Category Archives: DWI

Are Field Sobriety Tests Accurate In Raleigh, NC?

We recently discussed the admissibility of the Field Sobriety Tests (FST) commonly used at DUI checkpoints and traffic stops in North Carolina. These physical tests are administered in conjunction with a breath alcohol device that is intended to measure the amount of alcohol in your system.

In a word, no. Commonly used by police to determine intoxication, FSTs aren’t foolproof. Although FSTs are the norm, the decision of intoxication lies solely with the officer at the scene. The officer will use his or her own judgment, based on visuals, FSTs, and a breathalyzer to determine whether to complete an arrest based on an assessment of DUI.

A sad man in his red car after failing his field sobriety test in Raleigh, NC.

What Are FSTs?

There are three standard Field Sobriety Tests that are used in Raleigh and nationwide after an officer has administered a breath or blood alcohol test:

  • The “Walk-And-Turn” Test, in which you’re asked to walk in a straight line, one foot in front of the other, for a specific number of steps. Your balance as well as your ability to remember the number is observed.
  • The “One Leg Stand” Test, in which you stand on one leg and count to 30, presumably for 30 seconds. The officer will observe to see if you can stand, or you use your arms, hop, sway, or put down your foot while trying to balance.
    • In both of these tests, factors such as age, fatigue, physical condition, injuries, and even uncomfortable shoes can make balancing difficult. Even sober, you may be ruled “intoxicated.”
  • The “Horizontal Gaze Nystagmus Test” (HGN), where the officer checks your eye movement while moving his finger or other object side to side.

Other non-standard tests that may be requested by an officer are reciting the alphabet backwards, putting your finger on the tip of your nose, and counting forward, then backwards. These are not scientific nor standard tests. They are not accurate for determining intoxication, and challenged in court if used to arrest you for DUI.

Challenging the FST Results

The protocols for these standard FSTs were developed in a laboratory under controlled conditions. If you’re being asked to perform them, it’s probably on the side of the road.

The FSTs were developed by the Southern California Research Institute (SCRI), which determined that these three tests were the most accurate for determining intoxication. Initially, their success rate was around 40%. Over time, SCRI standardized the testing so that it gave an 82% success rate. However, this number only reflects the ability to detect intoxication, not the ability to drive a car.

If a police officer stops you, even sober, you are already stressed. The likelihood of being able to perfectly stand on one foot for 30 seconds without wavering or holding up your arms for balance, then counting to 30 (or until told to stop) is very low. Yet this is one of the gold-standard “tests” for determining sobriety in a driver.

The established guidelines for administering the standard FSTs are not always precisely followed. Even correctly administered, the FSTs may inaccurately indicate intoxication. Police officers aren’t penalized for arresting an innocent individual, so they will make the arrest anyway.

As mentioned previously, other factors can inhibit someone’s ability to complete the FSTs. Even with a blood alcohol content (BAC) below the legal limit of 0.08, an officer may make an arrest for DUI based on how you perform when asked.

Results from FSTs are known to be subjective, and offices who incorrectly administer or evaluate will create an inaccurate decision. The results could then be challenged in court.

Defense For DUI And Inaccurate Field Sobriety Testing

Even if you’re 100% sober, FSTs don’t tell the whole story. An experienced DUI attorney can challenge the officer’s findings and request a dismissal of charges dismissed based on the inaccuracy of the FSTs.

Sober or not, a DUI charge is serious, and must be handled correctly to avoid more serious consequences. Dewey P. Brinkley is a Raleigh DUI defense attorney who can aggressively defend you against false DUI charges and protect your rights in court. Call the law offices of Dewey P. Brinkley today for a free initial consultation to discuss your DUI case at (919) 832-0307. You can also email us at dewey@deweypbrinkleylaw.com, or use our online contact form.

What Are Some Of The Consequences Of A DWI Conviction In Raleigh, NC?

Recently we told you about the costs of getting a DWI conviction in Raleigh. As we explained, it’s quite expensive. Even if your case is dismissed, you can spend upwards of $3,500 in court and administrative costs, and attorney fees. You can also be sued in civil court for personal injury damages if you hit someone.

But beyond the financial consequences, there are other consequences that you may suffer as a result of a North Carolina DWI arrest and conviction.  It does not “drop off” your driving and criminal record like a parking ticket, and it can affect you the rest of your life.

