Lawyers who don’t handle DWI cases sometimes receive frantic calls from clients when a charge is looming, or a DWI arrest has been made. The laws are confusing, and there is a lot of misinformation out there.
If you get that call from a client, advise them to retain an attorney with a proven record at trial, field sobriety test, and breath test training, as well as DWI educational experience. DWI defense can be technical and tricky. Cases are won or lost over the smallest of details.
DWI arrests or charges can happen even without the consumption of alcohol. NC law allows for DWI prosecution if a driver is impaired by any controlled substance, prescription medication, and even some “legal” substances, such as CBD or legally purchased Delta 8 THC.
A driver can be prosecuted for DWI without a breath or blood test. This alternate theory is “appreciable impairment” or loss of normal control of mental and/or physical faculties at the time of driving. Anything an officer sees, smells, or hears, such as driving, slurred/mumbled speech, odors, performance on sobriety tests, or answers to questions, can form the basis for appreciable impairment.
Before an Arrest
Traffic stops for speeding, running a red light/stop sign, or a seatbelt violation can become a DWI investigation. Alcohol or controlled substances should not be in the passenger area of a vehicle. A speed stop where an open container of alcohol or scent of marijuana will immediately become a DWI investigation.
Officers will ask about alcohol use during a stop if they smell it. It’s legal to consume alcohol and drive up to a .08 limit. It’s best to admit if some alcohol has been consumed. A denial will ensure further investigation; an admission may soon end the encounter, or a roadside breath test may be requested. Your client should take this test since an officer can only testify whether a result is positive or negative for alcohol. Refusing this test will lead to sobriety tests.
Sobriety tests are designed to divide a person’s attention between physical and mental tasks. Alcohol and drug use affects the ability to multitask, short-term memory, balance, and coordination. Your client can refuse these tests, but I advise taking them. Your client should advise an officer of any physical, mental, or medical conditions. Insist and confirm the tests are recorded by the officer’s dash or body cameras. If possible, take the tests in front of a patrol vehicle. DWI is mostly an opinion crime, so audio/video evidence is the best form of objective evidence.
A DWI suspect has a right to request a pre-arrest breath test. This request must be made clearly and especially before performing sobriety tests. An officer must stop further field testing and transport your client to perform an official breath test. A reading under .08 and your client most likely will not get charged.
After the Arrest
Officers can choose between administering a breath or blood test. Breath tests are the norm. Blood tests are often taken after accidents, suspected drug impairment, or breath test refusals.
DWI suspects have important rights that must be read aloud and presented in writing before a breath or blood test is administered. There is the right to refuse testing, but that can cause immediate loss of a driver’s license and a possible one-year suspension from DMV. It will also likely trigger a blood test compelled by a search warrant.
Clients have the right to call an attorney for advice and to have a witness to be present for a breath test. A witness has 30 minutes from the time these rights are advised to get to the testing site. DWI arrestees can seek additional testing once they are released from custody immediately after making bail.
