DWI

  1. How can I get my driver’s license back or legally drive in the meanwhile?‎
  2. When will my driver’s license be restored?‎
  3. How long will my case take to resolve?‎
  4. If I am convicted or plead guilty to DWI will I lose my license for an entire ‎year?‎‎
Alcohol
Intoxilyzer
  1. I blew below a .08 on the Intoxilyzer. Can I still be charged and convicted of a ‎DWI?‎
  2. What if I blew above a .08? Am I automatically going to be convicted?‎
  3. I’ve heard that breathalyzer machines are bogus and not reliable. Is there any ‎way to challenge their reliability?‎
Other
DWI

01 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.”‎

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02

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.‎

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03

Intoxilyzer

When

I

was

stopped,

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.‎

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04

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.‎