Students And DWI

DWI defense attorney Raleigh NC

Zero tolerance” is North Carolina’s law for underage drinking, and anyone under 21 can be convicted with any amount of alcohol in their system, not just the state limit of 0.08.

Additionally, high school students may face additional disciplinary actions at school, such as suspension or even expulsion. At the collegiate level, students may be prevented from receiving scholarships or other financial aid, or lose them if they’re already in college.

Employment

Some employers may terminate your employment immediately after an arrest; it may be part of their company policy (check your company’s employee handbook.) Depending on your job and where you work, you may have some questions to answer, but may not be fired. However, certain types of jobs may end if you’re arrested for DUI. For instance:

  • If you’re an air traffic controller or a pilot, your “medical fitness” will be reviewed automatically. If you are found “unfit” as a result of substance abuse, you won’t be allowed to work.
  • Professional licenses for doctors and nurses can be suspended or revoked by their respective state boards
  • NC’s State Board of Barber Examiners also has the ability to revoke your license after a felony conviction
  • Anyone with a commercial driver’s license (CDL), such as truck drivers, can also lose their license—and their livelihood—after a commercial DWI conviction. The legal limit for CDL holders is 0.04, half of the state’s legal limit.
  • A DWI conviction can impact government employees with security clearances

A DWI can also affect your professional reputation and relationships with colleagues, coworkers and employees.

Additionally, future employment opportunities may be limited due to a conviction for DUI. If you’re asked if you’ve ever been arrested, you will have to disclose it. If you don’t, an arrest will appear when someone runs a criminal background check. While some jobs may be accepting, others, such as those that require you to drive, may decide against hiring you. You may be unable to acquire a professional license due to a DWI charge in North Carolina.

Housing

A DWI will show up if any landlord, lender or loan officer performs a criminal background check. You’ll have increased difficulty renting or buying a home, getting home financing, or even finding a place to live temporarily.

Relationships

A DWI arrest can lead to strained relationships with family, friends and colleagues, due to the stigma. Marital relationships that are already strained can worsen after a North Carolina DWI arrest and conviction, sometimes leading to divorce.

Divorce/Child Custody

If you’re already in the middle of a divorce, a DWI arrest will make things worse, especially with children.

Your spouse can use the arrest to show the judge that you are not responsible enough to properly care for your own children. As we mentioned, you’ll also have difficulty finding a place to live when you move out of the marital home, making your case more difficult.

A DWI does not mean an automatic loss of child custody, and the judge won’t necessarily use a Raleigh DWI arrest as the sole reason for denying you custody. But there are other factors that may cost you custody of your child or children, including:

  • If it was a single DWI or one of many
  • Your BAC (blood alcohol content) at the time of arrest, and if it was over 0.08, the legal limit
  • If you completed drug/alcohol treatment and/or rehabilitation
  • If you were arrested with an illegal drug or a prescription that inhibited your ability to drive
  • If you were in an accident, and if there were any injuries
  • If any children were in the car with you at the time of the arrest
  • Your criminal record—are there any additional pending charges?

Losing your license, or having severe restrictions, can also affect your visitation with them, especially if you can’t pick them up and drop them off.

A DWI Has Long-Reaching Consequences

In addition to a very expensive court case, the rest of the consequences can be just as devastating. A great DWI defense attorney can be expensive, but can save you more than just money.

Dewey P. Brinkley is an experienced Raleigh DWI defense attorney and a former Wake County prosecutor. He can prepare a strong defense and make sure you are fairly represented in court. Contact our Raleigh law office at (919) 832-0307 (or user our online contact form) for a free consultation.

Will Getting My Driver’s License Suspended Affect My Auto Insurance?

A suspended license is bad enough. There’s a process you have to complete in order to have your North Carolina driver’s license reinstated, and it costs money. On top of that, you still need insurance. But once your insurance company discovers your license is suspended, there’s a strong chance you’ll be paying more for your auto insurance.

Reasons For Suspension

North Carolina drivers license attorneyLicense suspensions happen for a number of different reasons. North Carolina uses the “point” system, and even a single point can raise your insurance rates without a suspension. After you’ve accumulated seven points, the state requires you to take a Driver Improvement Clinic. If you accumulate 12 points in a three year period, your license could be suspended anywhere from 60 days up to a year.

