Being arrested and charged with a NC DWI is a serious offense, although it is a misdemeanor.  For the State to convict an individual of DWI, the evidence must establish three (3) elements. The first two elements, however, are essentially giveaways. The state must prove:

  1. The accused drove a vehicle,
  2. on a highway or street in the county where charged (in the state of NC), AND
  3. while either
    • under the influence of an impairing substance (alcohol, drugs, or a combination) OR
    • shown to have an alcohol blood concentration of 0.08% or more (either by breathalyzer and/or blood sample).

Commercial drivers, those carrying CDL licenses, are held to a lower standard.  The legal limit for commercial drivers is 0.04%. The statute for your review can be found at N.C.G.S.20-138.1

As you can see, the first two elements are commonsense and satisfied if the arresting officer observes you behind the wheel. On occassion, there is a dispute as to whether the State can actually prove that a defendant was driving the vehicle. A common scenario is where there is a single car accident, and the alleged “driver” is standing outside of the vehicle when the police arrive at the scene. In most cases, however, this part of the charge is not seriously contested.

By far, the most difficult part of the NC DWI defense is the third element. If the person charged refuses to “blow” or if the machine does not register a breath sample even though the person is attempting to cooperate, the State cannot rely on the breathalyzer reading of 0.08 or more. In these cases, the evidence will rest on the officer’s standard description of “red, glassy eyes,” “strong odor of alcohol on or about the person,” “unsteady and unstable on their feet,” and other customary descriptions of impairment. Because of conservative leaning judges and juries, this description is usually accepted unless the defendant appears to be an upstanding, articulate, very presentable individual. Otherwise, it is an uphill battle seldomly won.

If there is a breathalyzer reading of 0.08 or greater, the only defense is that the conduct described does not comport with what the “instrument” (machine) shows. Certainly, an 0.08 or 0.09 is defensible. Juries tend to give benefit of doubt in those cases as we all know there is no “perfect machine,” no matter how emphatic testifying officers claim their “instrument” to be.

District Court (Judge trial) v. Superior Court (Jury trial)
Your first trial will be in front of a judge in District Court. Judges in North Carolina are publicly elected. They are commonly former prosecutors, and they answer to their constituents. They are under significant pressure from the press and groups like MADD to treat NC DWI cases very strictly. If cases are dismissed, for legal reasons, judges are routinely identified and held up for scorn in election years.

In Charlotte, there are newspaper articles and even tv news stories about cases that are “thrown out on legal technicalities.” Of course, the underlying facts or basis for the dismissal are often muted or sometimes not included. In District Court trials, the only effective way to win is to show legal error on the part of the police, either insufficient “reasonable suspicion” to stop a vehicle or lack of “probable cause” to arrest.

If you lose at the first trial, you can immediately appeal to the Superior Court where you will be able to have your case heard before a jury of your peers. This process takes several additional months, but it is here that you can have your full case tried. All jurors must vote unanimously to find you “guilty” or “not guilty.” You will hear the same testimony by the officer, and your lawyer may or may not advise you to testify.

Despite the judge’s instruction that you are not required to testify and that your failure cannot be held against you, juries naturally want to hear your side. You should listen and adhere to your lawyer’s advice in this critical area. We seldomly put our clients on the stand unless there are really extenuating circumstances. If the State has not proven an element or has a weak case, the last thing you want to do is testify and “fill in the missing blanks.”

The evolution of video
In South Carolina, by comparison, all police vehicles have in-car video equipment. It is digital and automatically activates when the officer engages his “blue lights.” Finally, we are starting to get more cases with video evidence in North Carolina, starting with the Charlotte-Mecklenburg Police Department (CMPD). As NC DWI defense attorneys, we love video evidence. Video keeps “everyone honest.” Judges and juries no longer have to rely on self-serving descriptions by officers and/or defendants. They don’t have to listen to lawyers either. Instead, they can observe what happened at the street and in the breathalyzer room for themselves.

As importantly, they can see how a defendant walks, talks, and acts generally and no longer have to rely almost solely on a machine reading. Quite often, what is observed on video does not match a high BA reading. If you are going to convict someone of “drunk driving,” should they not be given every opportunity to be seen and heard? Afterall, everyone knows “what drunk looks like.” As you can see, this area of law is quite complicated. These are not the cases where you want to place your hopes and trust in an inexperienced criminal defense lawyer. Carefully compare credentials and consult with several DWI attorneys. Then, you should retain the best NC DWI lawyer in whom you have the most confidence. We look forward to an opportunity to sit down and personally discuss your case. Call us now at  704-351-7979 .

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