In North Carolina, it is illegal to drive a motor vehicle after having consumed enough alcohol that you have an alcohol concentration of .08 or higher or while you are under the influence of an impairing substance (i.e. drugs - whether legal or illegal). This alcohol concentration can be determined by breathalyzer test or a blood test, depending on the circumstances.
Most arrests for driving while intoxicated (DWI) result in a conviction. A conviction for a DWI is a misdemeanor and will result in a criminal record as well as an enormous increase in automobile insurance. If arrested, you are strongly encouraged to seek the advice and representation of an attorney. To be convicted, the prosecutor must prove the following things to the judge: (A jury does not become involved unless there is an appeal.)
IMMEDIATE REVOCATION OF DRIVERS LICENSE AFTER BEING CHARGED WITH DWI
After being charged with a DWI, your drivers license is immediately revoked for 30 days. After 10 days, you may be eligible for a limited driving privilege. The following conditions must apply to you to be eligible for this privilege: (1) at the time of the offense, you held either a valid drivers license or a license that has been expired for less than one year; (2) you do not have an unresolved pending charge involving impaired driving except the charge for which your license is revoked or additional convictions of an offense involving impaired driving since being charged with this violation; (3) the license has been revoked for at least 10 days if the revocation is for 30 days or 30 days if the revocation is for 45 days; an (4) you have obtained the necessary substance abuse assessment by a court approved registered facility. There are different criteria for a pre-trial limited driving privilege if the drivers license was revoked indefinitely
If these conditions apply to you, you must wait at least 10 days before requesting a limited driving privilege while you are waiting for your court date. You must have completed a Substance Abuse Assessment prior to applying for the limited driving privilege. Assessment fees are set by law at $50.00. You can get your assessment through Wake County Human Services (250-1122) or another similar court approved agency.
When you go to court for your limited driving privilege, you must bring with you a Petition for Limited Driving Privilege (Form AOC-CVR-9), a copy of your Substance Abuse Assessment performed by a court approved program, a Certified copy of a seven-year Driving History (cost $7.00), a valid DL-123 insurance form from your insurance agent (good for only 30 days; the court will accept a faxed copy) and three copies of a fully completed, typed, proposed Limited Driving Privilege. In Wake County, these documents must be filed with the Civil Clerk of court first at a fee of $70.00. You would then appear in front of a Wake County District Judge at the appointed time on Tuesday, Wednesday, or Thursday. There is normally a one day delay between the date you file the paperwork and the date you have the hearing. Please see our office for the appropriate forms and procedure to obtain a limited driving privilege.
To be convicted of a DWI, the prosecution must show that the officer had probable cause to stop you, probable cause to arrest you and must prove beyond a reasonable doubt that you were appreciably impaired. Below is an explanation of what the prosecutor must prove.
PROBABLE CAUSE TO STOP
The reason or probable cause that the officer had to stop you is a matter within the police officers professional judgment. The officer could give almost any reason whatsoever for stopping you, such as speeding, crossing the yellow line, swerving, excessively slow driving, expired inspection or registration, etc. The officers testimony that one of these reasons existed, based on his professional judgment and years of experience is usually enough for the judge to find that the police officer had probable cause to stop you.
After the police officer stops you, he must also have reason to suspect that you were driving after drinking or under the influence of an impairing substance to arrest you for DWI. To prove this, the officer will indicate in court his observations about your physical appearance and disposition such as slurred speech, red and glassy eyes, the odor of alcohol on your breath or that you appeared incoherent. The officer may also use at this point what is called field sobriety test. Field sobriety tests can include reciting the alphabet forward or backwards, the pencil to eye test, the hand to nose test, walking the yellow line forward and backwards, and any other number of other coordination type of tests that the officer may think will help to determine whether you have been drinking or under the influence of drugs.
Another type of test that the officer may use to help determine whether you have been drinking or under the influence of drugs while driving is an alco-sensor. This is what some people call the mini breathalyzer. It is a miniature hand held machine that the officers carry in their vehicle to give them a rough blood alcohol concentration reading. If, after blowing into this machine, the reading is high enough, the officer may use this result in finding probable cause to arrest you. The officer cannot, however, use this result in substitution of doing the formal Breathalyzer test downtown.
Finally, to convict you of a DWI, the prosecutor must prove to the court beyond a reasonable doubt that you were appreciably impaired. Evidence of impairment includes your breathalyzer reading of a .08 or above and the results of the police officers observations of you as well as the results of the field sobriety tests. In addition, the fact that you were in an accident, your car is in a ditch, etc., can also be used against you. If you were injured in an accident and are unable to do a breathalyzer test the police officer can request the hospital do a blood test to determine your blood alcohol content. If you refuse to allow a breathalyzer test or a blood test, then your drivers licenses will be administratively revoked for 1 year, no matter the result at the trial concerning your DWI. You can be convicted of a DWI without a breathalyzer or blood test as long as the police officer has enough evidence from his physical observations and field sobriety tests. Failure or refusal to take the Breathalyzer or blood test can be used against you at trial.