Suspension for risky driving behavior may cause your insurance company to cancel your policy. The most common reasons are moving violations, such as:

  • Speeding
  • DWI
  • Hit-and-run
  • Felony with a motor vehicle
  • Vehicular homicide
  • Evading a police officer
  • Reckless driving
  • Driving without insurance
  • Reckless endangerment in a construction zone

Your driver’s license can also be suspended for non-vehicle related reasons, such as:

  • Court probation and violations
  • Failing to pay child support
  • Acts of fraud
  • Leaving a child unattended in a running vehicle
  • Undergoing rehab for an alcohol and/or chemical dependency
  • Failure to appear in court for parking or other tickets

Some insurers may not raise rates for non-vehicular suspensions, but that varies by company.

If your North Carolina driver’s license is suspended long-term, you may be considering cancelling your insurance until your license is renewed. This may not be a good idea, since getting re-insured later may cost more. A non-owner’s policy may be available through your insurer to keep you insured until you can drive again. You may also consider shopping around for new insurers before you cancel completely.

License Reinstatement

Whether your suspension is temporary or is a permanent revocation, it is a permanent part of your driving record.

North Carolina’s process for reinstating a driver’s license begins when you receive a letter informing you that your license is suspended. Depending on the reason why your license was suspended, you may request an administrative hearing by contacting the central DMV office in Raleigh. You can contact the office by phone: (919) 715-7000, or by mail:

Driver License Hearings
3118 Mail Service Center
Raleigh, NC 27697

When your suspension period is completed, or you’ve been restored through a hearing, you’ll have to visit a NC DMV office, re-apply for your license, and pay a restoration fee of $65 (or $130 if it was for DUI), as well as a $50 service fee.

If your suspension was for a non-vehicular reason, such as nonpayment of child support, you will need to comply with the provisions of the agency or court that issued the suspension.

Once your North Carolina driver’s license is restored, all points are then cancelled.

Return To The Driver’s Seat

A suspended or revoked license doesn’t mean your driving days are over. You can get your license back, even if it does take time. Need help? North Carolina driver’s license suspension attorney Dewey P. Brinkley is your best chance in Raleigh for getting your license back and your driving privileges restored. He can help you through the appeals process and defend you in court. Call today: 919-832-0307 (or contact him online) to schedule an appointment for your free initial consultation.

Are Raleigh Field Sobriety Tests Admissible In Court?

Finding yourself pulled over by a police officer in Raleigh is bad enough. Now you’re being asked to take tests to prove that you’re sober. You know that these field sobriety tests are actually intended to prove that you’re inebriated. Maybe you are, maybe you aren’t, but you know that whatever happens, the tests will be brought to court. So, are they actually admissible?

Taking Or Not Taking Field Sobriety Tests

Raleigh field sobriety testsIn our blog from December, we discussed the three parts to Field Sobriety Tests (FST). They are:

  • The “Walk-And-Turn” Test
  • The “One Leg Stand” Test
  • The “Horizontal Gaze Nystagmus Test” (HGN)

Police perform these tests at a roadside stop or at DUI checkpoints when an officer has reason to believe you are driving intoxicated.

These Raleigh field sobriety tests were developed and perfected in a laboratory, but side-of-the-road testing may not always be as effective, or accurate.

The officer makes the arrest decision based on the way you perform on these tests as to whether you are “impaired.” But the same “clues” that tell a police officer that you are intoxicated can also be attributed to other factors. Medications, weather, the time of day or night, your physical condition, and other factors can contribute to “failing” standard FSTs.

For instance, if you were playing basketball earlier in the day and twisted your knee, you’ll likely have trouble with the first two tests, especially if your knee still hurts. Even if you’ve consumed no alcohol, the officer may declare you “intoxicated,” because you couldn’t walk exactly right or stand on one knee.

Fighting Back Against an FST

Raleigh, NC Field sobriety testing is admissible in court, if everything was conducted correctly and the officer correctly followed procedure. In many cases, however, they weren’t, and can be rendered inadmissible. A DUI defense attorney can challenge the results and the way they were taken, and have the results dismissed from the case.

If these roadside assessments were accurate more than 90% of the time, you probably wouldn’t be able to defend yourself in court, let alone have the charges dismissed. But Field Sobriety Tests aren’t always accurate, particularly when given at a roadside stop. Even sober drivers may not be able to pass an FST for reasons other than alcohol consumption and/or intoxication.

Research from the Southern California Research Institute shows that each of these tests are accurate less than 80% of the time. Police officers must also follow a procedure to properly administer an FST. If he or she fails to follow procedure, some or all of the collected evidence can be dismissed.

