You can be charged with a DWI even if your blood alcohol concentration is below a 0.08.  A DWI conviction will have a dramatic impact on your life and finances.  You need to be represented by a competent law firm who understands the law as well as your defense.  Our partners are Former Prosecutors - Experienced Advocates.  We have a history of training and experience from the State's prosecutorial office and we understand how the State will come after you.  We will research your case and go over every shred of evidence to build a customized defense.  If you are interested in what our former and current clients think of us, please check out the independant lawyer review service at www.avvo.com.  We hope you found this information helpful and look forward to working with you in the future.  If you have any questions, please do not hesitate to contact us by clicking the menu bar above entitled "Contact Us."  We wish you the best of luck in your situation and will always be available to serve your legal needs.

​Summary

If you are charged with a DWI, the State will usually seize your driver's license under certain circumstances.  Beginning with the most common seizure, the State alleges that you had a blood alcohol concentration of 0.08 or higher.  If the intoxilyzer reports a BAC of 0.08 or higher, the State will seize your license for a minimum period of 30 days.  As mentioned earlier, you can challenge this seizure by petitioning a district court judge or magistrate.  This petition must occur within 10 days of the date of revocation (seizure of your license).  If you fail to petition in a timely manner, you will automatically lose your license for at least 30 days.


If you failed to challenge the revocation, and you are subjected to a minimum revocation of 30 days, we can file for a limited driving privilege.  In most cases, the limited driving privilege will allow you to drive from sunup to sundown, Monday through Friday.  The court imposed cost for this type of limited driving privilege is $200.00.  At the 30 day mark, you are entitled to have your actual plastic license returned to you without any restriction.  The court cost imposed for the return of your license is $100.00.


Another common seizure of a driver's license is based upon your refusal to provide a breath sample for the intoxilyzer or a blood sample for chemical analysis.  Again, you will lose your license for at least 30 days if you do not challenge the allegation you refused to participate in the testing (within ten days of the revocation/seizure).  At the 30 day mark, you can pay $100.00 and the court will return your driver's license without restriction.  Unfortunately, this is not the end of the story.


If you are marked as a refusal, the Department of Motor Vehicles will eventually send you a letter stating that your license is going to be suspended for a period of at least one year.  This suspension is a civil matter and is completely separate an independent of the court system.  If you receive this letter, you have 10 days from the date listed on the letter to challenge the revocation.  This challenge will take place before a hearing officer at the Department of Motor Vehicles.  Again, this suspension is completely separate and independent of the court system.  In other words, even if you beat the DWI charge, you could still lose your license for a minimum period of one year.  Fortunately, even if the DMV takes your driver's license, in most cases we can get a limited privilege after six months.


If you are convicted of a DWI, you will lose your license for a minimum of one year from the date of conviction.  Depending on the circumstances, we can put you in a position to seamlessly transition from the loss of your license to a limited driving privilege.  This will allow you to drive to and from work, maintain your household, pursue education, pick up the kids, etc.  


If you are convicted of a DWI and the judge finds that your BAC was 0.15 or higher, you will lose your license for a minimum of one year.  Though you will still, in most cases, qualify for a limited driving privilege, you are going to lose your license for at least 45 days and you will have to jump through some additional hoops.  The most difficult obstacle will be that you will have to get an interlock device (aka "blow-n-go") installed in your vehicle and you will have to maintain the interlock device for a minimum of one year.  


If you are sentenced as a Habitual DWI offender, Level A1, 1, or 2, you will not be entitled to a limited privilege under any circumstance.  This is an unfortunate situation but a reality in the law.  The minimum revocation period for these levels of DWI is one year.  If you find yourself in this position, we will discuss alternative methods of travel that do not require a driver's license.


Turning to insurance premiums, a DWI conviction will increase your insurance premiums by 340%.  That means if your monthly premium is $130.00, your new premium will increase to $442.00!  As a comparison, this is the same increase as someone convicted of vehicular manslaughter or negligent homicide.  