There is an automatic revocation of driving privileges for a period of one year for a refusal to submit to the Breathalyzer when stopped for suspicion of a DWI. The person may be entitled to a hearing for a limited driving privilege six months into the revocation. The person must have had a valid drivers license or it had been expired for less than one year at the time of the charge. There can be no previous refusal or conviction of a DWI within the past seven years, no unresolved DMV issues pending, no pending DWIs and no convictions since the original charge, and no accident that resulted from death or critical injury to person. The underlying charge, which resulted in the refusal, must have been finally disposed of with no conviction or a conviction under the statute that allows a limited driving privilege, and person has done an alcohol assessment as required by law.
PUNISHMENT FOR A DWI CONVICTION
Once you have been convicted of a DWI, there are five levels of punishment. Level one is the most serious level. This level is for people who have had one or more convictions in the past seven years, or who are driving with a license that has been revoked due to a prior DWI, or who are driving with a child less than 16 in the car, or who have caused serious personal injury to another because of their driving while impaired. Level five is the least serious punishment that you can receive and usually is given to first time offenders. This level is for a person who has no prior convictions for a DWI and has no aggravating factors with this DWI.
Aggravating factors are especially negative factors. Some aggravating factors include a very high breathalyzer reading of .16 or more, especially reckless driving, a bad traffic record that consists of at least two tickets in the past 5 years that resulted in 3 points or more on your DMV record, alluding arrest, property damage, speeding in excess of 30 mph or being uncooperative with the police officer, etc. When you blow .16 or higher on the Breathalyzer, then you will be required to have a ignition interlock system installed in your vehicle at a cost of several hundred dollars and a monthly monitoring fee. Mitigating factors are positive factors, which can be used to help balance out the negative factors. Mitigating factors can be slight impairment with an alcohol concentration not exceeding .09 driving safely at the time of the stop, a good driving record in the past 5 years, or voluntarily doing an alcohol assessment program at an approved facility before you go to court.
COSTS, FINES, and COMMUNITY SERVICE REQUIREMENTS
Costs include $100.00 for court costs, a fine up to $200.00 for a Level Five offender, a $50.00 alcohol assessment fee, a $50.00 license restoration fee and a community service fee of $200.00. In addition to these immediate costs, you will have attorney fees and an increase of up to 450% on your insurance. For a Level Five offender, you have to do 24 hours of community service (within 30 days). Finally, you have to do an alcohol assessment program through an approved facility if you have not already done so before court.
LICENSE REVOCATION FOLLOWING CONVICTION OF DWI
After going through the court process, paying fines and complying with all the other terms and conditions that the judge will impose on you, the next problem you have to face will be with the Department of Motor Vehicles. The DMV will revoke your license for a one year period after you have been convicted of a DWI for a level Five. If you have not had any prior convictions, at the time you are in court before the judge, you or your attorney can request a limited driving privilege, if you meet the criteria. A limited driving privilege allows you to drive for the purposes of work, community service, court ordered treatment and school in a limited specific geographic area during limited specific hours. A limited driving privilege will usually allow you to drive essentially from 6 am until 8 pm Monday through Friday within the conditions stated above. If you need to drive outside of these standard hours or on weekends, you would need special permission from the judge. Reasons for this variation might include your job or your family.
HIRING AN ATTORNEY
Because of the serious nature of a DWI arrest and the potential for jail terms, loss of license, heavy fines, and a criminal record, it is advisable to be represented by an attorney during the court proceedings. You always have the right to hire your own attorney. The attorneys fee will vary according to the attorney and the seriousness of the offense. The advantage to hiring your own attorney is you get to choose who that attorney will be. You also have the option to request a court appointed attorney. To qualify for a court appointed attorney, you must complete an Affidavit of Indigency, showing your income and your expenses. If after completing this form, the judge decides that you cannot afford an attorney, he can appoint one from a list of attorneys that do court appointed work. You have no voice in who the judge will appoint to represent you.
Some counties have a Public Defenders Office who will be appointed to represent you if you so request and qualify for that service. If you use the services of the court appointed attorney or a Public Defender and you plead guilty or are found guilty, the judge will order you to reimburse the State of North Carolina for using a court appointed attorney. The amount that you have to pay varies according to how many hours your attorney worked on your case. Generally speaking, the judge will order you to pay $100.00 - $250.00. This amount is normally less than what you would have to pay for a private attorney.
Due to the seriousness of the offense, the NC general Statutes make it extremely difficult to plea bargin a DWI to a lesser offense or to just dismiss the charges outright. You will need an attorney to assist you in dealing with the legal proceeding.
SPECIAL PROVISION FOR DRIVERS UNDER 21
It is illegal in North Carolina, for a driver under the age of 21 to drive while consuming alcohol or with any level of alcohol in their system. Even if the driver blows much less than .08, such as .01 or .02, the driver can be charged with a violation of this law. This law is punished the same as a DWI. Thus, the driver would be subject to a license revocation, insurance increase, and the same levels of punishment as discussed above.
The acronyms DUI, DWI, OMVI and OVI all refer to the same thing: operating a vehicle under the influence of alcohol or drugs.
- The Ohio Bar Asociation