You can refuse to take FST, particularly if you have other conditions that would cause you to “fail” the test, such as an injury. Inform the officer that you are declining to take these tests because of their inaccuracy. He or she cannot take your license based on FST refusal.

However, your refusal can be a reason to arrest you anyway and require you to take a Breathalyzer or other chemical test for BAC (blood alcohol content). A refusal can also be used against you in court later (North Carolina General Statute § 20-139.1(f)), and the officer can claim that your refusal was due to a “guilty conscience,” because you knew that you were “intoxicated.”

Whichever choice you make, it’s important to be polite, and cooperate with the police officer’s requests.

Occasionally, officers may request you to attempt non-standard FSTs, including:

  • Reciting the alphabet, or reciting it backwards
  • Counting to a certain number, then counting backwards
  • Putting your finger to your nose

If you’re arrested based on failing these nonstandard roadside tests, a DUI defense attorney can have them dismissed.

As we mentioned in our last blog, refusing a FST is not the same as refusing a EC/IR-II Breathalyzer test, which will result in a 12 month suspension of your license. You may still be arrested for refusing FST, but you won’t lose your license as a result.

Call An Experienced DUI Attorney for Field Sobriety Testing

These roadside tests aren’t always accurate. You need an experienced DUI attorney who can work to have them dismissed, especially if they weren’t properly administered or yielded a false positive.

A Raleigh, NC DUI charge needs to be handled properly to avoid severe consequences—especially if you weren’t driving drunk. Dewey P. Brinkley is a Raleigh DUI defense attorney who can aggressively defend you and protect your rights in court, ensuring a fair trial.

Call the law offices of Dewey P. Brinkley today for a free initial consultation to discuss your DUI case at (919) 832-0307. You can also email us at dewey@deweypbrinkleylaw.com, or use our online contact form.

In Raleigh, NC What are the Costs of Getting a DWI Conviction?

There are a number of factors to consider when you’ve been charged with DWI, and even more with a conviction. The safety of yourself and others, the possible damages caused, and the possibility of spending time in jail is avoidable by calling an Uber or a taxi for $20 or so and parking your car.

But there’s one part of getting a DWI that most people don’t consider: how much it will cost.

The Arrest

In Raleigh, NC What are the Costs of Getting a DWI Conviction?Your license is immediately revoked if there is a blood alcohol content of 0.08 or higher. You’ll lose your license for 30 days, just for being charged with DWI. You can request a limited driving privilege after 10 days, which will cost $100, plus whatever it costs you to get to work for ten days (if you still have a job.)

You will also be required to complete a substance abuse assessment costing $100, and you’ll need a certified copy of your driving record, about $15.00. If you’re approved for the privilege, you’ve spent $215 to drive for 19 days out of 30. Since it’s a criminal charge, you’re required to appear in court.

If you hire an attorney, that will also cost—a minimum of $500, but probably more than $2,500. Attorney’s fees will also vary depending on variables such as your first charge or a subsequent charge, such as if any property damage occurred, or if anyone was injured or killed as a result.

If your charges are dismissed, that’s the end of it. But if you’re headed for trial, it’s going to get a lot more expensive.

Depending on the type of job you have, you could be terminated after the arrest, especially if you hold a Commercial Driver’s License (CDL.)  Not only will you lose your income, but you will also have a difficult time finding another job with a DUI.

The Trial And Conviction

Going to trial for DWI means there is a strong chance of not only conviction but jail time.

North Carolina has five levels of DWI charges, with Level 5 being the lowest and Level 1 being the highest, with the highest punishment, fees, and license revocation. Fines alone start at $200 and go as high as $4,000 just for the DWI. An aggravated Level I felony can be as high as $10,000 in fines. You’ll also owe additional court costs.

After A Conviction

In addition to or instead of jail time, you may be able to perform community service, at a cost of $250. You’ll also be required to complete substance abuse treatment, the cost of which is determined by the agency and can be as high as $800 to $1,000.

You’ll also have to complete the Alcohol and Drug Education Traffic School, which will also cost about $260. Additionally, monthly post-conviction substance abuse assessments cost $100.

If you want to regain your driving privileges, you’ll also have to pay to get your license restored, which can run upwards of $300.

Before you can start driving again, there’s also the matter of car insurance. You’ll find that you can get an insurance policy, but it will be considerably more expensive. Most drivers find their insurance increases an average of 400% after a DUI.

