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DUI and DWI

DWI1. My license was seized by the officer, or revoked. How can I get my driving privileges?

In most cases, your license is revoked for a thirty (30) day period following a DWI arrest. In many cases, you can have a restoration of “limited driving privileges” after just ten (10) days. You will need to undergo an “alcohol assessment,” provide proof of current insurance, provide your seven (7) year driving history. I can complete the petition and file on your behalf to ask the court for these privileges.

Normally the court will grant you driving privileges from 6 a.m. until 8 p.m Monday through Friday. If you go to work earlier or later than those times or need to work on weekends, the court will usually extend those hours if you provide the court with a letter from your employer.

I can make the appearance in court for you so you don’t have to take time from your busy life to get your “limited driving privileges.”

2. My license was revoked by the magistrate. When will my driving license be restored?

If you apply for “limited driving privileges,” your limited driving privileges can be granted as soon as ten (10) days after your DWI stop.

If you decide not to apply for “limited driving privileges,” in most cases you will get your license back thirty (30) days after the DWI stop. You will need to pay $100 fee to the Court for this restoration. Your license will be available at the courthouse.

3. How long will my case take to resolve?

It depends. If you’re stopped today, you’ll probably be given a court date about two months from now. You could resolve the case that day, but in most cases that would require you to plead guilty on that day.

In reality, a DWI case can take anywhere from six (6) to nine (9) months. The reason is that Harnett County has an enormous number of cases, not just DWI cases, and the courts are slow to process them all. I’ve had clients who have waited two (2) years for a resolution to their case. Your case probably won’t last that long, but it can typically last months.

Finally, I advise all clients that they should expect a trial. It’s your right to have a trial. A trial is sometimes your best chance for a successful resolution of your case. A trial won’t be scheduled for six (6) to nine (9) months. So hold tight and relax.

The good news is that after the initial suspension of your license, you really have nothing to do until the resolution of the case. At most, you may need to make a few short court appearances until either a trial, dismissal, or plea arrangement is reached. You will probably want to complete any alcohol education classes that have been recommended. But otherwise, you can live your life.

4. What is an “alcohol assessment” and why should I get one?

An alcohol assessment is an hour-long evaluation provided by a private agency approved by the state of North Carolina. They’ll ask you questions about how frequently you drink, how much you drink, and other behavioral issues.

Ultimately the agency will make a recommendation to you about further treatment, if any, you should undergo. If no treatment is advised, you will need to at least complete an ADETS course, which is a 16-hour course about why it’s important not to drink and drive. In many cases, the agency will at least recommend a 20-hour class. In some cases, the agency will recommend more intensive treatment.

If you want to restore your limited driving privileges during the thirty (30) day initial suspension, you must provide an alcohol assessment and proof of at least pre-enrollment to the court. Therefore, the sooner you get your alcohol assessment, the sooner you or your lawyer can petition for limited driving privileges.

In addition, an alcohol assessment is also valuable if you later plead guilty or are convicted of a DWI, as it can be used as evidence of a mitigating factor.

An alcohol assessment will cost $100. While I can’t recommend a specific agency, my clients have generally used Raintree Clinic in Fayetteville.

You can have the agency fax your lawyer your “alcohol assessment” directly. If you hire me, my fax number is (910) 892-0500.

5. My alcohol assessment recommends that I take additional classes. Should I do that?

If you wish to restore your limited driving privileges, the petition you sign states that you will take such classes. So the answer is generally “yes.”

In addition, if you end up pleading guilty or being found guilty by a judge or a jury, the fact that you have completed any recommended alcohol treatment programs will make a difference to the judge who must sentence you following conviction.

Therefore, if you can afford to take those classes, you should do so. The 20-hour class that is frequently recommended costs between $400 and $500, and involves classes on the weekends or in the evenings. You can work those classes into your schedule.

6. When I was stopped, I blew below a .08 on the Intox EC/IR machine. Will I still face charges, and can I be convicted of a DWI even though I blew below a .08?

Yes. I’ve seen many cases that involve a breathalyzer result of .07 or lower. In fact, there are occasionally cases where the person blew a .00. Why?

First, the Harnett County District Attorney is very slow to dismiss any DWI charges initiated by the police.

These cases are frustrating, but if you blow below a .08, you have a reasonable – possibly even an excellent chance – of being found not-guilty by a jury. The reason is that many jurors view a result of .07 or less as an indication that you were not drunk.

Second, in some cases where other substances – marijuana or other drugs or prescribed medicine – are suspected, the DA will argue that a .07 or below merely shows that the person wasn't drunk on alcohol. The DA will argue that the person could've been impaired on pot or some other drug or medicine.

