If your first contact with law enforcement recently occurred during a traffic stop that turned into an arrest for driving drunk, you probably have questions. We frequently work with clients who are in a similar situation.
In an effort to answer some of the questions you may have about your DWI charge, we have drafted an FAQ page with the most common questions our clients usually ask:
Answer: Unfortunately, the TV show “Cops” has given everyone the false impression that any time you are arrested, you will be read your Miranda Rights. According to long-standing case law, your Miranda Rights are required to be read PRIOR to a custodial interrogation. Therefore, you must actually be in custody or exposed to circumstances where a reasonable person would not feel free to terminate the encounter with police AND the police must be questioning or interrogating you. Even if the police fail to read you your rights when required, this does not mean your case will be dismissed but rather your statements may be suppressed, along with any evidence gathered based on those statements, as the evidence may be “fruit from the poisonous tree”. As with all cases, we will analyze your case to determine if there are appropriate grounds to move for a dismissal of your charges or suppression of your statements.
Answer: I like to break DWI cases into three phases that allow for challenge. The first phase is a reasonable suspicion to stop you. The second is probable cause to arrest. The third is the state’s ability to prove your guilt beyond a reasonable doubt.
Throughout these three phases, officers are observing a number of factors that the suspect is unaware of. While the field sobriety tests are one of those factors, most people have no idea what is actually being observed by the officer during the various tests administered. While performing well on the tests may help in challenging the officer’s decision to arrest (probable cause) or guilt beyond a reasonable doubt, it is not the end all, be all. Once we have a better idea of the evidence gathered against you (i.e. officer notes, video, witness statements, etc.), we are in a better position to explain the potential for weaknesses in the case against, should they exist.
Answer: I understand that this may seem self-serving but I always advise anyone facing criminal charges to hire one of the best criminal defense attorneys they can find. Specifically, with DWI charges, the immediate and long-term consequences of pleading guilty, without a thorough review of your case, go far beyond having a criminal record. DWIs are very technical cases and are not as cut and dry as they seem to the layperson. While you may feel like the state has a great case against you, this may not be true after reviewing the evidence and actions by police in their investigation.
If after review of the evidence you have no defense, I still advise having a lawyer on your behalf because an experienced Charlotte DWI attorney may be able to negotiate a plea where additional charges are dismissed in exchange for your plea to DWI and also help mitigate the punishment imposed by the court by a proper determination of the DWI sentencing factors that exist in your case.
Answer: Even if it is your first offense DWI, the short answer is NO. Years ago, this was an option in some DWI cases. Today, North Carolina has taken a much firmer and more aggressive approach to prosecuting DWI. In Mecklenburg County, we are lucky to have some of the more experienced and reasonable prosecutors in the state that will evaluate the merits of their case prior to proceeding to trial.
Even in circumstances where the case is thin, they are still unwilling to reduce the DWI. Most, depending on experience, will either take a dismissal of the charges if they are unable to prove the case due to insufficient evidence or they will proceed to a pre-trial hearing on a motion to dismiss, all while knowing the likely outcome. Special interest groups in North Carolina and the legislature have placed immense pressure on prosecutors and even judges to prosecute and severely punish DWI offenders, which has caused the shift over the years.
Answer: In North Carolina, DWI is an implied consent offense, which means that by your use of the roadways and/or highways that, if asked by a police officer, you have agreed to submit to chemical tests (i.e. breath, blood, and/or urine) to determine the existence of alcohol and/or drugs in your body. In North Carolina, when you refuse to provide this sample, the officer will mark your case as a refusal, which triggers an automatic 12 month revocation of your driving privileges in North Carolina. It does not matter if you win or lose your case, the revocation is imposed due to the refusal.
After six months and if your case is resolved, you may then apply for a limited driving privilege for the remaining time of your revocation. So in short, if your case is a refusal, you will be required to wait six months before you are eligible for limited driving privileges in North Carolina.
Answer: One of the first things we do after being hired and make a request to the appropriate agency (i.e. CMPD, North Carolina State Highway Patrol, etc.) for a copy of any and all video footage of your arrest. Depending on the arresting agency, the video, if available, may be from a dash camera mounted in the patrol car or a body camera worn by the officer.
It is important to make the request as soon as possible because if for certain agencies if the arrest is not appropriately flagged as a DWI, it is purged from their system after a certain number of days. If video exists in your case, once we receive a copy, we bring you into the office so we can view it together. Doing so allows me to explain the important points of the video, whether good or bad and also allows you to see the evidence against you. Today, we are lucky to have so many officers wearing body cameras because it provides us with an objective account of what happened that led to your arrest. Also, the video can be helpful in impeaching the officer’s testimony in court, should the testimony not be consistent with what actually happened during your investigation and shown on video.