One more thing—you’ll be required to have an ignition interlock system installed on your car before you can drive again. This system requires you to blow into it, just like a breathalyzer, before you can start your vehicle. You’ll also be required to stop and “blow” again during your drive to continue driving. If at any time the system detects alcohol, you won’t be able to drive. Purchase and installation run between $2,000 and $4,000, with monthly maintenance at about $100 per month.

Other Costs of DWI

If you caused property damage while driving intoxicated, such as hitting someone’s car or house, you will also find yourself on the receiving end of a personal injury suit from the other party (or wrongful death if someone died as a result of the accident.)  You may be sued by the other party for medical expenses, lost and future wages, pain, and suffering, and other compensatory damages, and you’ll be responsible for them. A wrongful death lawsuit, filed by the relatives the person who died in the accident, can also end up with a large monetary settlement you’ll have to pay. These expenses can’t be dismissed in a bankruptcy, either. If you own property, such as a house, a lien can be placed on the property until you pay it.

When you add it up, avoiding a DWI by taking a bus, or calling either a taxi, Uber, or a friend to pick you up is a lot less expensive.

DWI Is Expensive

Getting arrested for DWI can cost more than just money—you could do prison time, in addition to losing your job, your home, and your rights. A DWI will also follow you around for the rest of your life, no matter where you live. Having a DWI defense attorney does cost money, but can save you a lot more, including your freedom and your rights.

Dewey P. Brinkley is a former Wake County prosecutor who works to defend DWI cases. He will prepare a strong defense and make sure you receive a fair trial under the law. Contact our Raleigh law office today at (919) 832-0307 (or user our online contact form) for a free consultation. You can also email him at dewey@deweybrinkleylaw.com.

In Raleigh, NC Can Getting A Traffic Ticket Affect My Credit Score?

As if getting a traffic ticket isn’t bad enough, the idea that it might affect your credit score is even worse. You may have even been told that the traffic ticket goes on your credit report. But does it?

It doesn’t–but most bills that go unpaid for any length of time end up in a collection agency. Over time, if you still don’t pay the bill, the collection agency may be able to take you to court over the unpaid bill (depending on how much it is, along with attorney’s fees.) As a rule, the collection action and judgment is what ends up on your credit report—not the actual traffic ticket.

Two Separate Processes

man receiving a traffic ticket

The ticket is an action initiated by a police officer if you’re stopped for a violation, such as speeding. You can go to court to contest it (with or without an attorney), or you can just pay the fine and be done with it. Whichever you choose, there is likely a fine involved, which must be paid. If you don’t go to court, it’s an unresolved violation with additional fines and consequences, including a license suspension.

If you don’t pay the fine, it’s a delinquent charge after a certain number of days. The municipality that issued the fine may, at some point, send it to a collection agency for them to try and collect the money for it. Until recently, the collection agency’s action is what would and could affect your credit score.

The National Consumer Assistance Plan

This plan, developed by the big three credit reporting agencies, Equifax, Experian, and TransUnion, removes certain types of collection actions from credit reports in two stages.

·         As of June 15, 2016, collection agencies cannot report debts that did not originate from a contract or agreement to pay. This means that unpaid parking and traffic tickets, library fines, and other charges from governmental agencies, domestic and foreign, won’t appear on your credit report.

·         As of July 1, 2017, civil judgments tax liens and civil judgments can’t be included in a consumer’s credit report without either their Social Security number or DOB, in addition to the individual’s full name and address.

Some of these types of charges have lowered credit scores as much as 100 points. If a traffic ticket in collections negatively impacted your credit report, the new rules may remove them. Your credit score may benefit as a result.

But You Still Need To Pay The Fine

This is not to say that you can ignore the ticket and get out of paying the traffic fine—far from it.

By simply paying the fine, you are admitting guilt. Working with a traffic ticket attorney to have your charges reduced or to fight the charges may keep points off your record, but you still need to pay any fines and court charges.

You can also be charged $200 for “failure to appear.” Your ticket indicates the fines involved with the charges, as well as any additional fees if you don’t show up, don’t take corrective action (such as hiring an attorney to represent you in court) or don’t pay it within 20 days of issuance. Fines can increase the longer you ignore them.

Eventually, the state of North Carolina will notify you that your license is being suspended, and you’ll still have to appear in court.

Additionally, you’ll receive additional points on your driver’s license, and your insurance rates will likely increase.

