Driving While Intoxicated (DWI)/(DUI)/Drunk Driving
North Carolina recognizes a privilege, not a right to drive. As a consequence, North Carolina’s view of traffic laws and traffic offenses can be harsh. This applies in particular with DWI/DUI and drunk driving cases.
In addition, the policy of the Wake County District Attorney is that anyone charged with a DUI, DWI or drunk driving offense either plead guilty to that offense, or go to trial. The Wake County District Attorney rarely accepts pleas to lesser charges in exchange for dismissal of the DUI, DWI or drunk driving charge.
As a result, drivers who are stopped and charged with a DUI offense in Wake County frequenly go to trial, unless the DA agrees a favorable sentencing recommendation.
First, let’s look at the North Carolina Driving While Impaired (DWI) laws. These laws are codified at N.C.G.S. 20-138.1 and 20-179.
I Blew Lower than .08. How can they prove I was drunk?
A North Carolina prosecutor can prove intoxication in one of two ways. Either the prosecutor can prove that the driver had a blood-alcohol concentration of 0.08 or higher (BAC). Or the prosecutor can prove through other evidence that the driver had “appreciably impaired faculties” at the time he or she was driving.
Blowing a 0.08 is legally enough to prove impairment. But it is not necessary. Even if someone blows under a .08, a prosecutor could show, through officer testimony or video or other kinds of witness evidence, that the driver couldn’t walk straight, slurred words, had blood shot eyes, failed the horizontal gaze test, and was driving the car erratically.
In addition, North Carolina imposes lower BAC limits in certain cases. If you’re under 21, NC has a zero tolerance law that says that a BAC of any amount will require at least a 30 day revocation of the driver’s license. And those who drive commercial motor vehicles can’t have a BAC of .04 or higher.
I Blew a .08 or higher. Am I guilty?
Not necessarily. There are many ways to challenge a breathalyzer result that’s over .08, and going to trial, rather than accepting a plea agreement, may be the right approach.
First, the police must have a sufficient reason to stop and conduct the exam. Police in this country are not permitted to simply stop drivers at random and give them breathalyzer tests. If you were otherwise driving properly, your car inspection was valid, and so forth, you may be able to challenge the DUI conviction because the police lacked a reason to stop you and test you.
Second, the prosecutor must show that the state’s breathalyzer machine was functioning properly and that the testing of the defendant was done in accordance with appropriate procedures.
If a criminal or DUI defense attorney can show one or more of the following elements, he may be able to show that the test was administered incorrectly and the results are scientifically unreliable.
- The person administering the test was not properly trained or qualified.
- The person did not observe the driver long enough prior to the exam to ensure that the driver did not eat or put anything in his or her mouth that would alter the results.
- The driver suffers from a disease, such as diabetes, that may produce artificially high results on a breathalyzer.
- The machine was improprerly calibrated
- The breathalyzer exam was given too long after the initial traffic stop.
- The breathalyzer machine was not plugged into a dedicated eletrical circuit.
There may be other reasons to challenge the breathalyzer machine’s results.
If a driver is convicted of a DUI under North Carolina’s drunk driving statute, the driver is eligible for one of five levels of punishment. Level Five (5) is the most lenient, least serious level. Level One (1) is the most serious, worst level.
Levels are determined following conviction or can be set as part of a plea agreement.
Level 5 is the least severe level. In order to find a Level 5, the judge must find that there were no grossly aggravating factors, and that the mitigating factors substantially outweigh the aggravating factors.
Punishment for a Level 5 DUI conviction involves a fine of up to $200 (in addition to court costs), and imprisonment for between 24 hours and 60 days. If the sentence is suspended, then judge must impose any combination of 1) an imprisonment for 24 hours, 2) 24 hours of community service to be completed within 30 days of the sentencing, or a 3) a requirement that the driver not operate a motor vehicle for at least 30 days.
Level 4 is someone more severe than Level 5. In order to find a Level 4, the judge must find that there were no grossly aggravating factors, and that any mitigating factors are balanced by aggravating factors. For instance, if there was a mitigating factor, the judge may also find an aggravating factor, so that they are roughly equal.