Your License and Insurance Premiums


The punishment for a DWI conviction encompasses a broad spectrum.  If you are convicted as a Habitual Felon on a Felony Habitual DWI, you could receive an active term of imprisonment of 231 months.  If this is your first DWI, and absent any egregious facts (death, serious injury, etc.) the punishment could be as low as 24 hours of community service with a small fine.


Our goal is to ensure you are not convicted of a DWI.  However, in some cases, a conviction occurs.  If there is a silver lining to a DWI conviction, it is the fact that you have at least one more shot at being found not guilty.  That second chance comes from an appeal to Superior Court for a trial de novo.  But before we address appeals, lets go through the 8 levels of DWI punishment.


Starting with the worst situation, a Habitual Felon status based upon a Felony Habitual DWI.  This is a complicated scenario, but it is a scenario that named partners have encountered.  In order to qualify as a Habitual Felon, you must have at least three prior felony convictions.  In order to qualify for as a Habitual DWI, you must have three prior DWI convictions within the last 10 years.  If you find yourself in this scenario, you are going to want to speak with as soon as practically possible.  


The next level of punishment is based on the status of being a repeat DWI offender and having three prior convictions within the last ten years.  If you have had three prior convictions for DWI in the last ten years, the current DWI you are being charged with likely qualifies as a felony.  In some cases, the State fails to see your prior convictions and therefore fails to charge you with the felony of Habitual DWI.  If you are in this position, you need to contact us as soon as possible.  It is always our goal to avoid a conviction, but it is sometimes necessary to bite the bullet in order to avoid a felony conviction.


In terms of misdemeanor DWI convictions, there are six levels of punishment.  These levels of punishment are based upon the presence of grossly aggravating factors, aggravating factors, and mitigating factors.  These punishment levels, from most to least severe, are level A1, 1, 2, 3, 4, and 5.


The punishment associated with an A1 DWI conviction is as follows:  a fine of up to $10,000.00 and a sentence of 12 - 36 months of incarceration.  You can be convicted of an A1 DWI if there are three grossly aggravating factors present in your case.  The grossly aggravating factors are as follows:  a conviction for a prior DWI that occurred within 7 years of the date of offense for the pending DWI; a conviction that occurred during a period of license revocation for an alcohol related offense; the pending DWI caused serious injury to another person; there was an occupant of the vehicle who was under 18 years of age, an occupant that had the mental capacity of someone less than 18 was in the vehicle, or an occupant of the vehicle was someone who had a physical disability that would prevent he unaided ability to exit the vehicle.  Unfortunately, the presence of some of these grossly aggravating factors count as two aggravating factors.


A level 1 DWI conviction carries a punishment of a fine up to $4,000.00 dollars and a term of imprisonment of 30 days to 24 months.  In order to qualify for a level 1 DWI, the State must prove at least two grossly aggravating factors.  The aggravating factors are as follows:  Gross impairment - a BAC of 0.15 or greater; especially reckless or dangerous driving; negligent driving that led to a reportable accident; driving while the license was suspended for a non-alcohol related offense; two or more prior convictions for a motor vehicle offense, not involving alcohol, for which there were at least three points levied against the license for each offense; a prior alcohol related conviction occurring outside of 7 years from the offense date of the pending DWI; a prior conviction for eluding or attempting to elude a law enforcement officer; speeding 30 miles per hour or more over the posted speed limit at the time the pending DWI charge was levied; passing a stopped school bus; or, the catchall, any other factor that aggravates the seriousness of the offense.


A level 2 DWI conviction carries a punishment of a fine up to $2,000.oo dollars and a term of imprisonment of 7 days to 12 months.  In order to qualify for a level 2 DWI, the State must prove at least one aggravating factors.


A level 3 DWI conviction carries a punishment of a fine up to $1,000 and a term of imprisonment of 3 days to 6 months.  In order to qualify for a level 3 DWI, the judge must find that the aggravating factors outweigh the mitigating factors.  Mitigating factors are as follows:  slight impairment being a BAC of 0.09 or lower; slight impairment resulting solely from alcohol, without chemical analysis having been available; driving at the time of the offense that was otherwise safe and lawful; a safe driving record without 4 prior points being assessed to the license; impairment caused by lawfully prescribed medication taken in the appropriate dosage; the voluntary submission to an alcohol or drug assessment; and completion of a substance abuse assessment, compliance with the recommendations of the assessment, and simultaneously maintaining 60 days of continuous abstinence from alcohol consumption; and any other factor that mitigates the seriousness of the offense.


