What is Impaired Driving?
You may have heard the term “Driving Under the Influence” [DUI]. DUI is the more traditional way of referring to driving under the influence of alcohol. However, in the early 1980’s the North Carolina legislature changed it to the more inclusive Driving While Impaired [DWI]. DWI includes impairment resulting from such substances as lawfully prescribed medications, as well as other illegal substances. Therefore, if a driver is under the influence of an impaired substance, or has a BAC of at least 0.08, or has any amount of illegal drug in his or her system while driving, then that driver can be charged with Impaired Driving.
Once a person is charged with impaired driving, his or her license is generally subject to a thirty (30) day civil revocation. However, after ten (10) days the driver may be eligible for a limited driving privilege. After thirty (30) days, the driver may pay a fee and get his or her license back from the clerk of court.
In North Carolina, DWI is an implied consent offense. That means that if you operate a vehicle in North Carolina you agree to provide a sample of your breath at the request of law enforcement. If you refuse to provide that breath sample, the officer will note your refusal. Your refusal will be accepted by the judge as evidence of impairment. In addition, your license will be suspended for one year based on the refusal. This one year period of revocation is in addition to any revocation that results from a conviction for DWI. If your license is revoked based upon your refusal to provide a breath sample, you may be eligible for a limited driving privilege after six months.
The Legal Process
In order to be convicted of DWI, the state must prove beyond a reasonable doubt that the defendant (1) drove (2) a vehicle (3) on a street, highway, or public vehicular area (4) (a)while under the influence of an impairing substance, (b) with a blood alcohol concentration of 0.08 or (c) with any amount of a schedule 1 controlled substance is his or her blood. The attorney for the state no longer has the legal authority to reduce or dismiss DWI charges without extensive documentation and review.
As a result, you generally must plead guilty or not guilty. If you plead guilty, the judge will conduct a DWI sentencing hearing. If you plead not guilty, the judge will conduct a trial. If after trial, you are found not guilty, you are free to leave. If you are found guilty, the judge will conduct a DWI sentencing hearing.
Going To Trial
DWI offenses are initially tried in District Court. District Court cases are decided by a Judge and not a jury. In other words, the judge will decide if the state has proven beyond a reasonable doubt the elements of the offense. The judge will also consider evidentiary arguments raised by the state or the defense.
Making a Case
In a DWI trial, the prosecutor (generally an assistant to the elected district attorney) will try the case for the state. Usually, the prosecutor will not elect to give an opening statement. The defense attorney will usually make the same election. The prosecutor will call the first witness. The first witness will usually be the law enforcement officer who initiated the stop of the defendant’s vehicle. The prosecutor will ask the officer questions about his or her experience, job duties and observations on the day of the arrest. The prosecutor will also ask about the defendant's driving, the stop, any field sobriety tests that were conducted, his or her opinion as to impairment, any statements that were made by the defendant, the intoxo-meter, as well as any other indications of impairment.
The prosecutor will call any additional witness that he or she believes are necessary to eliminate any reasonable doubt with regard to all of the elements of the offense. After each witness has answered the prosecutor’s questions, the witness is subject to cross-examination by the defendant’s attorney.
In the movies Defense lawyers often bully or badger witnesses in cross-examination. This practice is not tolerated in state and federal courtrooms in North Carolina. Lawyers who are discourteous to witness are often reprimanded by the judge and rejected by the jury. In North Carolina, cross-examination is more effective when it is carefully constructed than when it is disrespectfully delivered.
After the state’s last witness, the state will rest. Your attorney may make a motion to dismiss. The judge may or may not want to hear arguments on the motion. If the judge grants the motion to dismiss, the defendant is free to leave. If not, the case proceeds.
The defendant has the right to put on evidence. The defendant is not required to put on any evidence. The defendant can elect to testify or not to testify. The decision to testify or not is for the defendant and not the lawyer's to make. The lawyer may and should offer his or her opinion as to whether it is beneficial for the defendant to testify or not. If the defendant elects to refrain from testifying, then the court can draw no inference of guilt from that decision.
Receiving a Judgement
After all of the evidence has been introduced, the defendant’s attorney may renew his motion to dismiss. The judge may or may not grant the motion. The prosecutor will then argue why the judge should apply to facts to the law and conclude that that there is no reasonable doubt as to the defendant’s guilt. The defendant’s lawyer will then argue that reasonable doubt remains and that the defendant should be found “Not Guilty”. If the Defendant is found by the judge to be not guilty, then the defendant is free to leave.
If the defendant is found to be guilty or if the defendant has pled guilty, then the judge will conduct a sentencing hearing. At the sentencing hearing, the judge will hear and consider arguments by both sides on the presence or absence of certain factors. Factors may be aggravating, grossly aggravating or mitigating. The presence of aggravating factors makes your case a little worse than average. The presence of grossly aggravating makes your case a lot worse than average. Mitigating factors make your case a little better than average. The judge will weigh these factors to determine what level of punishment is appropriate in your case.
Penalties for Impaired Driving
There are five levels of punishment for Impaired Driving in North Carolina. Level 1, the most severe punishment, can bring a fine of up to $4,000 and imprisonment up to two years. Level 2 carries up to a $2,000 fine and up to one year in prison. The maximum punishment for Level 3 DWI is a $1,000 fine and six months in prison. Level 4 can bring with it a $500 fine and 4 months imprisonment. And for the least severe, level 5, the impaired driver can be fined $200 with no more than two months imprisonment.
Get an Attorney on Your Side
If you are charged with DWI, you should call us at 980-237-6948 immediately. We may be able to secure a limited driving privilege that will allow you to drive for work, school or for other reasons. We can help you determine if you have a good case for trial. If you do have a good case for trial, we can determine what witnesses or evidence you should bring to court. In addition, there are mistakes that people frequently make that could have very negative consequences on the outcome of your case. The experienced attorneys at Speaks Law Firm can help you avoid those costly mistakes.
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Wilmington, NC 28401