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COMMON
QUESTIONS ABOUT D.W.I.'S
This
is general information based upon North Carolina
law. Every case is different
and the application or exceptions to the general
laws may be different in your case. You should
always consult an experienced and knowledgeable
North Carolina D.W.I. attorney if you have specific questions
or if you need any legal advice on these issues.
Teague & Glover, P.A.has been representing people
charged with D.W.I. since 1981.
CLICK
ON YOUR QUESTION.
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What is a D.W.I.?
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I was arrested for D.W.I. the other night, and the Magistrate
took my driver's license. When and how can I
get it back?
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I blew over a .08 on the breath test. Can a lawyer really
do anything for me?
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If I am convicted of D.W.I., will I go to jail?
-
If I am convicted of D.W.I., will I lose my
driver's license?
-
If I am convicted and my driver's license is revoked, is there
any way I can get some type of limited driving
privilege to drive to work and take care of
my family?
-
I was recently arrested for D.W.I., and they seized and impounded
my vehicle. Can I get it back?
-
What is an alcohol assessment, and should I get one?
| 1. |
What is a D.W.I.? |
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In
North Carolina
, there is no difference between a D.W.I.
and a D.U.I. "D.W.I."
stands for "driving while
impaired," a misdemeanor that carries
with it a maximum sentence of 2 years in
prison and a $4,000 fine. There is also a
mandatory loss of your N.C. driving
privilege ranging from 1 year to
permanent, depending upon your record. In
addition, it is possible that your
personal automobile insurance rates could
increase up to 800% for 3 years following
a D.W.I. conviction.
There
are several aspects to the crime of D.W.I.
1)
A "driver"
or "operator"
is someone who is in actual physical
control of a vehicle that is in motion or
has the engine running.
2)
A "vehicle"
includes every device in, upon, or by
which any person or property is or may be
transported or drawn upon a highway,
except for devices moved by human power or
used exclusively upon fixed rails or
tracks. "Vehicle"
does not include a horse, but it does include a bicycle or lawnmower (so now you can get a DWI while
driving a bike or lawnmower). "Vehicle"
does not include an electric personal
assistive mobility device, or any 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.
3)
Driving can occur on any "highway,
street or public vehicular area. “Highway” or "street"
includes the entire width between property
or right-of-way lines of every way or
place of whatever nature of which any part
is open to the use of the public as a
matter of right for the purposes of
vehicular traffic. "Public
vehicular area" generally means
any area open to and used by the public
for vehicular traffic at most
universities, schools, businesses,
neighborhoods, federal property, beach
driving areas, within or leading to a
subdivision, private property designated
as a public vehicular area, and other
places that don’t exactly meet the
definition of a “street”
or “highway”.
4)
"Impairment" means either a)
"under the influence" of an
"impairing substance," or b)
having consumed sufficient alcohol to
have, at any relevant time after the
driving, an alcohol concentration of .08
or more.
An "impairing
substance" can be alcohol,
illegal drugs, cough syrup and/or
prescription medications.
A person is "under
the influence" if his/her
physical and/or mental faculties are
appreciably impaired.
Chemical analysis of blood-alcohol
levels, by either breath tests or blood
tests, measure alcohol concentration. Both
breath tests or blood tests must be
administered in accordance with specific
state laws and regulations,
A
driver's refusal
to take a valid breath or blood test will
normally result in a 1-year license
revocation with no limited driving
privilege available except in certain
situations.
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| 2. |
I
was arrested for D.W.I.,
and the Magistrate took my drivers license.
When and how can I get it back? |
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Generally,
your privilege to drive in N.C. will be
revoked for 30 days if you are arrested
for an implied consent offense and any of
the following happens:
1)
You refuse a breath or blood test;
2) Your alcohol concentration is over a
.08 (or .04 if you were driving a
commercial vehicle); or
3) You are under 21 and your alcohol
concentration is .01 or over.
After
30 days you may get your driver’s
license from the Clerk of Court after you
pay a reinstatement fee of $100.00.
Ordinarily, you may then drive without any
restrictions until your case is resolved
in court. Your ability to drive after your
case is over will then depend upon the
results of your case.