A level 4 DWI conviction carries a punishment of a fine up to $500.00 and a term of imprisonment of 2 days to 4 months.  In order to qualify for a level 4 DWI, the judge must find that the aggravating factors are counterbalanced by the mitigating factors.  This is the level upon which the court begins the analysis.  In other words, absent any grossly aggravating, aggravating, or mitigating factors, this is the punishment you will face upon a conviction of a DWI.


The lowest level of conviction for a DWI is a level 5 punishment.  A level 5 punishment carries a maximum fine of $200.00 and imprisonment of 1 day to 2 months.  In order to qualify for a level 5 punishment, the judge must find that the mitigating factors outweigh the aggravating factors.  



Punishment for a Conviction


When you are going through the process of being charged with a DWI, you have several rights that can be violated.  This section is not all encompassing, but it is intended to provide you with some guidance and areas to mention when you meet with us.


Beginning with the stop, or your first interaction with law enforcement, remember to be polite and courteous to the law enforcement officer when you are invoking your rights (regardless of how the law enforcement officer is treating you).  This is important because there might be a camera recording this event and it will be helpful at trial if the judge can see you respectfully invoked your rights.


You have the right to refuse to answer any questions. Remember, be polite and use words to the effect of "I do not wish to answer any questions without my attorney present."  You may feel that this will upset the officer or increase the probability of being arrested.  While that may be true, in the end, your statements may be the very thing that gets you convicted of DWI.


You have the right to refuse to participate in any field sobriety test.  You don't have to watch a pen (or any object) while the officer watches your eyes. You do not have to recite the alphabet.  You do not have to walk a straight line.  You do not have to raise one leg and count.  If you are not at a roadblock, the officer might request that you provide a breath sample into a handheld portable breath test (PBT).  You do not have to provide a sample and you will not suffer any penalty for refusing to provide a PBT sample.  In essence, prior to being take to the intoxilyzer machine, you do not have to do anything that would demonstrate your impairment.  All you have to do is respectfully decline to participate in field sobriety tests.


If you think you are sober, and you are worried that your blood alcohol concentration is going to increase overtime, you have the right to request a pre-arrest intoxilyzer test.  This would be appropriate in a situation where perhaps you consumed a large amount of alcohol in a short period of time and you do not want your blood alcohol concentration to be taken an hour from when you were stopped.  This is a tricky request and you really need to know how your body handles alcohol in order to make this decision.


After your arrest, the officer is required to read you your Miranda rights prior to asking you any further questions.  If you invoke your rights and refuse to answer questions, this cannot be held against you.  However, you must say that you are invoking your right to remain silent.  Remaining silent is not enough - and pursuant to a new decision by the United States Supreme Court, silence without affirmatively invoking your rights can be used against you.


Prior to the officer requesting that you provide a breath sample on the intoxilyzer, the officer MUST read you what is commonly referred to as your "chemical rights."  Theses rights, copied verbatim, are as follows and pertain to the intoxilyzer test:  Under the implied-consent law, you can refuse any test, but your drivers license will be revoked for one year and could be revoked for a longer period of time under certain circumstances, and an officer can compel you to be tested under other laws.  The test results, or the fact of your refusal, will be admissible in evidence at trial.  Your driving privilege will be revoked immediately for at least 30 days if you refuse any test or the test result is 0.08 or more, 0.04 or more if you were driving a commercial vehicle, or 0.01 or more if you are under the age of 21.  After you are released, you may seek your own test in addition to this test.  You may call an attorney for advice and select a witness to view the testing procedures remaining after the witness arrives, but the testing may not be delayed for these purposes longer than 30 minutes from the time you are notified of these rights.  You must take the test at the end of 30 minutes even if you have not contacted an attorney or your witness has not arrived.  


