What Should I Do If I Get Stopped for DWI?
Should you be stopped on suspicion of driving while impaired (DWI), the best thing you can do is arm yourself with knowledge. If you know what is happening and what to expect, you can make better decisions about how to handle the situation and will have a better understanding of what your rights are and what the ramifications of your decisions may be.
When you are stopped
Generally speaking in North Carolina, a law enforcement officer may stop or “seize” a person if they have a “reasonable articulable suspicion” that the person is involved in criminal activity (such as driving while impaired), or if they have probable cause to believe that the person has committed a readily observable traffic violation (such as speeding, running a stop sign, etc.). Most DWI investigations begin in this manner, but there are many other ways that a person may become the subject of a DWI investigation without being stopped by a law enforcement officer, such as being involved in an accident where 911 is called or by driving through a checkpoint. Once you have been targeted as someone who may be driving while impaired, most law enforcement officers will ask you to perform a number of “field sobriety tests” to confirm or deny their suspicion of impairment. These tests may include, but are not limited to, the following:
- The walk and turn test — you may be asked to take nine heel-to-toe steps down a line, turn in a specific manner and walk back down the line in the same manner without stepping off the line, missing a heel-to-toe, using your arms to balance yourself, taking the incorrect number of steps or performing the turn in a manner inconsistent with the way the law enforcement officer demonstrated
- The one-legged stand — you may be asked to raise one foot off of the ground six to 12 inches and hold it up while you maintain your balance without using your arms and count out loud for 30 seconds
- The finger to nose test — you may be asked to extend either of your arms to your side, sweep the arm to your front, then curl your arm inward and touch the tip of your nose
- The horizontal gaze nystagmus test — you will be asked to follow a stimulus with your eyes so that the law enforcement officer may gauge the presence of “nystagmus,” or involuntary jerking, of your eyeballs as you track the stimulus with your eyes
- The alphabet test — you may be asked to say only part of the alphabet, starting with a specific letter and ending with a specific letter
- The alcosensor test — not to be confused with the Intoximeter test, which is the breath alcohol test that will be administered after you are arrested and have been advised of your rights in regards to that test, the alcosensor test is a handheld breath test administered in the field, the numerical results of which are generally not admissible in court
You do not have to take these tests. If you refuse to take them, the fact that you refused may be used against you at trial, but you will not lose your license for refusing to take a field sobriety test, including the alcosensor test. If you decide to take the tests, make sure to listen to the instructions and follow them strictly. Any failure to follow the exact instructions will be used against you as a sign that you are mentally impaired. If you suffer from any physical ailments that may inhibit your ability to perform these tests, now would be the time to mention them. These tests are performed to help the officer develop probable cause to arrest you. Probable cause will be based on the circumstances under which you were stopped, your performance on the field sobriety tests, and the law enforcement officer’s observations while interacting with you. Keep in mind that during the entire investigation, a good law enforcement officer will keep notes as to anything that they are hearing, seeing and smelling that may indicate that you are impaired. Some examples of what an officer may observe that could be used to establish probable cause are any evidence of bad driving, bloodshot or glassy eyes, an odor of alcohol on one’s breath, slurred speech, flushed face, inability to follow directions, failed field sobriety tests, problems walking or standing still, problems exiting the car, inability to produce driver’s license or registration, etc.
Once the law enforcement officer has probable cause to believe that you are committing the offense of driving while impaired, you will be arrested and taken downtown.
When you are arrested
Unlike what you see on TV and in the movies, being arrested in and of itself does not require the police to advise you of your Miranda Rights. Miranda Rights only apply to situations where a person is being questioned while in custody. If you are read your rights, make sure to remember when you were advised of them. When you were advised may be of critical importance if we are trying to get a statement you made suppressed.
Once you have been taken downtown, you should be asked to submit a to an Intoximeter test. This is an analysis of your breath to determine your blood alcohol concentration. Prior to this test, you should be advised of your rights in regard to taking this test, including your right to have a witness present, your right to call an attorney and your right to refuse to take the test. You will then be asked to sign a form stating that you understand your rights. If you decide to call a witness, they will have thirty (30) minutes from the time you are advised of your rights to get to the Intoximeter room. The test will not be delayed more than 30 minutes while waiting to get a witness there. Make sure that if you call a witness or an attorney that you do not make any incriminating statements in the presence of a law enforcement officer that may be used against you in court.
Whether or not to blow
This is a decision that only you can make, knowing what you have had to drink and what the ramifications of the decision may have on your life. You can refuse to blow on the Intoximeter. Refusing to submit to this test will trigger a one-year revocation of your driver’s license. Under certain limited circumstances, you may be eligible for a limited driving privilege after six months of the revocation have passed. If you decide not to take the Intoximeter test, the law enforcement officer may take you to the hospital to draw your blood, which will then be sent to the SBI lab for analysis. This is also the process which is used if the law enforcement officer believes that you are impaired by a substance that is not alcohol, such as marijuana, cocaine or other controlled substances. If you end up being convicted of DWI and an SBI lab analysis was employed, you will be ordered to pay $600.00 for the analysis as part of your judgment.
If you decide to take the test and blow over 0.08, (or if a blood test reveals a BAC of 0.08 or higher) your license will be revoked immediately under what is called a civil revocation. This is usually a thirty (30) day revocation, but you may be eligible for a limited driving privilege after the first 10 days of the revocation have passed. Whether or not you qualify for a limited driving privilege depends solely on the specific facts of your case and your record. After the thirty (30) day civil revocation has ended, you can get your license reinstated by going to the clerk of court’s office and paying a $100.00 civil revocation fee.
After the Intoximeter test, you will likely be asked a number of questions, known as the AIR form questions. You should be mirandized before being asked these questions if you have not been previously. These questions are general investigative questions about where you had been earlier in the night, where you were going, what you had had to eat or drink, any medications you currently take, etc. The Assistant District Attorney who tries your case will use any admission made while answering these questions or any statements that are inconsistent with statements previously made against you at the trial, so be careful when answering them. Also remember that you do not have to answer any of the questions.
Your next (and likely last) stop is the Magistrate’s Office. The arresting officer will take you before the magistrate on duty, who will review the charges with you, then set your court date and bond. Since you have the right to gather independent evidence of your innocence, you will usually be given a written promise to appear or a custody release to a sober individual on the DWI charge. If you have other charges, unserved warrants or have failed to appear in the past, you may be given a secured bond which must be posted in order to secure your release. The next thing you need to do is call us to set up a free consultation. At the consultation we will discuss:
- The elements of DWI — what the state must prove to convict you
- Trial strategy — suppressing evidence, strengths and weaknesses of your case
- Potential punishments — these can include jail time, probation, community service, etc.
- Limited driving privileges — both pre-trial and post-conviction, including
- When you will be eligible
- What paperwork we will need to get one
- Fees and payment plans
Please understand that the information provided above is general information intended to help inform you of your rights and what you can generally expect should you be arrested for DWI. Every case is factually different and without knowing more about your specific situation, it is impossible for us (or any attorney) to say what you should or shouldn’t do if you are being investigated for DWI.