It
may be possible for you to obtain a
limited driving privilege that would allow
you to drive for the limited purposes of
working, school or maintaining your
household during limited hours for days 11-30 of the initial 30-day
revocation period. There are many factors
that may affect your eligibility for this
limited driving privilege, and several
things you have to complete before you can
request the limited driving privilege.
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| 3. |
I
blew over a .08 on the breath test. Can
a lawyer really do anything for me? |
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There
are three main ways an experienced D.W.I.
attorney can help you when you are charged
with a D.W.I. and have an breath/blood alcohol
concentration (BAC) of .08 or higher.
First,
regardless of your BAC,
there are still many other things the
State must prove beyond a reasonable doubt
in order to convict someone of a D.W.I.
Our firm can determine
whether the officer followed all of the
applicable laws, regulations and rules during the arrest and
testing processes. Our firm can also
protect your constitutional and statutory
rights during the trial or other Court
hearings.
Generally, an officer must have reasonable and articulable suspicion to believe that you committed a
crime or moving violation before he can
stop you or your car. Before an officer
can give you an alcohol
screening test (i.e., Alco-Sensor, or
hand-held breath test), the officer must
have reasonable
grounds to believe that that you
committed an implied consent offense
(i.e., D.W.I.), or that you consumed
alcohol and committed a moving violation,
or that you were the driver in a wreck.
The alcohol-screening test must be
performed in accordance with applicable
statutes and regulations, or the results
may be invalid. The officer must then have
probable
cause to arrest you. Probable cause
can include the officer's observations and
tests results, including the results of
the alcohol-screening test and Field
Sobriety Tests. Both of our attorneys are
certified to administer the NHTSA
(National Highway Traffic Safety
Administration) Standardized Field
Sobriety Tests (FSTs) and can makes sure
that the officer performed the
standardized tests as required. Ordinarily, the
officer must inform you of your Miranda
rights before he can ask you questions
while you are in custody and use your
answers against you in court. The chemical
analysis (i.e., Intoxilyzer test or
blood test) must be performed in
accordance with applicable statutes and
regulations, or the results may be invalid
and/or inadmissible. Your case may require
an expert witness to explain why the
breath or blood test results are
inaccurate or invalid in your case.
Second,
even if you are convicted, our firm will work to reduce your
punishment, including the amount of fines,
the length of your community service, and
the severity of the conditions of your
probation.
Third,
even if you are convicted, our firm can determine whether you
are eligible for a limited
driving privilege and then work with
you to accomplish and obtain the various
things necessary in order for you to
request and obtain a limited driving
privilege so that at least you can drive
to work or school during the one-year
revocation of your driver’s privilege.
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| 4. |
If
I am convicted of D.W.I., will I go to jail? |
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Your
actual punishment level will depend upon
your prior record or other factors in your
case.
If
you have a
prior D.W.I. conviction within the 7
years before your present arrest, or prior
to your present conviction, or if you have
any other "grossly
aggravating factors" present in
your case, you will be required to serve
between a week and 2 years in jail. The
Judge will determine the actual length of
your sentence.
If
you do not have any "grossly
aggravating factors" present in
your case, then you may still have to
serve up to 72 hours in jail, depending
upon the existence of "aggravating
factors" or "mitigating
factors," or the Judge may not
require any active jail time.
GROSSLY
AGGRAVATING FACTORS
- A prior conviction
for an offense involving impaired
driving if:
a.
The conviction occurred within seven years
before the date of the offense for which
the defendant is being sentenced; or
b. The conviction occurs after the date of
the offense for which the defendant is
presently being sentenced, but prior to or
contemporaneously with the present
sentencing.
Each prior conviction is a separate
grossly aggravating factor.
- Driving by the defendant at the time of the offense
while his drivers license was revoked
under G.S. 20-28, and the revocation
was an impaired driving revocation
under G.S. 20-28.2(a);
- Serious injury to another person caused by the
defendant's impaired driving at the
time of the offense.
- Driving by the defendant while a child under the age of
16 years was in the vehicle at the
time of the offense.
AGGRAVATING
FACTORS
- Gross impairment of the defendant's faculties while
driving or an alcohol concentration of
0.16 or more within a relevant time
after the driving.
- Especially reckless or dangerous driving.