In other words, you can refuse to provide a breath sample for the intoxilyzer or a blood sample for chemical analysis, but the officer can get a warrant to force you to provide a sample.  If you refuse to participate, you will lose your license for one year or more (but in some cases, we can get your license back in 6 months).  If you have a blood alcohol concentration of 0.08 or greater, you will lose your driving privileges for at lease 30 days (unless we successfully challenge the revocation within the first 10 days).  You have the right to have your OWN test after you are released (you would go to a hospital for this).  Most importantly, you have the right to have someone witness the testing procedure.


Calling a witness to watch the testing procedure is critical.  Make sure it is someone you trust and someone that will actually show up.  This will create a witness for trial that can testify as to what took place and their opinion of your sobriety.


You have the right to a reasonable bond that will not conflict with your ability to invoke your chemical rights.  In other words, the magistrate must set a reasonable bond that will allow you to get your own testing done if you request your own testing.  This might include allowing a sober person to pick you up without having to post bail.  It could mean that the magistrate sets an unsecured bond (you don't actually have to give money to the magistrate to get out of jail) and allow you to be released upon your signature affirming you will appear in court.  



​Your Rights


The first step of challenging a DWI is to determine if there was a "stop" by law enforcement.  If law enforcement stopped you, if they took affirmative action to prevent you from driving or walking away, we have to determine if there was a reasonable articulable suspicion that illegal activity was afoot. For example, if you were weaving in your lane of travel, that alone may not be a basis to pull you over or stop you.  If there was not a reasonable articulable suspicion to stop you, the remainder of the evidence against you may be suppressed.


Assuming, the stop was justified, the next step is to determine whether there was probable cause to arrest you or charge you with DWI.  The officer may ask you to participate in field sobriety tests, provide a breath sample into a portable breath test (PBT), or he may not ask you to do anything.  In any event, the officer is going to have to testify why he thought you were appreciably impaired.  If the officer cannot convince a judge that reasonable person would have formed an opinion that you were impaired, the case may be dismissed (this decision will be made by a magistrate, and if necessary, by a judge).


In most cases, when an officer has decided to charge you with DWI, the officer will arrest you and transport you to his charging agency or the local jail. The purpose of this transport is to fill out more paperwork and ask you to provide a breath sample in order to determine your BAC.  The machine that will determine your BAC is known as an intoxilyzer or an EC/IR II.  Unlike the PBT mentioned before, this test is admissible as evidence against you.  In other words, the results of this test can be heard by a judge whereas the results of a PBT cannot be heard by a judge.


In the alternative to providing a breath sample for the intoxilyzer, the officer can request that you consent to a blood draw.  This typically happens when the officer doesn't believe the source of impairment is alcohol (i.e. drugs), or you were involved in a car accident and cannot be transported to an intoxilyzer machine.  


Once the officer has completed this portion of the arrest, regardless of whether a breath or blood sample was taken, the officer will typically transport you to the magistrate (assuming you are not hospitalized).  At the magistrates office, the officer will tell the magistrate why the officer believes you committed the crime of DWI.  If the magistrate finds probable cause to believe the officer, you will be officially charged with DWI.  The magistrate will tell you the crimes that are being charged, the conditions and amount of your bond/bail, and the date of your first court appearance.


Many people think that the first court appearance will be dispositive of the case.  That can be true, but it is highly unlikely or advisable.  In reality, if you have an attorney, you will more than likely have many court dates.  Though there are many reasons to continue a case, the most important reason is to give your attorney an appropriate amount of time to review all of the evidence in your case.  


Regarding the evidence in your case, and returning to the topic of documentation, each of the aforementioned steps in a DWI charge should have been memorialized in court issued forms and police reports.  In addition, there is a high probability that the interaction between you, law enforcement, and the magistrate has been captured either by video, audio, or both.  In most case, as stated before, you will not have all the documentation and in all practicability, you will not possess the ability to collect these documents yourself.


