North Carolina DWI FAQ
In effort to answer some of the questions you may have about your DWI charge, you will find below, some of the most common questions our clients have:
1) The officer didn’t read my rights before arresting me, does this mean my case will get dismissed?
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.
2) I think I did great on the Field Sobriety Tests, does this mean you will be able to win my case?
Answer: I like to break DWI cases into three phases that allow for challenge. The first phase is 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.
3) I feel like I’m guilty, should I even bother hiring a lawyer for my DWI?
Answer: I understand that this may seem self-serving, but we always advise anyone facing criminal charges to hire an attorney. 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.
4) It is my first DWI offense, will they reduce my DWI to reckless driving?
Answer: 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.
5) I refused the breath test at the police station but can I get a limited driving privilege?
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, 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.
6) How do I know if there is video of my arrest and can I get a copy?
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.
7) Can I get a DWI conviction expunged from my record in North Carolina?
Answer: In North Carolina, if you are convicted of driving while impaired (DWI), whether by entering a plea or being found guilty at trial, you will not be eligible to have the conviction expunged. Under the current expungement laws in North Carolina, you are able to have nonviolent misdemeanor convictions expunged after a five (5) year waiting period. While a DWI would be considered a nonviolent offense, there is no specific DWI expungement law making these convictions eligible for expungement. While the law on this issue may change down the road, the fact that a DWI conviction will stay on your record for your lifetime makes it even more important to hire an experienced and knowledgeable Charlotte DWI lawyer, so that you give yourself the best chance of fighting your case.
8) How long does a DWI stay on your record in North Carolina?
Answer: The answer to this question would depend on the outcome of your case. If you are convicted of a DWI in North Carolina, the charge and conviction will stay on your record permanently. As stated above, DWI convictions, under the current status of the law in North Carolina, are not eligible for an expungement. However, if your case was dismissed after successfully arguing one of many pre-trial motions or you were found not guilty at trial, you are eligible for to have the DWI charge expunged from your record, which would result in it no longer showing up on your driving record or a background check.
9) Is a DWI a felony or misdemeanor in North Carolina?
Answer: In North Carolina, a DWI can be charged as either a misdemeanor or a felony. While the vast majority of people charged with DWI face misdemeanor charges, if certain factors exist, the charge automatically becomes a Class “F” felony and is termed Habitual Impaired Driving. In order for a DWI in North Carolina to be charged as a felony, the person must have three (3) prior DWI convictions all within ten (10) years of the current charged offense of impaired driving. In the event that a person is charged with Habitual Impaired Driving, they face a minimum of twelve (12) months in prison, which cannot be suspended and a permanent revocation of their driving privileges in North Carolina.
10) What happens if I get a DWI in North Carolina, but I have an out of state license?
Answer: If you are charged and convicted of a DWI offense in North Carolina, there is a good chance that your out of state license will be affected. If you are convicted of DWI in North Carolina, your driving privileges in North Carolina will be immediately revoked. While North Carolina can only revoke your driving privileges on the roads within its borders, this does not mean your out of state license will make it out unscathed. Unlike 10 – 20 years ago, the rise of technology, has made it much easier for the North Carolina DMV to communicate with DMV’s located in other states. The vast majority of states are part of the Interstate Compact, which allows them to communicate and report traffic offenses committed in one state, with the person’s licensing state. For example, let’s say you have a South Carolina license but are convicted of a DWI in North Carolina and as a result of your conviction your driving privilege in North Carolina is revoked for 12 months. Once that judgement is processed and communicated to the North Carolina DMV, the North Carolina DMV will enter the revocation here and forward the pertinent information down to the DMV in South Carolina. At that point, the
11) I was charged with a DWI in North Carolina, but my case is in federal court, why?
Answer: North Carolina is home to a number of parks, roadways, and military bases owned and maintained by the federal government. In the event that you are arrested and charged with a DWI on federally owned and maintained property, the federal courts will have jurisdiction over the case, even though the federal property is located within the borders of North Carolina. Despite the fact that your case will be heard in federal court, the same elements laid out in the North Carolina DWI statute must be proven beyond a reasonable doubt. The reason the state’s statutory elements are used at trial is because there is no federal statute for the criminal offense of DWI.
12) I hear lawyers talk about different levels of DWI punishment, what does that mean?
Answer: If you are convicted of DWI in North Carolina, you immediately have a sentencing hearing, during which the judge will decide your punishment. When deciding your punishment, the judge will first need to determine what level you are for DWI sentencing purposes. In North Carolina, there are a number of different DWI sentencing levels laid out by statute. In order for the judge to determine your DWI sentencing level, he or she must consider the grossly aggravating factors, aggravating factors, and mitigating factors that exist in your case, if any. The factors the judge considers are also laid out in the DWI sentencing statute. Once the judge determines which DWI sentencing level is appropriate in your case, they will then issue a sentence/punishment that is appropriate per the guidelines laid out in the applicable statute.
While this is a very small sample-size of the common questions our DWI clients have, if you or someone you know finds themselves charged with DWI in Charlotte, please do not hesitate to contact Randall & Stump, PLLC at (980) 237-4579 to speak with an experienced and highly skilled Charlotte DWI lawyer. The consultation is free and might save you from the severe punishment and long-term consequences associated with a DWI conviction.