2000) finding probable cause based upon vehicle crossing center line, strong odor of alcohol, glassy and watery eyes, and admission of drinking.

State v. Sanchez 187 N.C. App. 306 (2007) finding probable cause when defendant driving recklessly, had strong odor of alcohol and had trouble exiting vehicle.

If you feel that you have been arrested for a DWI without Probable Cause then Call Us at 919-729-9000 for a Free Analysis of your Case.

Invalid Checkpoint

The statutory requirements for the establishment of a checkpoint are set forth in North Carolina General Statute § 20-16.3A. The most important provision requires the law enforcement agency to have a written policy that provides the guidelines for how vehicles are stopped and what information would be requested from the driver.

If you feel that you have been stopped at an Invalid Checkpoint then Call Us at 919-729-9000 for a Free Analysis of your Case.

REVOCATION OF YOUR DRIVING LICENSE

In North Carolina, the loss of one’s license can cause substantial hardship to you and your family. The following is a breakdown of the various license suspensions related to DWI.

Pre-Trial Revocation

Upon being charged with driving while impaired and you blew a .08 or above or refused then your license is revoked for 30 days. You can get a privilege after 10 days to cover the remaining 20 days if all of the following are true.
(1) At the time of the offense you held either a valid driver’s license or a license that had been expired for less than one year;
(2) You do not have any prior unresolved DWI or new DWI charges
(3) You have not been convicted of driving while impaired within the preceding 7 years;
(4) You obtain a substance abuse assessment (see list of assessing agencies)

The pre-trial privilege requires additional costs and needs to be requested or petitioned to the Court to cover the remaining 20 days of the initial 30 day suspension. The Petition (AOC-CVR-9) – use link -http://www.nccourts.org/Forms/Documents/201.pdf and Privilege (AOC-CVR-10) = use link http://www.nccourts.org/Forms/Documents/202.pdf along with proof of insurance (DL-123), Assessment and Certified Copy of your Driving Record are all need for the privilege.This license is “limited” in that it is restricted to certain times. If you choose not to get a privilege then you can pick up your license at the clerk of court’s office after 30 days has passed and by paying a $75 restoration fee at that time. The license is valid until the case is resolved in court.

Our firm can help you get the limited privilege for you

Post-Trial Revocation

If you are convicted or plead guilty to the DWI charge, your license will be suspended for (1) year. However, you may be eligible for a limited license, which will enable you to drive during that one (1) year period of revocation. To be eligible for a limited license, you must not have a conviction of DWI within seven (7) years from the date of your arrest not the date of your conviction. Just like the Pre-Trial Privilege you have to show proof of insurance and have an assessment done. Also, your driving will be limited to certain times unless you get information you’re your employer showing your hours of employment, and the driving must be employment related only. There are additional costs involved in obtaining a limited privilege.

Refusal Revocation
If you refused to submit to either a breath or blood test, the North Carolina Division of Motor Vehicles will suspend your driver’s license for a period of one (1) year. This one (1) year period of revocation is in addition to the initial thirty (30) day revocation as shown above. After six months you can obtain a limited driving privilege as long as you have the necessary documents as set out of the other privileges and you have completed the treatment recommend by the substance abuse agency.

Ignition Interlock

If you are convicted of DWI and blow a .15 BAC level or above then you can only get a limited privilege after 45 days with the installation of an ignition interlock system (iis).

You can still get a interlock limited privilege as long as you have
1. not been convicted of DWI during the past seven years
2. have no pending unresolved charges of DWI.

The procedure to obtain the privilege is similar to the post-trial revocation procedure. You have to get proof of insurance (DL-123), obtain an alcohol assessment, fill out the correct paperwork and get the iis installed. There are additional fees involved as well.

If you need help getting a limited privilege please call 919-729-9000 to speak to an experienced attorney.

DWI SENTENCING

Upon a conviction of DWI the Court determines the level of punishment. There are six levels of punishment with aggravated level V being the most lenient sentencing level and level I being the most severe. The determination of the level is depending on the weighing of aggravating or mitigating factors. Here is a breakdown of the different levels.

