Archive for the ‘DWI Defense’ Category

Post by: Raleigh DWI attorney Matthew Golden

There has been some drastic changes to case law recently that concern the initial stop of an impaired driver in North Carolina. Contrary to popular belief, a police officer cannot pull over your vehicle without a legal basis. That legal basis for DWI cases is either  1.) the driver charged with DWI has committed a motor vehicle traffic offense that is cited in Chapter 20 of the North Carolina General Statutes or 2.) the officer making the stop has a reasonable and articulable suspicion that the driver is impaired by either alcohol or drugs.

What is reasonable and articulable suspicion (RAS) you ask? Well, before the court case of State v. Otto, __ N.C. __ (2012) (Hudson, J.), the case law in North Carolina suggested that mere weaving within one’s lane without anything more was not sufficient to meet this standard. Now, there were cases before Otto where a court found RAS where there was weaving within one’s own lane plus the driver was traveling at 10 mph under the speed limit at 1:40 am in the morning. (See State v. Brown, 2010 WL 3860440 (N.C. Ct. App. Oct. 5, 2010). However, in Otto, the driver was observed weaving within her lane for only 3/4 of a mile, was doing the speed limit, it was only 10:30 pm at night, and there wasn’t any other signs of impaired driving. The N.C. Supreme Court reversed the N.C. Court of Appeals decision and found that a pattern of continual weaving, without anything more, was sufficient to establish reasonable suspicion of impaired driving.

There is no doubt in my mind that this case will be appealed to a higher court, as it contradicts so many other cases in North Carolina as well as other jurisdictions throughout the country. It essentially suggests that a driver who does not drive in a completely straight line is subject to being pulled over by the police at any time. While reasonable suspicion might be an easier burden to meet for the time being, there are plenty other hurdles the State will have to meet to prove a driver is guilty of DWI.

Wake County DWI attorney Matthew Golden will ensure that the State not only has reasonable suspicion to pull over your vehicle, but that they also meet the more difficult test of establishing probable cause for an arrest of DWI, as well as fully complying with the statutes and constitutions of North Carolina and the United States throughout the whole arrest and booking process.

Call Wake County DWI attorney Matthew Golden today for a free consultation over the phone or at his downtown Raleigh office.

The Intox EC/IR II breathalyzer has been used by law enforcement in North Carolina since 2004 to measure blood alcohol concentration (BAC). It is the single most important device used by police and prosecutors to convict people of driving while impaired. Not to be confused with a portable breathalyzer (a PBT), which is often used by police to measure blood alcohol concentration on the side of the road, the Intox EC/IR II is used most often at police stations by a trained chemical analyst. A reading of 0.08 or greater on this machine is just one of the ways the State can convict a person of DWI.

There are several procedural safeguards that the State must follow with regards to administering the test, most of which will be closely scrutinized by a good attorney. A person charged with DWI has a 30 minute window in which he or she has a right to contact a witness to observe the administration of the test. After the 30 minute waiting period, the test may be administered without the defendant’s witness present given the witness was not prevent from entering the testing area.

Defendants also have a right to refuse an Intox EC/IR II breath test but will face an automatic 1 year license suspension because DWI is an implied consent law. A refusal may be unintentional or the result of a medical condition that could result in issues arising as to whether there was or was not a refusal. A DMV hearing may be requested to resolve issues involving refusal. If the breath test is refused, the State may obtain a search warrant and force a defendant to take a blood test, which will also measure blood alcohol concentration. In the case of a breath test refusal and a blood test, the refusal will still be grounds for a 1 year license suspension, even though the State collected the evidence they needed with the blood test.

The tricky part about the Intox EC/IR II tests is that while chemical analysts are trained by the State on how the machine operates and on how to administer the test properly, defense attorneys and the general public are left in the dark about the device actually works. While the inner workings of the device may remain a mystery, there is a public database of maintenance records on the machine that every good attorney should review in their client’s case.

Please contact Raleigh DWI defense attorney Matthew Golden to discuss your driving while impaired case for free.

There are several different options that judicial officials have at their disposal when setting a defendant’s pretrial release conditions. There are five basic conditions that a judge or magistrate may set, and I discuss them below. The NC statute that lists these conditions is 15A-534(a).