Ticketed In Raleigh? Call Today

A traffic ticket isn’t usually a big problem. But don’t ignore it, or it can get worse. Don’t let a traffic ticket raise your insurance rates or get your license suspended.

If you received a traffic ticket in Raleigh, contact Dewey P. Brinkley in Raleigh, NC. You can use our online contact form or call our offices any time at 919-832-0307. We look forward to helping you.

 

In Raleigh, NC Does A Suspended License Show Up On A Background Check?

Job hunting is a lot more complex than it used to be. Credit and background checks are standard procedure for new hires, and in some cases, applicants. Many organizations feel that it’s better to do a background screen on an individual before they even interview them, especially since it’s now much less expensive.  In Raleigh, NC Does A Suspended License Show Up On A Background Check?

 

Background checks are part of the normal course of business for more than just jobs. If you’re trying to rent a new apartment, the new landlord or management company wants to make sure you’re someone they can reasonably trust to take care of their property and won’t be a “bad neighbor.

If you’re attempting to purchase a firearm, a criminal background check is standard procedure. Specific jobs, such as teachers and childcare workers, will undergo a more thorough background check to comply with the elevated standards that are part of the job.

What A Background Check Finds

When someone says they will be doing a “background check,” it means that they will be looking at your criminal history, particularly within the last 7 to 10 years. They will also be checking to see if your education and experience match what you’ve listed on your resume. Employment background checks can also include driving records, credit records, reference verifications, and drug screens, depending on the type of job you’re applying for. If you’re applying for a job that requires a valid driver’s license, a driving record check will likely be included.

If there is any adverse information in your report, particularly a criminal conviction, it will show up, and you’ll likely be questioned about it. If there is an entry that you know will appear, it’s best to mention it to the company before they run a check, and alert them that it will appear. A company considering you for a job where money is handled will want to know if you’ve previously been accused of or convicted of a money-related crime, such as embezzlement.

The National Driver Register

This division of the National Highway Traffic Safety Administration (NHTSA) is a nationwide database of individuals who have lost their driving privileges. The NDR is a repository of driving infractions from DMV offices around the US. Anyone running a background check with the NDR will find a suspended license, as well as a revoked or denied for cause, such as a DUI conviction.

Although all 50 states participate, it is not without error, and some records may not have been updated as they should have been. However, the driving records are not kept with the NDR, they are handled and updated at the state level. Record updates are done according to the individual state’s recordkeeping requirements.

Get Help With A Suspended License

If your license has been suspended, you may need help getting it reinstated. Attorney Dewey P. Brinkley is your best chance in Raleigh for reversing your suspended license and your driving privileges restored. Don’t let a suspension cost you your job, housing or other things. He can help you through the appeals process and defend you in court. Call today: 919-832-0307 (or contact him online) to schedule an appointment for your free initial consultation.

Should You Submit To A Field Sobriety Test When Pulled Over In Raleigh, NC?

Whether at a checkpoint stop or just being pulled over, you may be asked to take a field sobriety test to determine if you are driving under inebriation. However, you do have the right to refuse to take these “roadside tests” even if you have consumed alcohol.

But if you’re sober, why not take them and prove that you are? Because like a breath alcohol device, field sobriety tests are not always accurate, and may not be properly administered. You could end up being arrested for “driving under the influence” when you’re anything but.

Field Sobriety Testing (FST)

North Carolina officers administer a series of three roadside tests to determine if a driver is impaired:

Should you submit to a Field Sobriety Test when pulled over in Raleigh, NC?

·         The “Walk-And-Turn” Test—the officer will ask you to walk in a straight line, one foot in front of the other so that the officer can observe your sense of balance. He or she may also ask you to take a specific number of steps, and observe if you can remember the number. Unfortunately, a number of variables can affect your balance, from foot pain to uncomfortable shoes to other physical impairments.

·         The “One Leg Stand” Test—the officer will ask you to stand on one leg for 30 seconds and count to 30. The officer will observe both balance and your ability to count. The officer is looking for four things:

  • Swaying while balancing
  • Balancing with arms
  • Hopping
  • Putting down the raised foot

Like the previous test, a number of variables can affect the outcome, including your age, weight, street or weather conditions or your current physical condition, such as an injury like a pulled muscle. Officers who incorrectly administer the test may interpret the results incorrectly, declaring you “impaired.”