Third, the DA will sometimes argue that the Blood Alcohol Concentration (BAC) level of .07 was lower because you were tested a half hour after the stop. The DA will argue that the BAC was probably above a .08 at the time of the stop.

Finally, North Carolina law specifically allows the DA to prove you were impaired in one of two ways. Either the DA can prove you had a BAC of .08 or higher. Or the DA can prove that you were “appreciably impaired” at the time you were driving. Proof of appreciable impairment could include any observations made by police or witnesses: for instance, maybe the car swerved a lot, maybe you slurred your words while talking at the stop, maybe he smelled alcohol, or maybe you made statements that indicated you were appreciably impaired.

In reality, if you did blow below a .08, your case is much stronger, in large part because many juries will not convict if they believe your BAC did not exceed the legal limit.

I love these sorts of cases, because they are cases that may be won at trial.

7. What if I blew above a .08? Am I automatically going to be convicted?

Not necessarily. Obviously, the higher you blow, the tougher your case may be to get an outright dismissal or not-guilty verdict. But these are cases that really demand a good DWI attorney.

First, there are arguments for your lawyer to make about the circumstances leading up to your arrest.

In the United States, police are not allowed to – or should not be allowed to – stop people at random and arrest them for DWIs. If the police did not have some suspicion that allowed them to stop your car, the entire stop may have been unconstitutional, and the whole case could be thrown out.

I’ve had a client who was driving entirely properly. There was nothing wrong with his car, and his license and registration was in perfect order. After approaching his door, the police alleged that his headlights were out. However, they were automatic headlights, and clearly on. This case is a perfect example of an unlawful stop, and any subsequent DWI charge will be dismissed if the stop is ruled unlawful.

Second, there may be reasons to suspect that the breathalyzer exam was conducted improperly, or by an officer who had not taken up-to-date certification classes. In these cases, the results of the exam may be inadmissible, and therefore the defendant will likely be found not-guilty.

Third, there may be reasons to believe that the breathalyzer exam read a higher-than-proper result. For instance, certain medical conditions, including certain diets like the Adkins Diet, can induce conditions in the body that generate chemicals that produce abnormally high breathalyzer results. For these reasons, your DWI lawyer should ask for a brief medical history so that he can assess whether any of these conditions affected your results.

Fourth, you may have consumed your last drink immediately before getting into the car. If that was the case, the breathalyzer exam, conducted thirty (30) minutes after your stop may give a higher reading than you had at the time of your stop.

There are other reasons to explain a high BAC reading, and other ways to challenge a breathalyzer that was improperly given or given without you being informed of your rights.

8. I’ve heard that breathalyzer machines are bogus and not reliable. Is there any way to challenge their reliability?

It’s true. Breathalyzer machines are not very accurate. The problem is that North Carolina is one of the few states that prohibits defense attorneys from challenging the scientific reliability of breathalyzer machines. Until the state’s Supreme Court changes its mind, there’s little chance that any court will accept a scientific challenge to the machine.

On a positive note, many courts around the country are beginning to realize just who faulty and unreliable these breathalyzer machines. The bad news is that change will probably be slow in coming to North Carolina, and too late to help in your case.

9. I was charged with additional crimes at the time of my arrest? How will these affect my DWI case?

I've had clients who have been arrested on a DWI, and have been found in possession of marijuana. And other clients who have been charged with traffic violations. And still other clients who have faced charges like “open container” violations.

The good news is that, if you ever decide to plead guilty to the DWI charge, most Harnett County District Attorneys will dismiss those other charges as part of the plea deal.

The bad news is that a DWI charge is more serious than a simple drug possession charge, or an “open container” charge. And so while you should be concerned about other criminal charges or infractions, you shouldn't let those charges cloud your thinking about the DWI.

I always focus on the DWI – assuming there aren’t other very serious crimes charged – with the idea that if we tackle that charge, other charges can be handled at the same time. (If there are more serious charges involved – like felony possession of a drug with intent to sell, gun charges, and so forth – I am ready to handle those as well.)

In short, the DWI charge is the charge that will affect your ability to drive, and will cost you the most in terms of fines and insurance rate increases. If you hire me as your attorney, we’ll focus on that charge, keeping in mind the other charges that also need to be addressed.

10. What are the consequences of a DWI conviction?

If you've been charged with Driving While Impaired (N.C.G.S 20-138.1) and you are convicted by a judge or a jury or plead guilty to those charges, you are eligible for one (1) of six (6) levels of punishment.

Level 5 is the most lenient level. If the “mitigating” (positive) factors substantially outweigh the “aggravating” (negative) factors in your case, you will be sentenced to a Level 5 punishment, which involves at least 24 hours of community service (or 24 hours in jail), fines of up to $200, costs, and a one-year suspension of your driver’s license. Jail is very rarely imposed, so don’t worry about serving jail time.

