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Hickory DWI Lawyers

1. Taylor, Jason
: Charged with Driving While Impaired? The first thing you should do when charged with a Driving While Impaired offense is consult an attorney. This contact would preferably occur when you are in the custody of law enforcement officers and prior to submitting to any breath or blood tests for alcohol. However, all too often, it occurs days, weeks, or months later. A knowledgeable attorney can help you preserve defenses and decrease the amount of time you are without your North Carolina driving privileges. Your Rights In December of 2006, a new DWI law took effect in North Carolina which many say is the toughest DWI law in the United States. One thing that makes it tough is that, in the opinion of many, it reduces the rights of the accused. Also, it improperly and UNCONSTITUTIONALLY creates a presumption of guilt. Therefore, it is important that you know what your rights are. The Fourth Amendment to the Constitution requires that all searches and seizures be reasonable. In order for a law enforcement officer to pull you over, the officer must have a reasonable and articulable suspicion that some violation of the law has occurred. This can be through (1) a violation of the rules of the road or (2) a specific articulable fact or facts which would lead a police officer reasonably to conclude, in light of the officer's training and experience, that criminal activity is afoot. They must show that there is a substantial possibility that criminal conduct has, is, or is about to occur. Once the officer has pulled you over, the officer, in order to arrest, must have formed the opinion, satisfactory to himself, that the driver has consumed a sufficient quantity of some impairing substance to have appreciably impaired the driver's mental of physical faculties, or both. In order to form this opinion, the officer will be looking for certain things. These include: (1) visual fact gathering, such as bloodshot eyes and alcohol containers, etc.; (2) aural fact gathering, such as admissions to drinking and slurred speech, etc.; and (3) olfactory fact gathering, such as odor of alcohol and cover up odors such as perfumes and other artificial scents. Next, the officer will use interview techniques, meant to require multitasking. One example will be that the officer will ask for two things at once, such as your license and registration. The officer is trying to divide your attention to see whether you are impaired. If the officer asks you to exit the vehicle, the officer is evaluating your physical abilities from the start. He will be looking to see whether you use the vehicle for balance or maybe whether you leave the car in gear, etc. Based on their findings, they may move to their next trained phase of DWI detection, the pre-arrest phase. This phase includes the standardized field sobriety testing and portable breath testing. The accepted field sobriety tests include the walk and turn test, the one leg stand, and the horizontal gaze nystagmus test (HGN). Every element and test and decision made by the officer must be done in compliance with the rules and regulations. The officer must be qualified to administer and assess the field sobriety tests and their results. Also, as anyone who watches television or movies knows, you have the right to remain silent and that anything you say will be used against you. This is commonly called the Miranda right and it comes into effect once you are in custody. However, you always have a right to remain silent, even when you are not in custody. This is set out expressly in the Fifth Amendment to the Constitution: No person É shall be compelled in any criminal case to be a witness against himself É. U.S. Const., amend. V. Therefore, you should always exercise this right and never agree to answer any questions. The questions they ask are specifically formulated for DWI cases and are made to trap you. Do not answer any questions. Next, although the text of the Fifth Amendment seems to say otherwise, it is not applicable in the context of Breath or Blood alcohol testing. Why? The Leigslature has deemed it to be tied to you licensing privilege and therefore you have "impliedly consented" to submit to alcohol testing as a condition of your license. However, there are certain rights that you have with respect to the breath tests and blood tests, such as the right to refuse to submit a sample (this carries serious license consequences). These rights are set out by statute and are as follows: 1. É you can refuse any test, but your drivers license will be revoked for one year and could be revoked for a longer period of time under certain circumstances, and an officer can compel you to be tested under other laws. 2. The test results, or the fact of your refusal, will be admissible in evidence at trial. 3. Your driving privilege will be revoked immediately for at least 30 days if you refuse any test or the test result is 0.08 or more, 0.04 or more if you were driving a commercial vehicle, or 0.01 or more if you are under the age of 21. 