·         The “Horizontal Gaze Nystagmus Test” (HGN)—this is the test where an officer asks you to stand still, hands at your sides, and follow his finger, a light, or some other object put in front of you. If your eyes don’t move smoothly side to side, but in a jerking fashion, you’ll be determined to be “impaired.”

Additionally, breath alcohol testing mechanisms may not be used or calibrated properly, leading to even more inaccurate evidence.

These tests are, by some accounts, designed to make you fail them. The passing and failing of these tests is a personal decision made by the officer.

Obviously, a number of factors can affect the outcome. Fatigue, allergies, injuries and other ailments can lead to a “failed attempt.” An elderly driver not in peak physical condition may not be able to hold his or her leg up for 30 seconds or do a walk-and-turn to the officer’s satisfaction.

No matter how well you perform these tests, if the police officer renders an opinion in court that you didn’t perform them adequately, this would indicate to him or her that you were indeed “impaired,” even if you weren’t. A jury may well side with the officer based on his or her opinion.

Additionally, breath alcohol testing mechanisms may not be used or calibrated properly, leading to even more false evidence.

Refusing The FST

So what happens if you refuse to take these tests?

You are within your rights to refuse to take the FSTs, as well as inform the officer that you have a medical condition that can affect the outcome (such as recent knee surgery.) You will not lose your license. But because of the high incidence of incorrect results, it’s better to decline the FST rather than explain to a court why you failed them. This way, you’ll be arguing that the testing is unreliable and wasn’t suitable instead of defending yourself against a “failed” FST.

CAVEAT: refusing the EC/IR-II Breathalyzer test is another matter and can lead to a year-long suspension of your license. This is not the same as refusing the FST. But like the FST, these devices are also subject to incorrect results, especially if the officer is not properly trained in their use, or it has not been properly calibrated or maintained.

Miranda warnings are also not required before a Breathalyzer is administered.

Have You Failed An FST? Call An Experienced DUI Attorney

If you’ve been subjected to a suspected DUI traffic stop, Dewey P. Brinkley is a Raleigh attorney who can aggressively defend you and protect your rights in court. He will review all the evidence in your case and ensure that you have a fair trial.

Call the Law Offices of Dewey P. Brinkley today for a free initial consultation to discuss your DUI case at (919) 832-0307. You can also email us at dewey@deweypbrinkleylaw.com, or use our online contact form.

 

Can a Traffic Ticket Affect the Renewal of My Green Card in Raleigh, NC?

When it comes time to renew your green card, one of the questions you’ll be asked is if you were arrested, or committed any violations. If you’ve received a traffic ticket, even for something minor, you must answer “yes,” no matter how minor. Because if you answer “no,” they’ll find out anyway. Not telling the truth can definitely have an effect on your green card renewal. But a ticket, especially for something minor, doesn’t necessarily mean your green card won’t be approved.

Getting A Ticket

Can a Traffic Ticket Affect the Renewal of My Green Card in Raleigh, NC?Since becoming a US citizen takes a long time, a “green card” can give you the time you need to stay in the US while your citizenship is being processed. If you acquire a driver’s license in the US, you’ll also have to follow the laws for driving a car in the state where you live.

You may find yourself with a ticket one day. Don’t ignore it, take care of it. An attorney who understands how traffic court operates can help you so that it doesn’t become a bigger problem.

U.S. Citizenship and Immigration Services (USCIS) will ask you about any arrests, tickets or other infractions. As embarrassing as it can be to admit, you should always say “yes.”

After you fill out Form I-90 with USCIS, you’ll also be required to submit fingerprints, which are forwarded to the FBI. After the FBI receives your fingerprints, they’re checked against multiple law enforcement database. If you’ve received a citation of any kind (or have an arrest), the FBI will know immediately.

The Misdemeanor

Obviously, serious felonies crimes will most certainly affect your green card, and possibly derail your citizenship. But a misdemeanor is a different story.

Under US Immigration Law, a misdemeanor is one that:

  • Is punishable by one year or less of imprisonment
  • Is punishable by more than one year’s imprisonment, but is a misdemeanor by state law, as long as the sentence the individual actually received was one year or less.

Most minor traffic tickets are misdemeanors, and won’t cause a problem for your green card renewal, as long as you don’t lie about it.

However, federal immigration laws are different than most state laws regarding misdemeanors. This means that some things considered misdemeanors at the state level may actually be a felony under federal immigration laws.

