DUI/DWI Charges

Driving While Impaired, also known as a DWI, is a serious crime with severe punishments, so you need experienced legal help from Cotten Law.DWIs are usually classified as a misdemeanor. Repeat offenders are charged with a felony.

These cases often start with an assumption of impairment. Cotten Law will work hard to fight the DWI and controlled substance charges. North Carolina has a 7-year look-back period. This means that the DWI will stay on your record for seven years and if you commit another drunk driving offense within the seven years, you can receive severe fines and more jail time.

Consequences of DWIs include immediate license suspension for 30 days, with the possibility of limited driving privileges after 10 days. Driving while impaired can also cause you to spend 24 hours to 60 days in jail.

Contact Cotten Law to find out your rights after a DWI. (919) 586-7072

Revoked License

How can I get my driver’s license back or legally drive in the meanwhile?‎

In most cases, your license is revoked for a thirty (30) day period following a ‎DWI arrest. Typically, you may be granted a “limited driving privilege” after just ‎ten (10) days as long as you do not have any prior DWI convictions within the ‎past seven (7) years. You will need to undergo an “alcohol assessment,” provide ‎proof of current insurance (on Form DL123), and provide your seven (7) year ‎driving history. I can complete the petition and file it 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. Certain other driving ‎privileges may be granted if your circumstances require them.‎
I can make the appearance in court for you so you do not have to take time from ‎your day to get your “limited driving privilege.”‎

When will my driver’s license be restored?‎

If you apply for a “limited driving privilege,” your limited driving privilege can ‎be granted as soon as ten (10) days after being charged with DWI. ‎
If you decide not to apply for a “limited driving privilege,” 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.‎

How long will my case take to resolve?‎

It depends. If you are stopped today, you will probably have a court date about ‎two months from now. The charge against you could be resolved at your first ‎court appearance but this would likely involve simply pleading guilty to DWI. ‎

It is almost never advisable to plead guilty at your first court setting. The time ‎following a DWI charge is a very stressful time in your life. Some people feel that ‎they cannot handle the constant pressure of simply not knowing what will ‎happen to them as their court date approaches. Many of these people simply ‎desire to get the entire incident behind them and enter a plea of guilty at their ‎first court setting. This is almost never a wise decision as the District Attorney’s ‎job is to prosecute you to the fullest extent and no amount of remorse or guilt ‎you may be feeling will gain you any favors in court. The District Attorneys ‎know that this is a very trying moment in your life and that you are anxious to ‎put the charge behind you. This is the reason that most District Attorneys offer ‎their worst “deals” at the first court appearance. ‎

Usually, a DWI case can take anywhere from six (6) to nine (9) months. The ‎reason is that Wake, Harnett, and Johnston County Courts have an enormous ‎number of cases. Most of the cases are not just DWI cases, and the courts are ‎slow to process them all. ‎

I advise all clients that they should expect a trial. A trial may not be the best ‎option in all cases depending on the facts. However, it is your right to have a trial ‎and make the State prove guilt beyond a reasonable doubt. A trial is sometimes ‎your best chance for a successful resolution of your case depending on the facts ‎of your charge. However, a trial will not be scheduled for six (6) to nine (9) ‎months. Do not let the stress of the approaching court date get to you. ‎

If I am convicted or plead guilty to DWI will I lose my license for an entire ‎year?‎‎

The answer is it depends. In many cases, you will be eligible for a “limited ‎driving privilege,” which is a determination made by the judge usually at the time ‎of sentencing. The judge will usually permit you to have a “limited driving ‎privilege” 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.”‎
Alcohol Assessment

What is an “alcohol assessment”‎?