Release on written promise to appear
This option allows the defendant to simply be released from jail without paying any bond or money based on his promise to appear in court on his court date.

Release the defendant upon his execution of an unsecured appearance bond. An unsecured bond is one that is backed only by the integrity of the defendant. No assets or collateral is required to be posted on this type of bond.

Place the defendant in custody of a designated person or organization agreeing to supervise him Similar to a release on a written promise to appear, since no money is required to secure release. If this condition is imposed, the defendant may elect to execute a secured appearance bond instead.

Require the execution of a secured apperance bond A secured appearance bond is one that is backed by a cash deposit in the full amount of the bond, by a mortgage, or by at least one solvent surety.

House arrest with electronic monitoring. This condition requires the defendant to stay at his residence unless the court authorizes departure for employment, counseling, a course of study, or vocational training. The defendant will be required to wear a device which permits the supervising agency to electronically monitor compliance with the condition. A secured appearance bond will also be imposed.

Pretrial release on a written promise to appear, an unsecured appearance bond, or on a custody release are options often given for misdemeanor offenses in which the defendant does not pose as a flight risk. Several factors are evaluated, including the seriousness of the offense, the defendant’s criminal history, the presence of other pending charges, length of residency, employment, and ties to the community, among other factors. The statute states that a judicial official must impose one of these 3 conditions unless he determines that such release will not reasonably assure the appearance of the defendant as required, will pose a danger of injury to any person, or is likely to result in the destruction of evidence, subornation of perjury, or intimidation of potential witnesses. If the judicial official finds one of these factors requires a secured bond or house arrest, he must list the reasons in writing for doing so.

Recent legislation that went into effect December 1st, 2011 affects defendants charged with driving while impaired who have had a prior conviction of driving while impaired within the last 7 years. The judicial official may order the defendant to abstain from alcohol consumption as verified by a continuous alcohol monitoring system for the period of pretrial release or until the condition is removed.

If you are charged with driving while impaired or another criminal offense and have questions about your case or about the pretrial release process, please contact Raleigh DWI attorney Matthew Golden today for a free consultation.

Posted 12/19/11
One of the first questions a client charged with DWI asks me is, “how soon can I get back on the road?”. In North Carolina, there are essentially two types of driving privileges – a pre-trial privilege that allows a driver suspended for DWI to drive after waiting 10 days of the 30 day revocation period, and a post-conviction driving privilege that allows a person convicted of DWI who did not refuse a breath test to drive during certain hours.

An attorney can petition for a pre-trial driving privilege after 10 days of the normal 30 day revocation period that starts to run the day the defendant was charged with DWI. The privilege costs $100, which should be made payable to the clerk of court.

The following conditions must apply to the defendant in order to be eligible for this privilege:

(1) at the time of the offense, the driver held either a valid driver’s license or a license that has been expired for less than one year.
(2) the driver does not have an unresolved pending charge involving impaired driving except the charge for which your license is revoked or additional convictions of an offense involving impaired driving since being charged with this violation;
(3) the license has been revoked for at least 10 days if the revocation is for 30 days or 30 days if the revocation is for 45 days; and
(4) the driver has obtained the necessary substance abuse assessment by a court approved registered facility.

There are different criteria for a pre-trial limited driving privilege if the driver’s license was revoked indefinitely.

If the defendant meets the 4 above criteria, the attorney needs to prepare and provide for the court:

-   A certified driving record

-   A Petition for Limited driving Privilege

The standard hours for a driving privilege are Monday through Friday from 6:00 A.M. through 8:00 P.M. If the defendant’s work schedule falls outside of these hours, it is possible for an attorney to request a privilege outside of these hours if appropriate documentation is provided by the employer.

After the hearing in front of a District Court Judge, the pretrial privilege may be granted, allowing the defendant to drive during the remainder of the revocation period. After the revocation period has ended (usually after 30 days), the driver may request his full license back after paying a $100 restoration fee.

Raleigh DWI attorney Matthew Golden represents individuals charged with driving while impaired in Wake County, NC. Contact Matthew today to discuss your case for free and to determine whether you are eligible for a pre-trial limited driving privilege.