Durham & Chapel Hill NC DWI FAQs
Durham & Chapel Hill NC DWI FAQs
What is a DWI?
In simple terms, a person is guilty of Driving While Impaired if they (a) operate (b) a vehicle (c) on a highway, street, or public vehicular area (d) while under the influence of an impairing substance or with an alcohol to blood concentration of 0.08% or more at any relevant time after driving. N.C.G.S.20-138.1
What does it take to be convicted of DWI?
In order to convict, the state must prove beyond a reasonable doubt, each of the four following elements.
While the terms themselves may sound self explanatory, make sure that before you enter a courtroom charged with DWI that your Durham DWI lawyer fully understand that nature of each element and what the State will need to show to convict you.
1. Operation – What does it mean to operate a vehicle?
The legal term operation means much more than a vehicle in motion. Suppose you are behind the wheel of a car and the engine is running but you haven’t even put the car in gear. That, under North Carolina law, is operation.
2. Vehicle – Aren’t DWIs just for cars?
Under North Carolina Law, it is possible to be charged and convicted of DWI on a boat, scooter, lawnmower, or even a bicycle!
3. Highway Street or PVA – What is a Public Vehicular Area?
Some motor vehicle laws apply only to state maintained streets or highways, but DWI law covers just about every square foot of public space there is. You can get a DWI for driving through an empty parking lot.
4. Impairment – Does it matter if I wasn’t Drunk?
Impairment is the most often the issue on which a DWI will hinge. It’s interesting to note that there are two ways that the state can prove this element.
1. First, they can offer testimony that the defendant was appreciably impaired. They use things like strong odor of alcohol, unsteady on their feet, red glossy eyes, slurred speech, and the like to bolster their opinions of impairment. More to the point are the NHTSA (National Highway Traffic Safety Administration) Standardized Field Sobriety Tests. These tests include the walk and turn, the one leg stand, and the HGN (Horizontal Gaze Nystagmus). These tests are often the most important part of a DWI trial and it is essential that your Durham DWI attorney understand the way these tests are administered.
2. The popular way to satisfy this element is with the use of the Intoxalizer 5000. This is the “breathalyzer” machine that the officer asks defendants to blow into down at the station. This machine is spits out a number for each blow which measures the Defendant’s BrAC (Breath Alcohol Content). If the blow is higher than .08, in many cases the State’s work is done. A competent attorney however, may be able to find ways to suppress this number from being admitted into evidence. Even when a motion to suppress is unsuccessful for one reason or another, the Intoxalizer 5000 is susceptible to error, despite what the State’s experts may tell you.
What happens if I get convicted?
Aside from the loss of one’s driver’s license which accompanies every Durham DWI, the punishment for DWI can range from a fine and some community service to two years in prison depending on the facts of the case and on the defendant’s prior record.
There are three kinds of factors considered by the judge before he or she imposes a sentence:
Grossly Aggravating Factors
These mandate jail time. One grossly aggravating factor in a case dictates a Level 2 punishment. Two or more grossly aggravating factors dictate Level 1 punishment. Grossly Aggravating Factors include the following:
1. A prior conviction for DWI within the past 7 years (the past 7 years measured from the date of prior conviction to the date of offense).
2. A DWI conviction which occurred after the offense date but before or while the current DWI is being sentenced;
3. The DWI occurred while the Defendant’s license was revoked under G.S. 20-28, and the revocation was an impaired driving revocation under G.S. 20-28.2(a).
4. A child under the age of 16 was in the vehicle at the time of the DWI.
5. The driving caused an accident involving serious injury to another person.
Aggravating Factors
These factors can be (but are not required to be) used by the judge to enhance a sentencing level.
1. Gross impairment of the defendant’s faculties while driving or an alcohol concentration of 0.16 or more within
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