Level V (no grossly aggravating factors and mitigating factors outweigh aggravating factors)
-Fine up to $200
-Minimum jail sentence of 24 hours and a maximum of 60 days.
A judge can and normally does suspend the sentence but only if the Defendant either 1) spends 24 hours in jail 2) performs 24 hours of community service or 3) does not operate a vehicle for 30 days.

Level IV (no grossly aggravating factors and aggravating factors equal mitigating factors or neither present)
-Fine up to $500
-Minimum jail sentence of 48 hours and a maximum of 120 days.
A judge can suspend the sentence only if the defendant does one of the following 1) spends 48 hours in jail 2) performs 48 hours of community service or 3) does not operate a vehicle for 60 days.

Level III (no grossly aggravating factors and aggravating factors outweigh mitigating factors)
-Fine up to $1,000
-Minimum jail sentence of 72 hours and a maximum of six months.
A judge can suspend the sentence only if the defendants does on of the following 1) spends at least 72 hours in jail 2) performs 72 hours of community service or 3) does not operate a vehicle for 90 days.

Level II (one grossly aggravating factor)
-Fine up to $2,000
-Minimum jail sentence of seven days and a maximum of one year.
A judge CANNOT suspend the minimum sentence.
Level I (more than one grossly aggravating factor)
-Fine up to $4,000
-Minimum jail sentence of 30 days and a maximum of two years.
A judge CANNOT suspend the minimum sentence.

Aggravated Level I (three or more grossly aggravating factors)
-Fine up to $10,000.00
-Minimum jail sentence of 12 months and a maximum of 3 years.
A judge CANNOT suspend the minimum sentence.
Aggravating and Grossly Aggravating Factors §20-179(c) & (d)

Aggravating Factors §20-179(d)

• Gross impairment of 0.15 or more

• Especially reckless or dangerous driving

• Negligent driving that led to a reportable accident

• Driving by the defendant while his driver’s license was revoked

• Two or more prior convictions of a motor vehicle offense for which at least three points are assigned occurring within five years of the date of this offense OR one or more prior convictions of an offense involving impaired driving that occurred more than seven years before the date of this offense

• Conviction of speeding while fleeing or attempting to elude apprehension

• Conviction of speeding by the defendant by at least 30 miles per hour over the legal limit

• Passing a stopped school bus

• Any other factor that aggravates the seriousness of the offense

Grossly Aggravating Factors §20-179(c)

• A conviction for an offense involving impaired driving within seven years of the date of this offense (See §20-179(o) re: rebutting priors)

• Each prior conviction is a separate grossly aggravating factor

• District court conviction that is appealed and either withdrawn or remanded BUT not yet resentenced

• The defendant’s driver’s license was revoked for an impaired driving offense at the time of this offense

• Serious injury to another person caused by the defendant’s impaired driving at the time of this offense

• A child under the age of 16 years was in the vehicle at the time of this offense

Mitigating Factors §20-179(e)

• Slight impairment solely from alcohol and the alcohol concentration did not exceed 0.09

• Slight impairment resulting solely from alcohol, with no chemical analysis having been available to the defendant

• Driving at the time of the offense that was safe and lawful except for the impairment

• A safe driving record, having no convictions for any motor vehicle offense for which at least four points are assigned within five years of the date of this offense

• Impairment caused primarily 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 mental health facility for assessment after being charged with the impaired driving offense and, if recommended by the facility, voluntary participation in the recommended treatment

• Assessment, compliance with recommendations and maintaining 60 days of continuous abstinence, as proven by DOC approved device

• Any other factor that mitigates the seriousness of the offense

If you have a traffic ticket you would like to discuss with us please call 919-729-9000 for a free consultation and get a raleigh traffic ticket lawyer for your case.

Adams, Portnoy & Berggren, PLLC
4000 Blue Ridge Rd, Suite 150
Raleigh, NC 27612
919-729-9000

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