4. After you are released, you may seek your own test in addition to this test. 5. You may call an attorney for advice and select a witness to view the testing procedures remaining after the witness arrives, but the testing may not be delayed for É longer than 30 minutes É. N.C. Gen. Stat. ¤ 20-16.2(a) (2007). These rights must be read to you by the officer and you must be afforded the opportunity to read along with the officer. Id. Even with the revocation set out above, you are likely to be eligible for a limited driving privilege, even if you refuse. If you have never been convicted or charged with DWI before, it is typically beneficial for you to submit to a breath test at the jail if you are not substantially impaired Ð not a handheld unit though. See Portable Breath Tests below. This will enable you to receive a limited driving privilege sooner than if you refuse. However, if there are other factors present, such as little evidence of impairment otherwise, it may be a good idea to refuse the testing. Keep in mind that it will have more serious license consequences, regardless of whether you are convicted. Under the new law, you still have the right to refuse a blood or breath test. However, the officer can now, without a warrant, order a blood test drawn even if you refuse! This is not only a violation of the constitution, but also a violation of professional conduct on the part of the medical professional drawing the sample. (Although the statute purports to exempt the medical professional from liability). A lawyer can also help you get a limited driving privilege in most circumstances. You can usually get a limited driving privilege after 10 days of the initial revocation (the initial revocation when you are charged is 30 days) and you can usually get a limited driving privilege after conviction. In addition, if you refuse the breath test, you are eligible for a limited driving privilege after six months in most circumstances when certain factors are present. Driving While Impaired (DWI) Ð The Offense Driving While Impaired, sometimes known as DWI or DUI, is a criminal offense that carries serious monetary, civil, and criminal penalties. In addition, the effects of a conviction for Driving While Impaired will last far into the future, impacting future insurance premiums, job opportunities, and future sentencing for other offenses. Therefore, Driving While Impaired is not a charge to be taken lightly. In North Carolina, the offense of Driving While Impaired is committed when a person: drives any vehicle upon any highway, any street, or any public vehicular area within this State: (1) While under the influence of an impairing substance; or (2) After having consumed sufficient alcohol that he has, at any relevant time after the driving, an alcohol concentration of 0.08 or more. The results of a chemical analysis shall be deemed sufficient evidence to prove a person's alcohol concentration; or (3) With any amount of a Schedule I controlled substance, as listed in G.S. 90?89, or its metabolites in his blood or urine. N.C. Gen. Stat. ¤ 20-138.1(a) (2006). This means that there are various theories that the State can put forward to prove its case. The first way is to show that the person was "under the influence of an impairing substance." Id. A common misconception is that DWI is "drunk driving." While this is true, it also encompasses other impairing substances, including prescription and over the counter medications. Therefore, you need not be "drunk", only subject to an impairing substance. Second, the North Carolina statute creates a presumption of intoxication when a person has a blood or breath alcohol concentration of 0.08 or more "at any relevant time after the driving." Id. This could be described as a "drunk driving" prong because it relates to alcohol concentration. The language in the statute is broad in that it means that regardless of your alcohol concentration at the time of the stop, if the person tests for alcohol and the result is greater than 0.08 at a time the State deems relevant, there is a presumption of impairment. Finally, for offenses occurring on or after December 1, 2006, the State can prove its case by showing "any amount of a Schedule I controlled substance É in [the charged person's] blood or urine." Id. Included in Schedule I are the following substances: Methamphetamine; Mescaline; Heroin; LSD; and many other opiates, opium derivatives, hallucinogens, and central nervous system depressants. See N.C. Gen. Stat. ¤ 90-89 (2006). This could mean that a lawfully prescribed drug with a derivative of a Schedule I substance found in your system by a blood or urine test would subject you to conviction for DWI even if you were not under the influence of the substance at the time of driving! The legislature has made it clear that it is not a defense to DWI that you were under the influence of a lawfully prescribed drug. See N.C. Gen. Stat, ¤ 20-138.1(b) (2006). Overview of Breath Alcohol Testing Breath alcohol testing is the most common method of measuring alcohol concentration in law enforcement in North Carolina. The principles of breath alcohol testing are as follows: When a person consumes alcohol, the alcohol flows into the stomach, where a small portion is absorbed into the blood through soft mucous lining of the stomach. The alcohol passes from the stomach into the small intestine, where most of the alcohol is absorbed into the blood through the intestinal walls and then is distributed by the blood to watery tissues throughout the body. Breath alcohol testing relies on the exchange of oxygen and carbon dioxide in the lungs, whereby fresh oxygen is taken into the blood and carbon dioxide is evaporated from the blood to the breath. In addition, a small amount of alcohol will evaporate in the breath of someone who has been drinking. It is this that the breath testing devices are measuring. The Intoxilyzer 5000 The Intoxilyzer 5000 is an infrared spectrometry device that measures absorption of certain wavelengths in a chamber of air (breath sample). While this may sound like a highly technical scientific instrument, it is little more than a wheel with filters on it and a special light bulb on either side of a chamber through which one blows air. In fact, there are many problems with the device that are discussed below. Many people call the Intoxilyzer 5000 a "Breathalyzer," but that term is proprietary and is actually what is