Level 4 will be imposed if the “mitigating” (positive) factors balance out the “aggravating” (negative) factors in your case. You will be sentenced to at least 48 hours of community service (or jail time) to be completed within 60 days of conviction, a fine of up to $500, costs, and suspension of your license for a year. Again, jail time is rarely imposed at the District Court level.

Level 3 will be imposed if the “aggravating” (negative) factors substantially outweigh the “mitigating” (positive) factors in your case. You will be eligible for 72 hours of community service (or jail time) to be completed within 90 days of conviction, a fine of up to $1,000, and suspension of your license for a year. There’s a serious chance that jail time may be imposed for a Level 3 DWI.

Level 2 will be imposed if there is one grossly aggravating factor in your case. In this case, you will serve at least 7 days of jail time, and as much as 12 months. These are fairly severe cases. In addition, fines of up to $2,000 will be imposed, in addition to costs.

Level 1 will be imposed if there are two grossly aggravating factors in your case or if the DWI offender had a minor under the age of 18 in the car at the time of the offense.. In this case, you will serve at least 30 days in jail, and possibly up to 24 months, in addition to up to $4,000 in fines, plus costs. With the possible exception of Misdemeanor Sexual Battery, this is the second most severe misdemeanor on the books in North Carolina.

Aggravated Level 1 will be imposed if there are more than two grossly aggravating factors in your case. In this case, you will serve at least 120 days in jail, and possibly up to 3 years in prison, and be fined up to $10,000 in addition to other punishments, including the loss of your right to drive.

11. What are aggravating and mitigating factors?

Think of mitigating factors as little “gold stars” and aggravating factors as little “sad faces.” You want to have more “gold stars” than “sad faces” if you are ever convicted or plead guilty to a DWI. That’s because the judge will sentence you according to one of the six (6) levels described above. Being a “Level 5? DWI defendant is much better than being a “Level 3? DWI defendant.

Aggravating factors include: 1) gross impairment (0.15 or more), 2) especially reckless or dangerous driving, 3) negligent driving leading to a reportable accident, 4) two or more prior convictions for 3-point driving offenses within the preceding 5 years before the offense, 5) conviction of a prior DWI more than 7 years before the instant offense, 6) conviction of speeding to elude apprehension, 7) conviction of speeding at least 30 miles over the legal limit, 8) passing a stopped school bus, or 9) any other factor that aggravates the seriousness of the offense.

Mitigating factors include: 1) slight impairment (0.09 or less), 2) safe and lawful driving at the time of the offense, 3) statutory safe driving record (no driving offenses for which at least 4 points are assigned within 5 years of date of offense), 4) impairment by lawfully prescribed drugs within prescribed dosage, 5) voluntary submission to DWI-alcohol assessment and participation in recommended treatment, or 6) any other factor that mitigates the seriousness of the offense (including, for some judges, “polite and cooperative”).

As you can see, getting an “assessment” and completing treatment prior to your appearance in court is a “mitigating factor” that can help offset any aggravating factors you may have in your case.

12. What are grossly aggravating factors?

These are more serious factors that can put you in Level 1 or Level 2 DWI sentencing grids. If a “grossly aggravating” factor is found by the judge, the judge will not weigh “mitigating” or “aggravating” factors. Instead, he will go straight to Level 1 or Level 2.

If you think a grossly aggravating factor is present in your case, you absolutely should talk to an attorney.

Grossly aggravating factors include: 1) a prior DWI conviction within the preceding 7 years, 2) DWLR under NCGS §§ 20—27 and the revocation was for an impaired driving offense, 3) serious injury to another caused by the Defendant’s impaired driving, 4) and having a person under 18 years of age in the vehicle at the time of the offense (which requires a Level 1 sentence).

13. What if I’m convicted of a DWI? Will I be prevented from driving for an entire year?

The answer is it depends. In many cases, you will be eligible for “limited driving privileges,” which is a determination made by the judge usually at the time of sentencing. The judge will usually permit you to have “limited driving privileges” in order to get from work or home, usually between the hours of 6 a.m. to 8 p.m.

If you need those hours extended, you can provide a letter from an employer or from your school if you’re a student, that explains to the judge your need to drive later in the evening or earlier in the morning. In some cases, people convicted of DWIs maybe given 24-hour a day “limited driving privileges.”

14. How will a DWI conviction affect my insurance rates?

This is a question that only your insurance company can answer. A DWI conviction generally means 8 points on your insurance record. If you have a concern, you can talk to your insurance company about hypotheticals. But don’t admit anything to an insurance agent.

15. What is the process in the court system?

Generally, all misdemeanors – a standard DWI is a misdemeanor – start in District Court. There are no juries in District Court. Only judges. In addition, there is no “record” or stenographer in District Court.

