What happens during a DWI in North Carolina?

Disclaimer: Laws vary by state. This is only meant to be about the laws in North Carolina. This is not legal advice and should not be used as such. It is for informational purposes only. Consult with an attorney if you have any questions about the law.

Let’s Talk about DWI in North Carolina

As a prosecutor, one of my roles was prosecuting people who drove impaired. There is a TON that goes into a DWI. Commonly, prosecutors consider these to be very difficult cases for a variety of reasons. So, what goes into a DWI and what should you know?

First, the things prosecutors have to prove for a DWI are: 1) The defendant was driving 2) a vehicle 3) On a state-owned street or highway or Public Vehicular Area 4) While subject to an impairing substance. N.C.G.S. 20-138.1 is the statute for DWI in North Carolina.

Elements

Let’s talk about each of those required items the prosecution has to prove. These are called elements. For this article, we will only be focusing on alcohol based DWIs.

Step 1: Is it a Traffic Stop, a checkpoint or a wreck case? Let’s take these step by step. This will tell you how hard it is to prove the first element of “operation” which is synonymous with driving.

Traffic Stops

Traffic Stops are usually the easiest of the three to prove. If the officer did their job, there was generally a legitimate reason for stopping the driver. A common one is speeding or failing to maintain lane control (weaving). This gets us over the initial hump that first there was reasonable suspicion for the stop and second, that the defendant was operating (driving) the vehicle. From there, the officer can easily make observations that develop further into pulling the driver out to do field sobriety tests. More on the tests later.

Checkpoints

Checkpoints can get a little tricky. There are a lot of procedures that need to be followed for these to be allowed. Can the police actually stop people at check points? Generally, yes as long as they are following all those procedures. Typically, the check point is only long enough that they can verify the driver is properly licensed, registered, and insured. The few seconds that should take is minimal and the courts have said it is permissible to do that. What can’t they do? Checking for criminal activity like drugs as the initial purpose of the checkpoint has been held to be unconstitutional. However, if they have you stopped at the license checkpoint and see something illegal in the car, or smell alcoholic beverages on the driver’s breath they can now investigate further and have you pull over.

Wrecks

Wreck cases are the hardest to prove. Part of the reason for this is because the officers typically don’t see it happen and many times the driver is out of the car by the time they get there. In addition, many local agencies will initially respond, but will then turn the investigation over to the Highway Patrol. That could mean there is a delay for a while between the initial officer getting there and a trooper arriving. Sometimes this could be up to an hour. Our highway patrol in many areas is greatly understaffed. Witnesses are often hard to find and reluctant to testify.

Once the investigation starts, the driver may admit they were the ones behind the wheel, or they may deny it. Lots of cases include a statement by the defendant that someone else was driving. They don’t know their name or what they look like, but they ran into the woods. Officers seldom follow up on these claims. That is because they are nonsense 99.9% of the time. Still, that lack of any investigation can cause problems later. Other factors like who the car is registered to can help build a case that the defendant was the driver, but it does not always mean that because a car was registered to you, that someone else could not have offered to drive home. Therefore, proving driving short of an admission or a good witness who saw the defendant behind the wheel is typically pretty difficult.

Vehicle or Not?

If the State can prove the defendant was the driver, they now move on to element 2 – Was it a vehicle.

The answer to this is almost always yes. That is because North Carolina very liberally defines what a vehicle is. Anything with a motor that can move you (gas or battery/electric)  is going to be considered a vehicle. This can include something like a golf cart, moped, or ATV as well as just a car. There are exceptions for certain things like mobility devices used for those with a disability.

Here is the full definition directly from the statute, NCGS 20-4.01 (49):

Vehicle. – Every device in, upon, or by which any person or property is or may be transported or drawn upon a highway, excepting devices moved by human power or used exclusively upon fixed rails or tracks; provided, that for the purposes of this Chapter bicycles and electric assisted bicycles shall be deemed vehicles and every rider of a bicycle or an electric assisted bicycle upon a highway shall be subject to the provisions of this Chapter applicable to the driver of a vehicle except those which by their nature can have no application. This term shall not include a device which is designed for and intended to be used as a means of transportation for a person with a mobility impairment, or who uses the device for mobility enhancement, is suitable for use both inside and outside a building, including on sidewalks, and is limited by design to 15 miles per hour when the device is being operated by a person with a mobility impairment, or who uses the device for mobility enhancement. This term shall not include (i) an electric personal assistive mobility device as defined in subdivision (7b) of this section or (ii) a personal delivery device as defined by this section. Unless the context requires otherwise, and except as provided under G.S. 20‑109.2, 47‑20.6, or 47‑20.7, a manufactured home shall be deemed a vehicle.

