Driving While Impaired (DWI) FAQs
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 has been representing people charged with D.W.I. since 1981.
CLICK ON YOUR QUESTION.
- What is a D.W.I.?
- 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?
- I blew over a .08 on the breath test. Can a lawyer really do anything for me?
- 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?
- What about my CDL?
- 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?
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.
I was arrested for D.W.I., and the Magistrate took my drivers license. When and how can I get it back?
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.
I blew over a .08 on the breath test. Can a lawyer really do anything for me?
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., breath test 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.
If I am convicted of D.W.I., will I go to jail?
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
(1) 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; or
c. The conviction occurred in district court; the case was appealed to superior court; the appeal has been withdrawn, or the case has been remanded back to district court; and a new sentencing hearing has not been held pursuant to > G.S. 20-38.7.
Each prior conviction is a separate grossly aggravating factor.
(2) Driving by the defendant at the time of the offense while his driver's license was revoked under > G.S. 20-28, and the revocation was an impaired driving revocation under > G.S. 20-28.2(a).
(3) Serious injury to another person caused by the defendant's impaired driving at the time of the offense.
(4) 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
(1) Gross impairment of the defendant's faculties while driving or an alcohol concentration of 0.15 or more within a relevant time after the driving. For purposes of this subdivision, the results of a chemical analysis presented at trial or sentencing shall be sufficient to prove the person's alcohol concentration, shall be conclusive, and shall not be subject to modification by any party, with or without approval by the court.
(2) Especially reckless or dangerous driving.
(3) Negligent driving that led to a reportable accident.
(4) Driving by the defendant while his driver's license was revoked.
(5) 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.
(6) Conviction under > G.S. 20-141.5 of speeding by the defendant while fleeing or attempting to elude apprehension.
(7) Conviction under > G.S. 20-141 of speeding by the defendant by at least 30 miles per hour over the legal limit.
(8) Passing a stopped school bus in violation of > G.S. 20-217.
(9) Any other factor that aggravates the seriousness of the offense.
Except for the factor in subdivision (5) the conduct constituting the aggravating factor shall occur during the same transaction or occurrence as the impaired driving offense.
MITIGATING FACTORS
(1) 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.
(2) Slight impairment of the defendant's faculties, resulting solely from alcohol, with no chemical analysis having been available to the defendant.
(3) Driving at the time of the offense that was safe and lawful except for the impairment of the defendant's faculties.
(4) 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.
(5) 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.
(6) 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.
(6a) Completion of a substance abuse assessment, compliance with its recommendations, and simultaneously maintaining 60 days of continuous abstinence from alcohol consumption, as proven by a continuous alcohol monitoring system. The continuous alcohol monitoring system shall be of a type approved by the Department of Correction.
(7) Any other factor that mitigates the seriousness of the offense.
Except for the factors in subdivisions (4), (6) and (6a), the conduct constituting the mitigating factor shall occur during the same transaction or occurrence as the impaired driving offense.
If I am convicted of D.W.I., will I lose my driver's license?
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.
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?
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.
Recently DMV began applying N.C.G.S. 20-17.4(a)(7) and (9), which state that a civil license revocation (generally known as the 30 day revocation that occurs generally if you blow .08 or higher or you refuse a breath or blood test) will disqualify a driver from holding a CDL or driving a commercial motor vehicle for one year. This disqualification applies regardless of the outcome of your DWI case, and it can be enforced before or after your DWI conviction. If you have a CDL, it is important that you contact us immediately, as the only hearing allowed related to this has to be requested within 10 days of the date of your arrest.
I was recently arrested for DWI, and they took the car I was driving. How and when can I get it back?
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, once in 2006 and again in 2010 by the North Carolina Advocates for Justice 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.
What is an alcohol assessment, and should I get one?
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 fees average approximately $125.00.
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:
Atlantic Coastal
Counseling
Contact: Jeff Jaworski - Monday –
Friday 8:00 a.m. – 5:00 p.m. Evening and weekend
appointments available.
Carolina Assessment &
Treatment Services, LLC.
Contact: William Mizelle - Saturdays
only.
Coastal Counseling
Contact: Christopher Roberts – Short and
long term treatment groups are on Wednesday and some
Saturdays.
In Touch Wellness
50840 NC 12,
Contact: Andrea F. Facci-Group
Meeting in Frisco on Mondays from 8:00 a.m. – 11:00 a.m.
Group meeting in
New Beginnings
Assessments & Counseling
Contact: Price Bowen
Pathway Counseling
Center
Profession Counseling
Services
12 Juniper Trail,
Contact: Jo Ann Hummers