In most cases, we will have to subpoena this evidence from law enforcement.  Once law enforcement complies with our subpoena, we will review the case and prepare a defense.  In the interim, we will also counsel you should be doing prior to trial.  In some situations, we recommend you embark on certain courses of action to ensure the best possible outcome.  


The Process


It can happen to the best of us and it isn't always alcohol.  Whether you were confident you were ok to drive, or you were simply taking medication prescribed to you, you could be charged with DWI.  Whether this is your first charge or one of many, we understand what you are going through.  More importantly, we understand the law and your rights.


In North Carolina, the law on DWI is complex and filled with nuances not known to many people.  For example, in most cases, a charge of DWI comes with a concomitant civil matter; the seizure of your license.  There are ways to challenge the seizure of your license, but you must act quickly.


If you look at your charging documents, you will find that your court date may be as much as two months after the date you were charged with DWI.  The problem is that if you wait to the last moment to hire an attorney, you may lose the ability to challenge the seizure of your license.  In fact, in most cases, you must challenge the seizure within 10 days of being charged.  The problem is further perpetuated by the fact that this isn't the only timeline that is slipping away.  


Perhaps your vehicle was seized, or your friend or family member's vehicle was seized.  As time progresses, the ability to have the vehicle returned becomes diminished and more expensive.  Videos or audio recordings maintained by the charging agency, jail, and magistrate are systematically deleted.  Whether you want these items preserved is a question for your attorney to answer upon a thorough review of your case.


As you may have read, seen, or heard our motto is "Former Prosecutors - Experienced Advocates."  What our motto means to you is that Mr. Silva and Mr. Kiernan were Superior Court Prosecutors for the State of North Carolina.  They have handled a broad spectrum of cases from murder charges to seatbelt violations and everything in between . . . especially DWI charges.  In fact, both named partners prosecuted cases in "DWI Court."


DWI Court is a special term of court in the Fourth Prosecutorial District.  The only cases presented during this term are DWI and alcohol related offenses.  All day long, all week long, there is nothing but DWI trials and guilty pleas.  Working as a prosecutor during these terms gave the partners a unique opportunity to learn a multitude of strategies and techniques to not only prosecute DWI's but to defend them.  In short, working in DWI court not only taught us how the State is going to come after you, but gave us the ability to effectively defend your rights.


Even as you read about our experience, you may be wondering if your case is hopeless.  Well, to quote a Resident Superior Court Judge, "no case is as strong as you think it is and no case is as weak as you think it is."  We routinely tell our clients that the majority of your defense has little to do with what you did or did not do.  You do not have the burden of proving innocence.  You are presumed to be innocent.  The State has the burden of proving guilt and that is what where we come in.


If you were charged with DWI, you know that you were given a litany of documents.  Some are required to be given to you by law and some are not. What you may not know is that there are a lot more documents that you have not been given.  All of these documents, the documents you do have and more importantly, the documents you do not have, can be of critical value in your defense.  


For example, perhaps you did not participate in any field sobriety tests and the only evidence of impairment is your blood alcohol concentration (BAC).  If the corresponding documentation is flawed, missing, or executed incorrectly, there may be a basis to suppress the evidence of your BAC.  Should we find a way of suppressing your BAC, the probability of an acquittal increases dramatically.


Or in the alternative, you participated in field sobriety tests, but for one reason or another, the State does not have or cannot admit into evidence your BAC.  If the charging agency didn't instruct you correctly on how to participate in the field sobriety tests, or used field sobriety tests that have not been accepted by the National Highway Traffic Safety Administration, there may be a basis of suppressing your performance in the field sobriety tests.


What you should know is that each case is unique and each defense is catered to your situation.  We will collect all the evidence we can find, including the documentation you do not have, evaluate your case and create a defense.  We will tell you our opinion on the course of action you should take and we will back your decision with experience and dedication.  Remember, your defense is our top priority and we will be with you throughout the process.




 

DWI/DUI Defense is one of our top priorities.


Silva, Kiernan&Associates, PLLC

910.333.9833 - Jacksonville, NC

910.592.5137 - Clinton, NC