Without diving into the specifics of a DWI just yet...it should strongly understood that a person has a better opportunity in defending against a DWI when they invoke their right to remain silent. Simply put, Shut Up! That is not always the easiest thing to do because officers are trained to get information from people. However, officers do not make an individual speak. A person has the right to remain silent. The Fifth Amendment to the United States Constitution provides protection to individuals from being compelled to incriminate themselves. What that means is...a person has the right to refuse to answer questions, refuse to make potentially incriminating statements, refuse to testify at trial, refuse to give the officer any more clues or information than they already have.
Legal Standard to Stop Someone.
Under North Carolina law, reasonable suspicion is the necessary standard for stops based on traffic violations. The officer may make an investigatory stop when the officer observes unusual conduct which leads him reasonably to conclude in light of his experience and training that criminal activity may be afoot. This standard requires more than a unparticularized suspicion or hunch. When reviewing your case, it is important to determine based on all the factors involved whether or not the officer made an objective determination that criminal activity is or has occurred. If there is no reasonable suspicion to stop the vehicle this can be grounds with which to fight a DWI charge. The Fourth Amendment of the United States and North Carolina Constitution protects its citizens against unlawful searches and seizures. If an officer blue lights a person and pulls them over for a traffic stop, they are being seized and so are the occupants in the vehicle.
Probable Cause to Arrest:
Each case is different in North Carolina to determine whether or not officers had probable cause to arrest someone for a DWI. Depending on the number of factors in your case will determine if there is enough to meet that standard. The standard for probable cause under North Carolina law is that there is a probability or substantial chance of criminal activity, not an actual showing of such activity. Probable cause is a fact specific determination based on the totality of the circumstances (all the facts at that time).
The most common examples officers use for probable cause are bad driving, accident, red glossy eyes, odor of alcohol, open container in vehicle, slurred speech, and the list can go on and on. Additionally, in North Carolina, there are five sobriety tests in which officers use to determine if there is enough probable cause to arrest you for a DWI. Depending on how you do on those tests will go to the officer’s analysis on whether or not there is probable cause to arrest. An experienced attorney knows that these tests are scientific and require an officer with the requisite expertise to administer them and testify their results. A quick tip: it is important to understand, refusing the roadside breath test is a person’s right and refusing the test does not bring about any consequences to your driver’s license. If there is a suspicion of a DWI, officers will try to gather all the evidence using the other tests. Attacking that there was not probable cause to arrest a person can be a great strategy in defending against a DWI.
Implied Consent Testing.
When arrested for a DWI, the officer will take the person to the closest facility in which they have a Intox EC/IR II. That is used (with a degree of scientific certainty) to determine what numerical value is a person’s BAC or blood alcohol content. As you know or have figured out while reading this, a person commits the offense of impaired driving by driving after having consumed sufficient alcohol that he or she has, at any relevant time after the driving, an alcohol concentration of .08 or more. Moreover, the state of course must demonstrate that at least .08 of a person’s alcohol concentration was based on alcohol consumed before or during the driving (which can be difficult if consumed after driving). Before the officer asks to blow into the machine, he or she will lay out the implied consent form. Also, the officer must observe a person before blowing for a minimum of fifteen minutes to determine that the person has not ingested alcohol or other fluids, regurgitated, vomited, eaten, or smoked. Additionally, that officer must have a certification that he is allowed to operate that machine and the machine must meet special certifications in order to be used on a person suspected of a DWI. There are a number of scenarios that arise during this stage in which an experienced defense attorney can attack the District Attorney’s case.
The Release.
In North Carolina, the defendant has the opportunity to gather evidence after they are released or during their arrest processing. This could lead to support their own cases if they were never given information about how to get released and were unable to communicate with their friends and legal counsel during that time period. Additionally, there are circumstances in which the magistrate does not issue proper pretrial release conditions which can hurt a person’s chances in obtaining their own individual evidence of intoxication.
Beyond a Reasonable Doubt.
Lastly, the District Attorney’s Office must prove each element to the crime of Driving While Impaired beyond a reasonable doubt to a jury of 12 or to a judge. N.C.G.S. § 20-138.1 plainly reads that: a person commits the offense of impaired driving if he drives any vehicle upon any highway, any street, or any public vehicular area within this State:
(1) While under the influence of an impairing substance; or
(2) After having consumed sufficient alcohol that he has, at any relevant time after the driving, an alcohol concentration of 0.08 or more. The results of a chemical analysis shall be deemed sufficient evidence to prove a person's alcohol concentration; or
(3) With any amount of a Schedule I controlled substance, as listed in G.S. 90-89, or its metabolites in his blood or urine.
When attacking the elements of a DWI, a defense attorney can bring doubt into the judge’s or juror’s mind. Each element (not including the “or”) must be proven beyond a reasonable doubt in order to be convicted of a DWI.