Written by attorney Robert J. Reeves

North Carolina DWI

In North Carolina, you are guilty of the criminal offense Driving While Impaired (DWI) if you (1) drive, (2) a vehicle, (3) on a highway or street, (4) while under the influence of an impairing substance or with an alcohol blood concentration of 0.08% or more. N.C.G.S.20-138.1 For Commercial Drivers (CDL), the legal limit is 0.04%. As with any crime, the State must prove you guilty of all four elements “beyond a reasonable doubt." While the presumptive blood alcohol limit is 0.08%, you can be charged and convicted of a NC DWI with a blood alcohol content of less then 0.08% as this is only one indicator of whether or not you were impaired. Also, driving while impaired does not just involve alcohol. You can be convicted for driving under the influence of any impairing substance, including illegal drugs or prescription medications.

Probable Cause to Arrest

Before an officer can arrest you for DWI, they must be able to show “probable cause" which is defined by North Carolina Courts as “a reasonable ground of suspicion supported by sufficiently strong circumstances to warrant a cautious man in believing the accused to be guilty." In evaluating whether sufficient probable cause existed in a particular case, a Judge carefully looks at the facts and circumstances that support the officer in believing the driver was driving while impaired. If those facts cannot be properly shown, then the driver’s Constitutional rights have been violated, and the charges should be dismissed. As a result, the first area we review is whether an officer had “reasonable suspicion" to stop you in the first place, prior to being charged with DWI.

In North Carolina, an officer can stop you if he witnesses criminal conduct, including traffic offenses (speeding, improper lane change, expired tag, etc). In certain situations, an officer may conduct a brief investigatory stop even if you have not broken any laws but only if the officer can describe specific facts that allow him/her to reasonably “conclude in light of his experience that criminal activity may be afoot." If not, all resulting charges should be dismissed, and your case should be thrown out.

What to Do if Pulled Over for NC DWI?

First, you have the “right to remain silent." Certainly, do not be rude or disrespectful towards the officer. Any type of erratic or emotional behavior can be a sign of impairment that can be used against you later in Court. However, you are not required to answer any questions about drinking or what you had been doing before being pulled over. Any statements you do make can and probably will be used against you.

Secondly, you are under no obligation to perform any requested “field sobriety tests." These are those “watch the moving pen," “walk a straight line" and “count backward" tests that are difficult to do under any circumstances. But, when you are nervous and on the side of the busy road, you are going to “fail," and any “mistake" will used against you later. Also, you do not have to submit to the roadside test for alcohol. You can refuse it just like you can refuse the other roadside tests. If you do, the result can establish the necessary “probable cause" for arrest and show alcohol was in your system. The exact reading, however, will not be admissible.

Finally, the issue of whether you should submit to formal alcohol testing “down at the station" after arrest gets a little more complicated. As with all other requests by the State, you can refuse breath testing, but the consequences are fairly severe. If you refuse, the DMV will automatically suspend your driver’s license for one (1) year, and you will not be able to get a “limited driving privilege" to/from work for the first six months of that suspension. And, in cases where there has been an accident, the officer may still demand a blood test with a warrant. On the other hand, if you do “blow," you may be helping the State build their case against you.

NC DWI Sentencing Factors After Conviction

NC laws relating to fines and penalties are very complex and confusing. There are many variables used to determine punishment. Based upon the evidence presented at the hearing, the trial judge considers a series of factors outlined below to decide which category applies. Each category then has a range of punishments that guide the judge in making a final ruling.

“Grossly Aggravating" Factors

(1) Prior DWI conviction within 7 years, or after current arrest (each prior conviction is a separate “grossly aggravating" factor);

(2) DWI while licensed is suspended/revoked for a previous DWI;

(3) Serious injury to another person caused while DWI;

(4) Child under 16 in vehicle while DWI;

If convicted with any one of these “grossly aggravating" factors, you can expect a “Level Two Punishment." If two or more such factors, you can expect a “Level One Punishment" (the most severe available).

“Aggravating" Factors

If none of the “"grossly aggravating factors apply, the judge must then consider any applicable “aggravating" factors, including:

(1) Grossly impaired, or BAC 0.16% or greater;

(2) Especially reckless or dangerous driving;

(3) Negligent driving that leads to accident;

(4) Driving while license was revoked;

(5) Two or more prior motor vehicle 3 point convictions or for which license is subject to revocation, within 5 years, or one or more prior convictions of an offense involving impaired driving that occurred more than 7 years earlier;

(6) Speeding while fleeing police;

(7) Speeding at least 30 miles per hour over posted limit;

(8) Passing a stopped school bus;

(9) Any other “aggravating" factor that increases offense.

“Mitigating" Factors

Similarly, the judge must also consider any applicable “mitigating" factors, including:

(1) Slight impairment resulting from alcohol only, and a BAC level of less than 0.09%;

(2) Slight impairment with no testing available;

(3) Driving was safe and lawful except for the impairment;

(4) Safe driving record with no conviction for any 4 point motor vehicle offense or for which the person's license is subject to revocation within 5 years;

(5) 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;

(6) Voluntary submission to mental health facility for assessment and/or treatment for alcohol/drug issues;

(7) Any other factor that mitigates the seriousness of the offense.

(If “aggravating" substantially outweigh “mitigating" factors, you will probably be assigned a “Level Three Punishment"; if balanced, maybe “Level Four Punishment"; if “mitigating" outweigh “aggravating" factors, then probably “Level Five Punishment")

NC DWI Punishment Levels

Level One Punishment (most severe) – Jail (30 days to 24 months); Fine (up to $4,000);

Level Two Punishment – Jail (7 days to 12 months); Fine (up to $2,000);

Level Three Punishment – Jail (72 hours, Community Service, or combination); Fine (up to $500);

Level Four Punishment – Jail (48 hours, Community Service, or combination); Fine (up to $500);

Level Five Punishment – Jail (24 hours, Community Service, or combination); Fine (up to $200).

NC DWI Conviction Penalties

DWI 1st – license suspended for 1 year (mandatory); substance abuse counseling;

DWI 2nd – license suspended for 4 years (if previous DWI conviction within 3 years); ignition interlock device (required to restore driving privileges); substance abuse counseling;

DWI 3rd and greater – Call office for personal consultation.

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