Punishment for a Level 4 DUI conviction involves a fine of up to $500 and imprisonment for between 48 hours and 120 days. If sentence is suspended, the judge must impose any combination of 1) imprisonment for 48 hours, 2) 48 hours of community service to be completed within 30 days, or 3) a requirement that the driver not operate a motor vehicle for at least a term of 60 days.
Level 3 is more severe than Level 4. In order to find a Level 4, the judge must find that there were no grossly aggravating factors, and that aggravating factors substantially outweigh mitigating factors.
Punishment for a Level 3 DUI conviction involves a fine of up to $1,000 and imprisonent for between 72 hours at 6 months. If the sentence is suspended, the judge must impose any combination of 1) imprisonment for 72 hours, 2) 72 hours of community service to be done within 90 days of sentencing, or 3) a requirement that the driver not operate a vehicle for at least 90 days.
Level 2 is more severe than Level 3. In order to find a Level 2, the judge must find that there was one grossly aggravating factor. The judge will not weigh aggravating and mitigating factors.
Punishment for a Level 2 DUI conviction involves a fine of up to $2,000 and imprisonment for 7 days to 12 months. If the sentence is suspended, the judge must impose an active term of 7 days in jail.
Level 1 is the most severe misdemeanor DUI level. If a judge finds two or more grossly aggravating factors, the judge will sentence the driver to a Level 1 punishment.
Punishment for a Level 1 DUi conviction involves a fine of up to $4,000 and imprisonment for between 30 days at 24 months. If the judge suspends the sentence, the driver will be jailed for at least 30 days.
Statutory Factors: Aggravating, Mitigating, and Grossly Aggravating
Levels are determined by weighing aggravating and mitigating factors, or by finding the presence of grossly aggravating factors.
The following are the various statutory factors (N.C.G.S 20-179.
Grossly Aggravating Factors:
- A prior DUI conviction within 7 years of the date of the new DUI offense.
- An intervening DUI conviction.
- The offense was committed while the defendant’s license was revoked for a prior DUI.
- The offense resulted in a serious injury to another person.
- A child under the age of 16 was in the car at the time of the offense.
- A BAC of 0.15 ore more.
- Especially reckless or dangerous driving.
- Negligent driving that led to a reportable accident.
- Two ore more prior convictions of a motor vehicle offense not involving impaired driving for at which 3 points were assigned.
- Attempting to elude apprehension.
- Speeding by at least 30 miles per hour over the legal limit.
- Passing a stopped school bus.
- Or any other aggravating factor that increases the seriousness of the offense.
- Slight impairment, meaning a BAC that did not go over 0.09.
- Driving was otherwise safe at the time of impairment.
- A safe driving record
- Impairment was the result of a lawfully prescribed drug.
- Voluntary submission to a mental health facility for an assessment.
- Completion of a substance abuse assessment, and maintaining 60 days of monitored, abstinence from alcohol.
- Any other factors that mitigate the seriousness of the offense.
Refusal to Submit to a Breathalyzer Test
If the driver refuses to submit to a test of their BAC, the driver may be faced with a separate charge of refusing to submit to a breath test. The penalty for refusal involves an immediate 30 day suspension of a license and an additional one year suspension of of the license. The penalty for refusing to submit to a BAC exam can be imposed even if the driver is never convicted or is found not-guilty of the DWI charge.
A driver who has refused to submit to the exam has a right to a hearing with the DMV prior to the one-year suspension of the license to determine whether the suspension is proper.
At that hearing, the driver can introduce evidence that he or she was not properly notified of his rights, was not notified of the penalties for refusal, was provided with false information about how the evidence would be used, or was provided with false information regarding the presumption of guilty. Finally, the DMV must show that the driver willfully refused the chemical testing.
If you have any questions about how to defend your rights in a DUI case, or need an aggressive and thorough attorney to represent you in your DUI/DWI case, call (919) 352-9411 weekdays, evenings, weekends, and Holidays.Charged with a serious criminal offense? Facing a DWI or misdemeanor charge? Worried about your job, your family, and your freedom?
Call Wake County criminal defense attorney Damon Chetson at (919) 352-9411 anytime - weekdays, evenings, weekends, or holidays for a free consultation.