State owned Street/Highway

Now we know the defendant was driving and that it was a vehicle, time for element 3: State owned street or highway.

A State-owned street or highway is generally the easiest element to prove. Most roads that we commonly use are going to be State owned roads. Highway and street are the same thing for this purpose. So, what is a public vehicular area (PVA)? That is the other places a vehicle could travel that is open to the public. Parking lots are a common example. Even if you are parked, if the keys are in the ignition or in your control, you are “driving” for the purposes of this statue. What isn’t a PVA?  A private driveway to a home or within private residential property. That is about it.

The finale: Appreciable Impairment

Finally, we have the absolute hardest element to prove: While subject to an impairing substance.

You might say that sounds pretty easy. But is very complex. The State has to be able to prove not only that you were driving, but that you had an impairing substance in your system when you were actually driving, AND that it was an amount that was enough to impair your mental and physical faculties to a noticeable level. This is referred to as appreciable impairment. So how does the prosecution prove this? Mostly through the officer’s observations and giving the driver tests.

What can the officer observe:

Odors – Odor of alcohol or marijuana for example is very strong and distinct. However, marijuana is difficult because it is indistinguishable from Hemp (as far as odor).

Physical appearance: Someone that has vomit, urine, or is disheveled may be impaired. Red glassy eyes are also a common sign of impairment. But red glassy eyes could also be allergies or another eye condition.

Slurred speech – This is very common for someone who is impaired. But speech impediments also exist.

Unsteadiness on their feet- When getting out of the car, not being able to stand up properly or walk normally may also be considered a sign of impairment if the person does not have a physical disability that could cause these issues.

Inability to follow instructions- If an officer asks for your license, registration, and insurance and you fumble about looking while it is right in plain sight, or produce something else like a credit card, that is a sign of impairment.

Next, we get to the field sobriety tests. There are three very common tests that are typically used. Horizontal gaze nystagmus, Walk and Turn, and the One Leg Stand. There are other tests as well, but we will stick to discussing these three.

Horizontal Gaze Nystagmus Test (HGN)

What exactly is this? It is the test you may have seen on TV where the officer uses a pen or a finger (called a stimulus) to go back and forth in front of the defendant’s eyes. There is a very specific way they must administer this test and instructions they must give. The officer must be properly trained to administer these tests. HGN is also possible with head injuries from a wreck. This complicates it further. Really what the officer is looking for is involuntary jerking of the eyes (nystagmus) and the inability of your eyes to move smoothly from one side to the other. There are a total of 3 clues in each eye that they look for. Lack of smooth pursuit, onset of nystagmus prior to 45 degrees, and distinct and sustained nystagmus.  The officer should also be asking questions prior to starting this test to make sure there are no medical issues that can cause the clues he/she is looking for. What does nystagmus look like? A good description is when you picture windshield wipers skipping across a dry windshield. That is how the eyes are moving, rather than moving smoothly across.

Walk and Turn Test

This test is also a common one you’ll see on TV. But the way it is portrayed is not usually correct in fictional police shows. Officers will be looking for up to eight clues during this test. They must give you very specific instructions, make sure you understand the instructions, and then demonstrate prior to starting the test making sure you don’t have questions. The general idea is to test balance, coordination, and ability to follow instructions. You’ll be asked to stand with your feet on a line right in front of left and hands down to your sides. You should be told to stay there while the instructions and demonstration are given. Once you start the test, you should be taking 9 heel to toe steps down a line (which may be imaginary), make a series of small steps keeping your lead foot planted to turn around, then take 9 steps back. The officer is looking to see if you missed heel to toe, stepped off the line, used your arms for balance, started before instructed, made an improper turn, took the wrong number of steps, or lost your balance during the test. This should be noted for each direction and how many times it occurred. Each of those is one clue and the total is out of eight possible clues.

The One Leg Stand

Again, the officer should have you stand in one place with your feet together and hands at your sides while they give instructions. The officer should also demonstrate the test and make sure there are no questions. The instructions should be that the person raise their foot (their choice which one) approximately 6 inches off the ground and keep the bottom of their foot parallel with the ground. They should keep their hands at their sides and should count one-thousand one, one thousand two, one-thousand three, and so on until told to stop (approximately 30 seconds).  There are 4 possible clues during this test – Starting too soon, putting your foot down, hopping, and using arms for balance.

After the field sobriety tests comes the portable breath test.

It is important to note that the portable breath test NUMBER is not admissible in court. There are specific rules for when and how this test can be administered. The officer can testify that there was a positive or negative result for the presence of alcohol. This is simply meant to assist the officer in making sure that what they are seeing is actually from alcohol and not another substance. If they refuse, the refusal can be entered as evidence of guilt.

