First, sorry to hear you're going through all this.
Until it happens to either you or someone you know, it can be hard to truly understand how difficult and sometimes frustrating the process can be.
Speak with an attorney, as the factual basis can be critical to the presentation of a claim.
And probably most important, focus on your health and get back to where you were before the loss.
An attorney can help in many ways. They normally will explain the process. . .which includes more than just what happens in court. There are implications with DMV, licensing issues and the mechanics of court.
If you can't afford an attorney, ask for a Public Defender. DWI cases are extraordinary complex. Understanding how things work, reviewing legal issues and assisting through the process is what lawyers do.
North Carolina DWI Attorney
That is a difficult inquiry to address. One would need more information, as there are differences between a violation of NCGS 20-138.1 and 20-138.3.
The PDP adds a level of complexity, in that the appreciable impairment prong could be proven both with a reading (even if under .08), and when considering in a totality the cumulative effects of impairing substances, may include both alcohol and possibly illegal substances that would necessarily include the need for paraphernalia.
That's a VERY interesting legal issue.
Anonymous source cases often present legal issues, as normally law enforcement must be able to identify the party and/or present evidence as to the veracity of an allegation.
Put simply, Defense Counsel would want to determine the basis of the "tip" and whether a stop was based upon nothing more than unarticulated suspicion or mere "hunch."
Sometimes "tips" also come with testimony from officers where they may have clued in on a vehicle and...
Although this is an inquiry on the Personal Inquiry section, the language relates to what is referred to as a Grossly Aggravating Factor as is defined under North Carolina General Statute 20-179. SEE LINK BELOW.
The relevant section is: (3) Serious injury to another person caused by the defendant's impaired driving at the time of the offense.
(c) Determining Existence of Grossly Aggravating Factors. - At the sentencing hearing, based upon the evidence presented at trial...
Normally a claim is made against the person whom caused the injury. That can be complicated though, as there may be more than one party deemed "at fault."
Most personal injury lawyers will take a look at the case, on a confidential basis, without charging anything.
Either way, it makes sense to talk to an experienced attorney to determine the appropriate manner in which to proceed.
REALLY good question though!
That certainly sounds like an interesting factual basis. Likely expensive too.
You may wish to call John Fanney in Raleigh. He's is an excellent attorney. Please say "hey" if you call.
Best of luck to you.
Well, as to changing the law, that'll require a pretty monumental effort in Raleigh at the North Carolina General Assembly.
Probably best to speak with your attorney regarding a Wilfull Refusal hearing.
That is a complicated inquiry, as it involves proof of operation and possibly what is referred to a "naked, extrajudicial confession" under State v. Trexler.
Without a reading the State may need to proceed on the "appreciable impairment prong" of 20-138.1.
Seek experienced legal counsel immediately.
The North Carolina General Assembly has made a "reduction" VERY difficult. It is a rare event indeed that a prosecutor would agree to proceed in such fashion.
Given the complexity of Impaired Driving offenses. . .and the potential for long-term, negative consequences, consultation with an experienced DWI attorney would be beneficial.
§ 20-138.4. Requirement that prosecutor explain reduction or dismissal of charge in implied-consent case.
(a) Any prosecutor shall...