An alcohol assessment is an hour-long evaluation administered by a private ‎agency approved by the state of North Carolina. You will be asked 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 further treatment is recommended, ‎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 in the course (if recommended by the agency) to the court. ‎Therefore, the sooner you get your alcohol assessment, the sooner I can file the ‎petition for your limited driving privilege.‎

Additionally, 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 for ‎sentencing purposes.‎

An alcohol assessment will cost $100. Upon completion, you can have the ‎agency fax me your “alcohol assessment” directly. If you hire me, my fax number ‎is (919) 586-7073.‎

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

If you want to be granted a limited driving privilege, the petition you sign states ‎that you will take such classes. So the answer is generally “yes.”‎
Additionally, 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.‎

If you can afford to take the classes, you should do so. The 20-hour class that is ‎frequently recommended costs around $500. The classes usually are available in ‎the evening and also on weekends. You can work the classes into your schedule.‎

Intoxilyzer

I blew below a .08 on the Intoxilyzer. Can I still be charged and convicted of a ‎DWI?‎

The short answer is “yes.” There are many cases that involve a breathalyzer ‎result of .07 or below. In fact, there are occasionally cases where the person did ‎not register any alcohol on the intoxilyzer. Why?‎

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

First, a District Attorney is very slow to dismiss any DWI charge brought by the ‎police.‎
These cases are frustrating, but if you blew 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 District Attorney will argue that a .07 or ‎below merely shows that the person wasn’t drunk on alcohol. The District ‎Attorney will also argue that the person was been impaired by some other drug or ‎medicine.‎

Third, the District Attorney 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 District Attorney will argue that the BAC was probably above ‎a .08 at the time of the stop.‎
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.‎

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 stop people at random and arrest ‎them for DWI (or any offense for that matter). If the police did not have ‎reasonable suspicion to justify a stop of your car, the entire stop may have been ‎unconstitutional, and the whole case could be thrown out.‎

Second, North Carolina law requires strict adherence to regulations that control ‎the calibration of the intoxilyzer and its operation. There may be reasons to ‎suspect that the intoxilyzer 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 the defendant will likely be found not-guilty.‎

Third, there may be reasons to believe that the intoxilyzer read a higher-than-‎proper result. For instance, certain medical conditions, including certain diets ‎like the Atkins 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 or she 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.‎

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. Unless North ‎Carolina’s Supreme Court changes course, there is 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 ‎how faulty and unreliable these breathalyzer machines really are. The bad news ‎is that change will probably be slow in coming to North Carolina, and too late to ‎help in your case.‎

Other DWI Information

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

The short answer is that other charges generally do not have a direct impact on ‎your DWI charge. Often times, clients that have been charged with DWI are ‎found in possession of marijuana at the time of the stop resulting in an additional ‎charge of “possession”. Even more often, clients who have been charged with ‎DWI are charged with other traffic violations such as speeding, reckless driving, ‎and driving left of center. ‎
The good news is that, if you ever decide to plead guilty to the DWI charge, most ‎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 other traffic charge/moving violation. You should be concerned about ‎other criminal charges or infractions, you shouldn’t let those charges cloud your ‎thinking about the DWI. A DWI conviction can have lasting negative impacts on ‎your immediate and intermediate future. ‎
It is important to focus on the DWI charge. The DWI charge is usually the most ‎serious charged offense. If the DWI charge is vigorously defended resulting in a ‎dismissal or not-guilty verdict the other charges and infractions may then be ‎handled accordingly. However, if there are more serious charges involved – like ‎felony possession of a drug with intent to sell, gun charges, and so forth, those ‎charges will be dealt with as well.‎
The DWI charge is usually the charge that will most affect your ability to drive, ‎and will cost the most in terms of fines and future insurance premium increases. ‎It is important to focus on the DWI charge while also devoting the necessary time ‎and resources to handle any additional charges as well. ‎

What happens if I am convicted of DWI?‎

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 for a Level 5 ‎punishment upon conviction of DWI.‎
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. This is a very serious charge and many persons charged with DWI ‎are shocked to find out that they are facing mandatory jail time after never ‎receiving a single traffic citation because they were charged with DWI while a ‎minor was in the car. 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.‎

What are aggravating and mitigating factors?‎

Mitigating and aggravating factors are facts that can either make your potential ‎punishment better or worse depending on the facts at the time of the traffic stop. ‎They can also include actions that happen after the time of arrest such as the ‎substance abuse assessment. The judge will weigh the aggravating and mitigating ‎factors and 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 charged 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, being “polite and cooperative” with the officer at the ‎time or the charge and while in custody).‎
As you can see, completing the substance abuse assessment and recommended ‎treatment prior to your appearance in court is a “mitigating factor” that can help ‎offset any aggravating factors you may have in your case.‎