- Negligent driving that led to a reportable accident.
- Driving by the defendant while his driver’s license
was revoked.
- Two or more prior convictions of a motor vehicle offense
not involving impaired driving for
which at least three points are
assigned under G.S. 20-16 or for which
the convicted person's license is
subject to revocation, if the
convictions occurred within five years
of the date of the offense for which
the defendant is being sentenced, or
one or more prior convictions of an
offense involving impaired driving
that occurred more than seven years
before the date of the offense for
which the defendant is being
sentenced.
- Conviction under G.S. 20-141.5 of speeding by the
defendant while fleeing or attempting
to elude apprehension.
- Conviction under G.S. 20-141 of speeding by the
defendant by at least 30 miles per
hour over the legal limit.
- Passing a stopped school bus in violation of G.S.
20-217.
- Any other factor that aggravates the seriousness of the
offense.
Except
for the factor in subdivision (5), the
conduct constituting the aggravating
factor must occur during the same
transaction or occurrence as the impaired
driving offense.
MITIGATING
FACTORS
- Slight impairment of the defendant's faculties resulting
solely from alcohol, and an alcohol
concentration that did not exceed 0.09
at any relevant time after the
driving.
- Slight impairment of the defendant's faculties,
resulting solely from alcohol, with no
chemical analysis having been
available to the defendant.
- Driving at the time of the offense that was safe and
lawful except for the impairment of
the defendant's faculties.
- A safe driving record, with the defendant's having no
conviction for any motor vehicle
offense for which at least four points
are assigned under G.S. 20-16 or for
which the person's license is subject
to revocation within five years of the
date of the offense for which the
defendant is being sentenced.
- Impairment of the defendant's faculties caused primarily
by a lawfully prescribed drug for an
existing medical condition, and the
amount of the drug taken was within
the prescribed dosage.
- The defendant's voluntary submission to a mental health
facility for assessment after he was
charged with the impaired driving
offense for which he is being
sentenced, and, if recommended by the
facility, his voluntary participation
in the recommended treatment.
- Any other factor that mitigates the seriousness of the
offense.
Except
for the factors in subdivisions (4), (6)
and (7), the conduct constituting the
mitigating factor must occur during the
same transaction or occurrence as the
impaired driving offense.
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5. |
If
I am convicted of D.W.I., will I lose my drivers
license? |
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Yes,
upon a conviction of D.W.I. a revocation
of your privilege to drive in North Carolina is mandatory.
In addition, if you have a license
from another State, N.C. D.M.V. is
required to report that conviction to your
home state, and you may lose your license
there, as well. If
you have been found guilty of committing
another D.W.I. within the three years
prior to your current offense, N.C. D.M.V.
will revoke your privilege to drive in North Carolina
for 4 years. If
you have previously been found guilty of
committing 2 or more prior D.W.I.
convictions, and the most recent one
occurred within the five years before your
current offense, D.M.V. will revoke your
privilege to drive in North Carolina
permanently.
However, if you
have no D.W.I. convictions within the
previous 7 years, you may be eligible for
a limited
driving privilege that would allow you
to drive during limited hours for certain
essential purposes, such as employment;
education; maintenance of your household;
court-ordered treatment or assessment;
court-ordered community service; and
emergency medical care. It is the Judge's
decision whether to grant you this limited
driving privilege. There are numerous
restrictions on a limited driving
privilege, and the violation of any one of
them could result in a conviction of
Driving While License Revoked, which
carries an additional 1-year revocation
with no limited driving privilege. A
limited driving privilege will not allow
you to drive certain commercial vehicles
for any purpose, including most
tractor-trailers and buses. Our firm can determine
whether you are eligible for a limited
driving privilege and then work with
you to accomplish and obtain the various
things necessary in order for you to
request and obtain a limited driving
privilege so that at least you can drive
to work or school during the one-year
revocation of your driver’s privilege.
