Bush & Powers places a special emphasis on its Driving While Impaired (DWI) practice, as it is a technical area of law that seems to be reinterpreted almost weekly. Much of this continual change can be attributed to the incorporation of modified traffic laws, evidentiary shifts in criminal prosecution, and the reliability of scientific instruments.
Except in a few isolated situations, a DWI prosecution begins with a perceived violation of traffic law. Some are subtle and some are more blatant, but it is very important to consider whether or not there has, in fact, been a violation of traffic law if we are going to validate the beginning of a criminal process. The standards allowing an officer to conduct a “pull-over” are an admittedly lower burden than actually proving someone guilty beyond a reasonable doubt. However, the State must satisfy various elements before it can legitimately subject anyone to an investigatory stop.
Throughout the DWI criminal process, officers are continually collecting evidence. Many believe this to be made up of only a test of one’s breath, or maybe an assessment of his or her performance on Field Sobriety Tests (FST). However, as police officers are trained in collecting all types of evidence, what can be gathered through machines and standardized tests is only a fraction of what is collected during a DWI prosecution. This becomes extremely important to any accused person’s defense, as much of the secondary evidence that is collected can be exculpatory in nature.
Further, as officers are highly trained in collecting various types of evidence, they are also subject to certification and continuing education regarding such. It is important for any DWI defense to force the State and its officers to validate any screening procedures they use, from legitimizing the accuracy of their radar guns, to conducting standardized tests in the field, to administering the Intoxilyzer at intake.
The Intoxilyzer becomes central to many DWI prosecutions, as it provides the State with what it argues is an accurate reading of a subject’s Blood Alcohol Content (BAC). Of course, many accused of DWI refuse alcohol screening after arrest. But for those who submit to the Intoxilyzer, there are many factors to be considered in defending or refuting what the machine has to say.
Bill Powers has received training on Alcohol Testing and Screening Devices, and has lectured on the possibility of skewed results of the instrument to other attorneys. He additionally is a General Member of the National College for DUI Defense, Inc. Admittedly, the Intoxilyzer can be relatively accurate given ideal sampling conditions. However, determining whether the particular machine that an accused submits to is working properly and is under ideal conditions can be extremely relevant to one’s guilt or innocence.
Frequently Asked Questions
1. I submitted to the Intoxilyzer after being arrested for DWI. Did I make a mistake?
In most cases, no. There is no absolute rule as to whether it is better for one’s defense to submit a breath sample or not, but regardless of the circumstances, a Refusal will result in a one-year revocation of that person’s North Carolina Driver’s License. Also, the reading on the Intoxilyzer is not necessarily determinative of guilt; in this, refusing to submit could unnecessarily revoke someone who has another issue going to his or her innocence.
2. This is my first DWI. Can I be sentenced to active prison time?
Yes. However, barring the presence of Grossly Aggravating Factors, most convicted of a first-time DWI in Mecklenburg County are sentenced to a conditional probationary period. It must be noted, though, that the law provides Judges the discretion to sentence anyone convicted of DWI to active jail time. Moreover, if certain factors are present and proven by the State, one may be sentenced to a period of mandatory jail time, and even a first time offender may be precluded from having a Limited Driving Privilege.
3. I blew over .08. Shouldn’t I just plead guilty?
Pleading guilty based on only a portion of your criminal process may leave a more relevant part ignored. This more relevant part may result in a Dismissal or finding of Not Guilty. As stated above, in many situations, the reading on the Intoxilyzer is not necessarily dispositive.
4. I blew under .08. Won’t the case against me be dismissed?
Not necessarily. North Carolina’s DWI law provides for convictions in the event that a person has a certain Blood Alcohol Content OR is appreciably impaired. In this, it’s very possible that despite being under the legal limit, an accused person’s faculties are impaired to the point that he or she can be found guilty.
5. I was in an accident, and while unconscious, the police took a sample of my blood. I never consented to this, so can they use it against me?
In many circumstances, yes. Above and beyond the collection of evidence for a criminal prosecution, blood is also drawn from many accident victims to monitor their vital signs and determine what types of treatments and medications are available to medical staff if necessary. Once the sample is taken from the injured party, it is often legitimately made available to law enforcement. There are, however, substantial issues regarding the chain of custody of the sample that can be considered in suppressing the BAC results.
6. After I was arrested for DWI, my license was suspended for 30 days. Is there anything I can do to get back on the road prior to that?
In most situations, yes. You must meet certain criteria to be eligible for a Pre-trial Driving Privilege, and it is ultimately up to a sitting Judge as to whether it will be signed. But for those who are eligible, we can typically have you legitimately back on the road 11 days after the date of your arrest.