What are grossly aggravating factors?‎‎

These are more serious factors that can put you into 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. This means that even if you ‎have an infinite number of mitigating factors and absolutely no aggravating ‎factors in your charge all of the mitigating factors will be ignored. Instead, the ‎judge will go straight to Level 1 or Level 2 for sentencing purposes.‎
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).‎

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.‎

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, which is common in District ‎Court trials, 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. An appeal to ‎Superior Court means the entire trial and any pretrial motions made by your ‎attorney must be reargued; the District Court conviction is not binding on the ‎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. Juries are ‎made up of people who may have had a drink or two before driving. They are ‎made of people who understand and are many times ready to forgive mistakes. A ‎jury member is often times more likely to be persuaded by a defense attorney’s ‎arguments rather than a district court judge that has “heard it all before.”‎
The bottom line is that your chances of being found not guilty are greater in ‎Superior Court. You and your attorney must decide based on the facts of your ‎individual case whether or not a district court DWI conviction should be ‎appealed 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.‎

I’ve heard Wake County is a tough county for DWI defendants?‎‎

Yes. Wake County is one of the toughest counties in North Carolina when it ‎comes to DWI charges. This is because the Wake County District Attorney’s ‎policy is not to dismiss many cases, including weak cases. The Wake County ‎District Attorney rarely pleads down cases to lower charges such as reckless ‎driving. Most DWI defendants have to fight for their rights, whether it’s in ‎District Court or Superior Court.‎
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.‎

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

Once again, the answer is “it depends.” Fees are determined based on the nature ‎and facts surrounding the DWI charge itself. Often times I charge between $1,500 ‎and $2,500 to handle the case in District Court. Additionally, if you wish to ‎appeal a District Court conviction for a new trial in Superior Court an additional ‎fee for trial will be necessary as the trial process essentially starts over from the ‎beginning. I structure my fees this way because many cases are not appealed to ‎Superior Court, and there’s no reason for clients to pay me for work I won’t do. I ‎also keep my Superior Court fees low so that if you decide to appeal to Superior ‎Court, you will not be financially burdened.‎
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 or her 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 ‎usually will not have to pay for those kinds of fees.‎

All of these fees and potential fines are expensive. Is a lawyer even necessary?‎

If you truly cannot afford to hire an attorney, you can request a Public Defender. ‎Tell the judge that you wish to request a Public Defender at your first court date. ‎The Wake County Public Defender has excellent attorneys. The only problem ‎with the Public Defender is that those attorneys handle hundreds of cases a year.‎
Like other private attorneys, I handle a fraction of that, and devote more time to ‎each case.‎
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 any fees over those months.‎
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. A lawyer to ‎help you through the process is usually recommended and in certain cases ‎involving injury or other aggravating factors, a lawyer is more or less a necessity.‎
Handling the case properly may lessen or even eliminate the bad effects of a DWI ‎charge.‎
Again, if you truly cannot afford an attorney, ask the court to appoint a Public ‎Defender or Court-Appointed lawyer at your initial appearance.‎

How can I schedule a free consultation with you?‎‎

If you want to talk to me about the specifics of your case, feel free to contact me ‎at (919) 586-7072 weekdays, evenings, or weekends. I answer the phone, so you ‎will talk directly with me about the case. When you reach me, I will answer the ‎questions that I can answer. Sometimes I’ll need more information, including ‎information you don’t have about the police report or any blood tests performed. ‎Sometimes I will need to do further research before providing you with an ‎answer.‎
But I will be as upfront as I can. If you’d like to sit down for a meeting, I’d be ‎happy to schedule a time for you to either come to my office, or for me to visit ‎you at your home. I am flexible, and work evenings and weekends if necessary.‎
If we do meet and you do decide to hire me, I will ask you to sign a “Letter of ‎Engagement” which describes the legal services I provide, and the fees I will ‎charge. Unfortunately, I am unable to do things on your case without some sort of ‎commitment from you to hire me.‎
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 I am flexible and willing to ‎accommodate a variety of payment arrangements.‎
I accept cash, checks, credit cards, and payments by third parties such as parents, ‎friends, or loved ones who want to help you out.‎
In general, I 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 (919) 586-7072 weekdays, evenings, or weekends.‎