called a "genericized trademark", like people use "band-aid" to refer to an adhesive bandage. The Intoxilyzer 5000 was invented in the early 1970s and actually still uses a chip that was used in early computers like the Radio Shack TRS-80. The Intoxilyzer 5000 is manufactured in Great Britain and assembled in Owensboro, Kentucky by CMI, Inc. Each State has its own specific programming sequence for the units and therefore each varies by state as to how it is configured, but for the most part, the machines are the same. One important difference in configuration is whether the unit reports the alcohol concentration in one hundredths (0.00) or one thousandths (0.000). If reported in one hundredths, as is done in North Carolina, the machine "truncates" the reading by dropping the last numeral in the reading. In North Carolina, the State utilizes a machine called the Intoxilyzer 5000 to capture evidence of a person's breath alcohol content (BrAC) for evidential use in court. In fact, until recently, the Intoxilyzer 5000 was the only approved breath testing device for evidential use in North Caorlina. See 10 N.C.A.C. 41B.0301 et seq. (2007). The State has just added the Intox EC/IR II, discussed below. For screening purposes, there are several handheld devices approved. See Portable Breath Tests below. North Carolina's stock of Intoxilyzer Model 5000s consists exclusively of 66 and 68 series Intoxilyzers, which are not the newest Intoxilyzer 5000 models. In fact, even the Intoxilyzer 5000 is not the newest model of Intoxilyzers. The Intoxilyzer 8000, which has been rejected for use by some states because of its unreliability, was created to resolve the defect in the 5000 by adding sampled wavelengths to the infrared detector. The reason for their constant attempts at reinventing the wheel is due to the fact their wheel is flawed from the start. Intox EC/IR II Recently, and perhaps because the Intoxilyzer 5000 is not as accurate as once thought, the State has approved the Intox EC/IR II for use. This machine uses a combination electrochemical fuel cell, as found in the Alco-Sensor, AND an infrared detector, as utilized in the Intoxilyzer. This combination supposedly gives results that are more accurate. Among other things, this machine still does not account for the blood-breath partition ratio and its infrared detector is still subject to the same flaws as in the Intoxilyzer 5000. Portable Breath Tests In North Carolina, there are only five (5) portable, or handheld, breath alcohol testing devices approved for use by law enforcement. These are: 1. Alco-Sensor (Manufactured by Intoximeters, Inc.); 2. Alco-Sensor III (Manufactured by Intoximeters, Inc.); 3. Alco-Sensor IV (Manufactured by Intoximeters, Inc.); 4. Alco-Sensor FST (Manufactured by Intoximeters, Inc.); 5. SD-2 (Manufactured by CMI, Inc.); 6. SD-5 (Manufactured by CMI, Inc.). See 10A N.C.A.C. 41B.0503 (2007). These devices are all fuel cell devices, which means they operate by passing a breath sample over a small membrane that reacts with alcohol to create an electric current. The amount of voltage created in the fuel cell by the breath is converted by the machine into a breath alcohol reading. Some units, such as the Alco-Sensor and the Alco-Sensor III, require the operator to press a button to capture a 1 cc sample of breath for analysis. Other instruments, such as the Alco-Sensor IV, automatically capture a breath sample when the machine deems proper. As a general rule, you should never consent to a portable breath testing device. A refusal to submit to this test will not affect your license and it only aids the officer in developing probable cause. Blood Alcohol Testing An alternative to breath alcohol testing is blood alcohol testing. While more invasive, blood alcohol testing is considered the gold standard in determining true alcohol concentration. Blood testing typically involves gas chromatography to determine the concentration of alcohol in a sample of blood. Although blood testing is a more accurate method of determining true alcohol concentration, there are many ways in which a blood alcohol test can result in a false positive or elevated result. First, the method of collection may contaminate the sample, causing a false positive or falsely elevated blood alcohol concentration. Second, there is the issue of fermentation within the vial. Blood naturally breaks down over time and one result of this process is alcohol. If the blood is not properly handled (refrigeration) or if it has been left sitting for an extended period of time, this fermentation in the blood can occur. Third, blood must be handled with care. As discussed above, fermentation can occur with improper handling. Fourth, the site of collection can have a major impact on the result. Arterial blood will have an elevated alcohol concentration during absorption and will not be an accurate measure of the true alcohol concentration of an individual. Therefore, collection should be from a surface vein. Fifth, a sample of serum or plasma will show a different concentration than whole blood. This is because alcohol is dissolved in water and serum and plasma contain more water per unit than whole blood. Therefore, a sample of serum will have a higher alcohol concentration than whole blood. Urine Testing Although some jurisdictions utilize urine testing for alcohol, this testing is not generally performed in North Carolina. This is good in that urine testing is likely to result in a higher test because of the way your body eliminates alcohol. Therefore, you will not normally be asked to submit to a urine test for alcohol. If you are asked to submit a urine sample, you should make efforts to obtain an independent test to combat the low level of reliability of urine testing.