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| 6. |
If
I am convicted and my drivers license is
revoked, is there any way I can get some
type of limited driving privilege to drive
to work and take care of my family? |
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If you have no D.W.I. convictions within the
previous 7 years, you may be
eligible for a limited driving privilege
that would allow you to drive during
limited hours for certain essential
purposes, such as employment; education;
maintenance of your household;
court-ordered treatment or assessment;
court-ordered community service; and
emergency medical care. It is the Judge's
decision whether to grant you this limited
driving privilege. There are numerous
restrictions on a limited driving
privilege, and the violation of any one of
them could result in a conviction of
Driving While License Revoked, which
carries an additional 1-year revocation
with no limited driving privilege. A
limited driving privilege will not allow
you to drive certain commercial vehicles
for any purpose, including most
tractor-trailers and buses. Our firm can determine
whether you are eligible for a limited
driving privilege and then work with
you to accomplish and obtain the various
things necessary in order for you to
request and obtain a limited driving
privilege so that at least you can drive
to work or school during the one-year
revocation of your driver’s privilege. |
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| 7. |
I
was recently arrested for DWI, and they
took the car I was driving. How and when
can I get
it back? |
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If
you are charged with a D.W.I., and if at the
time of your arrest your driver's license
was revoked because of a prior
"impaired driving revocation",
the vehicle you were driving at the time
of your arrest may be impounded and
forfeited. If
you are the person arrested and the
sole owner of the vehicle, you
probably can not get the vehicle back
until after your trial, and then only if you are found
"not guilty." If you are
convicted of D.W.I., then you will
probably lose the vehicle permanently.
Regardless of the outcome of your case,
you will be responsible to pay any towing
and storage fees associated with the
seizure, even if you are found "not
guilty" or your charges are
dismissed.
If
you were arrested but you were not the owner of the vehicle
seized, the
owner, including a lienholder, may be able
to get the vehicle back quickly, and the owner
should contact the Clerk of Court in the
county where the charges are pending to
get more information about obtaining the
vehicle.
Our
attorney, Danny Glover, Jr., was published
twice in 2004 and once in 2006 by the North
Carolina Academy of Trial Lawyers on
the topic of North Carolina D.W.I.
vehicle seizures, and has lectured
N.C. D.W.I. attorneys numerous times on
the subject of D.W.I. seizures.
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| 8. |
What is an alcohol assessment, and should I get one? |
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An
alcohol assessment is a standardized
evaluation to determine whether or not you
have a substance abuse handicap, according
to state guidelines. It also involves a
clinical interview with a substance abuse
counselor. At the conclusion of the
assessment, depending on a number of legislatively
mandated factors, the counselor
will recommend some type of alcohol class
or treatment, which you will be ordered to
complete if you are convicted of a D.W.I.
You
must take your D.W.I. citation and your
alcohol concentration testing results
(breath or blood test results) to your
assessment. The assessment costs
between $100 and $135, depending upon the
counselor that you choose to use.
If
you have been charged with D.W.I., you
should obtain an alcohol assessment before
your court date. Obtaining the assessment
and voluntarily participating in any
recommended classes or treatment qualifies
as a "mitigating factor" for
sentencing purposes and may help reduce
your punishment if you are convicted of
D.W.I.
In
northeastern North Carolina, you may obtain an alcohol or substance
abuse assessment from:
Joann
Hummers (252) 261-9512 - Southern Shores
Martha Early (252) 338-0121 - Edenton
David Collins (252) 232-1900 - Currituck
Price Bowen (252) 862-4441 - Ahoskie
Andrea F. Facci (252) 255-1847 - Kitty
Hawk and Frisco
or
from Pathways
Counseling Center
(252) 482-5330 - Edenton
(252)
338-5334 - Elizabeth
city
or
from Albemarle Mental Health
Currituck
County (252) 453-8886
Chowan County (252) 482-7493
Pasquotank County (252) 331-0803
Perquimans County (252) 426-5107
Manteo (252) 473-1135
Nags Head (252) 441-9400
Avon (252) 995-4951
Click
on this link to find assessment
agencies throughout North Carolina.
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Copyright
Teague & Glover, P.A.| Personal Injury Attorneys and Criminal Defense
Lawyers | Website by
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Concentration in: Personal Injury, Criminal Defense, Traffic Tickets,
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Manteo, Corolla, Duck, Hatteras, Currituck County, Chowan County, Edenton,
Perquimans County, Hertford County, Pasquotank County, Camden County,
Gates County |
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