What Is A Crime For Immigration

Crimes that will affect your immigration are any misdemeanors involving:

  • Drug/controlled substance violations
  • Any crime involving violence
  • Any crime involving moral turpitude

Conviction of a crime that involves violence is a felony under immigration law, even if it’s considered a misdemeanor at the state level, and is grounds for immediate removal from the US. (If you’re accused of a crime involving violence, contact an immigration attorney immediately.)

Conviction of two crimes involving moral turpitude that were not from a single act is grounds for removal by DHS. This is true of crimes that the state considers a misdemeanor. However, a single act of moral turpitude would not be enough for DHS to initiate removal if the maximum sentence at the state level is less than one year.

Conviction of a controlled substance violation, which includes paraphernalia, is also grounds for denial of your green card and removal, even if the state considers it a misdemeanor. The exception is for less than 30 grams of marijuana.

Particularly difficult is the possession of marijuana, which is actually legal in a number of states (but not in North Carolina.) While less than 30 grams is not grounds for denial of your green card and removal, it is grounds for inadmissibility. This means if you leave the US, you can be denied re-entry. You’ll have to apply for a waiver of inadmissibility to be allowed back into the US.

Ticketed In Raleigh? Call Today

A traffic ticket probably isn’t the end of the world, but it can cause problems, especially if you ignore it. Don’t let a traffic ticket raise your insurance rates or cause problems getting or renewing your green card.

If you have received a traffic ticket and would like to learn more about your options, contact Dewey P. Brinkley in Raleigh, NC. You can use our online contact form or call our offices any time or call 919-832-0307. We look forward to hearing from you.

Appealing a Suspended License in Raleigh, NC

If your driver’s license has been suspended, it’s inconvenient, but may not be permanent. North Carolina has an appeals process for a license suspension so that you can, eventually, get it back.

Why Was Your License Suspended?

There are a number of reasons why your license can be suspended. The ease or difficulty of appealing depends on why your license was suspended, and for how long. The state will notify you in writing of the suspension, and list the reason.

If your suspension is for an insurance lapse, failing to pay a ticket or appear in court, excess points on your driving record, or other administrative reason, you simply need to comply with the requirements and your license will be reinstated.

However, if you’ve lost your license for things like speeding or failing to stop and render aid in an accident, the suspensions are longer. Charges such as DWI, death by vehicle (misdemeanor) participation in illegal street racing and refusing a blood test can lead to suspensions of 1 to 4 years.

Appealing a Suspended License in Raleigh, NC

Additionally, your license can be suspended for:

  • Two speeding convictions over 55 mph in a 12-month period
  • One conviction of speeding (over 55) with one conviction of reckless driving in a year
  • As part of a sentence or suspended sentence that revokes your driving privileges
  • A conviction for speeding in excess of 75 mph

Subsequent DWIs or felony death by vehicle incurs a permanent license suspension.

A suspension can also be part of a separate action, such as a criminal conviction or failure to pay child support. In cases like these, you’ll need to comply with the requirements (such as pay back child support or serve a jail term) before you can go through the process of getting your license back.

A suspension becomes part of your permanent driving record.

Administrative Hearings

Once you’re notified that your license has been suspended, you may be able to request an administrative hearing to appeal. This will depend on the reason your license was suspended, and you’ll retain your driving privileges (and your license) until the hearing. The hearings are not guaranteed and will be granted based on the reason for the suspension.

To request a hearing, you can contact the central DMV office in Raleigh at 919-715-7500, or by writing to:

North Carolina Department of Motor Vehicles

Driver License Hearings
3118 Mail Service Center
Raleigh, NC 27697

The DMV will notify you in writing of the day and time of your hearing. If you lose this hearing, you can appeal the decision to the North Carolina Superior Court in your resident county. But you must file your appeal to NC Superior Court within 30 days.

Getting Your Driver’s License Back

If you’re not able to win on appeal, you’ll need to go to your local DMV office after your suspension is over and pay a $50 fee ($100 if you were suspended for DUI) and re-apply for your license. You may be required to re-take any testing involved.

Get Back Behind The Wheel

Having your driver’s license suspended or revoked doesn’t mean you’ll never legally drive again. But license restoration is a process and can take some time. Need help? Attorney Dewey P. Brinkley is your best chance in Raleigh for getting your license back and your driving privileges restored. He can help you through the appeals process and defend you in court. Call today: 919-832-0307 to schedule an appointment for your free initial consultation.