If you are found not-guilty by a District Court judge, then your case is over. You’re done. You don’t have to pay any court costs or fines, no jail sentence, no community service. You can thank your attorney, and pay the final installment of his fees, if necessary!

If you are found guilty by a District Court judge you have two options. You can accept the verdict, pay your fines, do your community service, and pay your costs.

Or you can appeal to Superior Court. Every defendant who is convicted in District Court has an automatic right of appeal to Superior Court.

In Superior Court you have the right to a jury trial. Defendants do much better in front of juries. That’s because juries are made up of people like you. People who may have had a drink or two before driving. People who understand and are ready to forgive mistakes. And people who are more likely to be persuaded by a defense attorney’s arguments than a judge who has “heard it all before.”

Acquittal rates – not-guilty rates – are much higher in Superior Court. Only you can decide – with the advice of your attorney – whether to appeal a case to Superior Court.

If you’re ultimately convicted in Superior Court, you face the same kinds of penalties that you would’ve gotten in District Court. The costs of Superior Court are a bit higher than District Court, but usually not a factor in deciding whether to appeal. Otherwise, you will face the same kinds of sentencing options – Level 5 to Aggravated Level 1 – as described above.

16. Can a lawyer help?

Yes. A good DWI lawyer can help you navigate the system, and achieve the best resolution available to you, whether it is a not-guilty verdict, a dismissal (even if they’re rare), or plea that serves your interests.

17. What are your rates? And how can I pay for your services?

At Marshall Miller, P.A. we charge between $1,500 and $3,000 to handle the case in District Court. If the matter is appealed to Superior Court there will be additional fess depending on the facts and circumstances of that individual cases.

These fees do not include whatever costs you must pay to the DMV or the state as part of a conviction or in order to get your license restored.

In addition, sometimes I recommend that you hire an expert to testify on your behalf about some aspect of the case. I will explain precisely how much the expert will cost, and why you should hire him to testify. If we do hire an expert, you will be billed for his time. The decision to hire an expert is always yours.

DWI cases don’t usually require any investigative or other kind of work, so you generally don’t have to pay for those kinds of fees.

18. All of these fees and potential fines are expensive. How can I afford them all? Is a lawyer even necessary?

If you truly cannot afford to hire an attorney, you can request a Court Appointed Attorney. Tell the judge that you wish to request a Court Appointed Attorney at your first court date.

Since the preparation of your case makes all the difference in the world, you should consider hiring a private attorney if possible.

I offer payment plans. I can bill your credit card on a schedule. Since the case will take months to resolve, you have time to pay me my fee over those months.

I would say that it would be incredibly stupid to try to handle a DWI case on your own. A DWI is a serious criminal charge, resulting in serious consequences not only to your finances, but also, in certain cases, to your employment options.

Handling the case properly may lessen or even eliminate the bad effects of a DWI charge.

Again, if you truly can’t afford an attorney, ask the court to appoint a Court-Appointed lawyer.

At Marshall Miller, PLLC, the attorneys try cases in both District and Superior Court. This takes time and preparation, but it may produce better results for you. You should consider hiring an attorney who is going to fully explore your case and, if you wish, take your case to trial where you may be able to win a “not guilty” result.

19. How can I schedule a free consultation with you?

If you want to talk to an experienced attorney about the specifics of your case, feel free to contact us at (888) 930-6753. More likely than not we will need more information, including information you don’t have about the police report or the blood test and so forth. So sometimes we will need to do further research before providing you with an answer.

But we will be as upfront as we can. If you’d like to sit down for a meeting, we will be happy to schedule a time for you.

If we do meet and you do decide to hire one of our attorneys, we will ask you to sign a “Letter of Engagement” which describes the legal services we provide, and the fees we will charge. Unfortunately, we are unable to do things on your case without some sort of commitment from you to hire us.

In addition, we will discuss a payment arrangement. Ideally you will be able to pay at least part of the fee at our first meeting, but we are flexible and willing to accommodate a variety of payment arrangements.

We accept cash, checks, credit cards, payments by third parties (such as parents, friends, or loved ones who want to help you out), and electronic payments such as PayPal.

In general, we expect payment before your case is finally concluded, but because a DWI case usually takes between 6 to 9 months, sometimes longer, there’s time to work out a schedule that will not be too much of a burden on you.

Feel free to call me (888) 930-6753 weekdays, evenings, or weekends.

Testimonials

Charlie Trig
2013-01-19, 18:21
Marshall Miller has been the best attorney I have ever dealt with. Intelligent and experienced, he had a firm grasp of my situation quickly, and has been very efficient and has put me at ease. Having ...
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