At this point the officer will likely form an opinion that the person has or has not consumed a sufficient amount of alcohol to be “appreciably impaired”. If they determine they are, the result is an arrest. Then we move on to chemical analysis. Most often this is a breathalyzer. In North Carolina, officers use an instrument called an intoxilizer. This is a much more accurate breathalyzer test. An officer can also ask that you submit to a blood test if you prefer to do that, or they can get a warrant if they have probable cause that they will find something in your blood showing that you were impaired. Impairment does not need to be alcohol but most often it is. The most likely test will be the breathalyzer. These are usually located at the local police or sheriff station. However, an officer can ask you to submit to a blood test if you are already at the hospital or they suspect a substance other than alcohol may be present.

How does the breath test need to be performed?

There are several things the officer will need in order for this test to be valid. First, they have to be properly trained on the instrument as a chemical analyst. Second, they’ll need to make sure the instrument starts and does all checks properly. Third, they need to read you the implied consent rights. You’ll have the option at that point of calling an attorney or witness prior to taking the test. If you choose to do so, the test must be administered no sooner than 30 minutes to allow the witness to arrive or for you to reach your attorney. If you choose not to, they can administer the test after a fifteen-minute observation period. This is designed to make sure you don’t eat, drink, regurgitate, or have anything in your mouth that could interfere with the result. Just note that once the 30 minutes are up if your witness or attorney has not arrived, you are out of luck. The test won’t be delayed for them to arrive.

Next, they will ask you to blow into the machine. Then, assuming they get a good sample, they will ask you to blow a second time. The results must be consistent to be admissible in court. The lower of the two results is the number that could potentially be entered as evidence. If you willfully refuse to take the test, that is admissible as evidence of guilt.

The legal limit in North Carolina is a .08. Exceeding that number is prima facie evidence of impairment. But even that evidence can be rebutted.

Conclusion – It isn’t as easy as most people think

It is incredibly difficult to do everything that has been discussed in this article and come out with a conviction, although not impossible. Prosecutors can routinely do it if they have a well-trained officer, other good witnesses, and a defendant who made statements and submitted to testing. Often times it is the suspect’s own statements that get them in trouble.

Here are some frequently asked questions:

Does the officer need to read me my rights before giving me any tests?

Answer: No. This is not considered within the realm of the Miranda Rights. However, if they want to ask you questions while you are not free to leave, they must first read those rights to you. This doesn’t mean on the side of the road while investigating a wreck or during a traffic stop. This means if they take you into custody and you are at the station, they must read those rights before asking you questions related to the offense.

Will I lose my license if I refuse testing?

Answer: Yes – when we are talking about the actual breathalyzer or blood. Refusing the chemical analysis will result in an automatic revocation of your license. You won’t lose it for refusing field sobriety testing or a portable breath test on the side of the road. However, your refusal can be entered as evidence against you in most instances.

Should I call a witness or an attorney?

Answer: Absolutely. If you find yourself in the position of being asked to blow into a breathalyzer, consulting an attorney is the right thing to do. Advice should be given by a licensed attorney based on your circumstances.

What should I do after being released?

Answer: Immediately reach out to a local criminal attorney who handles DWI Cases. L&N handles these cases. Give us a call at 919-655-3984 or send us a message through our website www.LandNlawnc.com

Will I go to jail for a DWI offense?

Answer: It depends on a lot of different factors. If there were no grossly aggravating factors such as a child in the vehicle, a prior DWI within 7 years, or a license suspension for an implied consent offense at the time of the DWI then it is unlikely you would face substantial jail time for a first offense. DWIs range in levels from a level 5 (the lowest) to an aggravated level 1 which is the highest. Where you fall depends on the grossly aggravating, aggravating, and mitigating factors in your case. Consult with an experienced attorney and we can assist you in figuring out where it is likely you would fall for sentencing level. 

If I am convicted, can I get a limited driving privilege?

Answer: Sometimes. It depends on the circumstances of your individual case. Typically, those falling in the level 3, 4, and 5 DWIs could qualify if they meet certain criteria. You’ll need an attorney to evaluate whether you qualify and to prepare and file the appropriate paperwork. The judge may impose certain requirements for you to get a driving privilege. These could include things like a restriction of no alcohol in your system at all while driving, a device called an ignition interlock that does not allow your vehicle to start if you have alcohol in your system, and times and places you are allowed to drive. If you had a blood alcohol content above a .15 at the time of your arrest, an ignition interlock is mandatory by law.

About the author: Ed Nappi is an experienced North Carolina attorney and former prosecutor. Ed prosecuted dozens of DWI cases. Ed is also a former U.S. Navy Master-at arms where he received training on DWIs. Ed is now an attorney and partner at Lengyel and Nappi Attorneys at Law, PLLC. Ed practices in various areas including criminal law.