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Wake County DWI Attorney – Can You Choose Which Test to Take for DWI?

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This is Part 12 of our weekly North Carolina Criminal Defense video blog: “Wake County DWI Attorney – Can You Choose Which Test to Take for DWI?“

Transcript:

You don’t have a choice. The officer has the opportunity under our law to make the decision about whether it will be a breath test or a blood test. Typically, it’s a breath test if they believe the impairing substance is alcohol.

If it’s a drug impairment case, which we’re seeing more and more, whether it is prescription drugs, or marijuana, or any other controlled substance, then that officer’s going to seek a blood test.

Basics About DWI Chemical Tests

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When arrested for a DWI offense in North Carolina, one of the most important pieces of evidence is the results of the chemical tests. According to North Carolina law § 20-139.1, chemical tests are admissible as evidence and also deemed as sufficient evidence to prove a person’s blood alcohol concentration (BAC). The chemical tests are usually given after a field sobriety test during a traffic stop, and they are generally considered reliable.

 

However, as DWI defense attorneys in Raleigh, NC, we at the Law Office of Dewey P. Brinkley know that DWI chemical tests aren’t always perfect. If you need one of the leading defense attorneys with years of experience representing people just like you, call criminal defense attorney Brinkley today at (919) 832-0307.

North Carolina Implied Consent Laws

Under North Carolina law § 20-16.2, the “implied consent” law, if a police officer has probable cause to believe that you’ve been drinking, then you already consent to a blood or breath test to determine your BAC. You can be asked to comply with a chemical test before arrest as well, such as at a DWI checkpoint, if you were in an accident, or if you were caught breaking a traffic law, and the officer believes you were drinking.

The actual text of the law reads: “Any person who drives a vehicle on a highway or public vehicular area thereby gives consent to a chemical analysis if charged with an implied-consent offense. Any law enforcement officer who has reasonable grounds to believe that the person charged has committed the implied-consent offense may obtain a chemical analysis of the person.”

Refusing to Take a Blood, Breath, or Urine Test in North Carolina

After the arrest, the police officer should inform you, in writing, that refusing a chemical test can result in the automatic suspension of your driver’s license for a year. If it’s your first chemical test refusal, you could get limited driving privileges after serving 6 months of the suspension.

It’s important to keep in mind that refusing a chemical test isn’t a “get out of jail free” card. Refusing the test won’t keep you from getting convicted for DWI. On the contrary, the prosecution may argue that you refused the chemical test because you knew you were legally intoxicated.

Chemical Test Process in North Carolina

Usually, the chemical test will come after the field sobriety test, or if the police officer has strong reason to believe that you’re intoxicated. The three types of chemical tests  include:

  • Breath tests – Breath tests are most commonly measured with the portable breathalyzer. This indirectly measures BAC by testing for alcohol on the subject’s breath, and then a formula is used to determine the amount of alcohol concentration in the subject’s blood.
  • Blood tests – A sample of blood is analyzed to determine BAC. Alcohol is quickly absorbed into the blood, and so a blood test is a quick and easy way to determine BAC.
  • Urine tests – Urine tests are also another method for determining BAC or drugs in the system. This test is also indirect, as it uses the amount of alcohol in the urine to determine overall blood alcohol concentration.

Field Sobriety Test and Symptoms of Being Drunk

Before getting a chemical test, police officers may ask you to take a field sobriety test or they will, at the least, look for signs of drunkenness, such as slurred speech, red watery eyes, and the odor of alcohol.

Generally, the field sobriety test occurs at the scene of the traffic stop. The field sobriety test will often include the following physical and mental tests:

  • Nystagmus Test – Checking the eyes for lateral or horizontal jerking
  • Reciting the alphabet forwards and backwards
  • Standing and listening to directions, walking in a straight line, turning around, and walking back to the officer
  • Standing with feet together, head back, and touching your nose with the tip of your finger, as directed by the police officer

Call Raleigh DWI Attorney Dewey Brinkley to Fight Your Charges

If you’ve been arrested for a DWI, you may be asked to take a field sobriety test or a chemical test. The results of these tests are heavily considered in courts, but these tests aren’t perfect. To get one of the leading criminal defense attorneys in the Raleigh NC area, call the Law Office of Dewey Brinkley today. Free consultations are available, so don’t hesitate and call today at (919) 832-0307.

Pulled Over? Know Your Constitutional Rights?

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To protect citizens from police misconduct, overarching reaches of power, and unjust policing, the U.S. Construction, federal laws, and North Carolina laws all provide a degree of protection. This is one of the bedrocks of our country, and so when you’re pulled over in North Carolina, it’s essential to remember your Constitutional Rights and know how they relate to your unique situation.

 

As one of the leading DWI and criminal defense attorneys in the Raleigh area, attorney Dewey Brinkley understands that violations of your Constitutional Rights can be used in court to get your charges dropped or your case dismissed. With attorney Brinkley at your side, you can expect vigorous and relentless protection of your rights as well as comprehensive litigation strategies to get you the outcome you want.

If you were arrested for DWI or another crime in the Raleigh and Wake County areas, call the Law Office of Dewey P. Brinkley today at (919) 832-0307.

Your Constitutional Rights in a Traffic Stop

The truth is, when you’re being pulled over and charged with a serious North Carolina law violation, you might be unaware of some of the Constitutional Rights that you have. At the same time, however, drivers in North Carolina should be diligent and take careful consideration regarding why they’re being pulled over and whether there are any illegal or incriminating objects on their person or in their vehicle.

One of the most common DWI defense strategies that you and your attorney may pursue can include challenging the legality of the traffic stop and the legality of the police proceedings before, during, and after the arrest. During the arrest, however, there are some rights that you should know (and know how to use), including:

Unreasonable Search and Seizure (the Plain View Doctrine)

It’s essential to remember that North Carolina law enforcement is limited in their ability to search private vehicles. In short, the Fourth Amendment of the Constitution states that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

In simple terms, this means that the police cannot search you or your property without a warrant. However, this is not all-inclusive, as the Plain View Doctrine also states that criminal conduct that a police officer observes in plain view is subject to search and seizure without a warrant or probable cause. As such, if you are swerving and, after the police officer pulls you over, observes your bloodshot eyes and smells alcohol, the police officer has probable cause that you may be intoxicated.

If the officer cannot explain his/her probable cause for stopping your vehicle, then the evidence obtained during the stop, such as your BAC level, may be ruled inadmissible in North Carolina courts.

Right to Remain Silent

One of the second most important Constitutional Rights is your right to remain silent. This is covered by the Fifth Amendment. In other words, you retain the right to refuse to answer certain questions, such as “Have you been drinking tonight?” “Where are you going?” “Where are you coming from?” etc.

Keep in mind that no criminal action may be taken against a driver refusing to offer potentially incriminating information; however, there may be administrative penalties for refusing to cooperate, such as an automatic license suspension for drivers who refuse to take a field sobriety test, a breathlyzer, or a chemical test.

If you want to use your Right to Remain Silent, make sure that you say so out loud.

Availability of a Public Defender (Right to Counsel)

Lastly, in the United States, the Sixth Amendment states that you have the right to an attorney, and if you cannot afford one, an attorney will be provided by the state, free of charge.

The Do’s and Don’ts of a Traffic Stop in North Carolina

When being pulled over for a DWI or another alleged criminal charge, it’s crucial to listen to the police officer, respectfully assert your rights, and, if the police officer is violating your rights, let the courts and your defense attorney fight for those rights. Some Do’s in a traffic stop should include:

  • DO show your license, insurance, and registration materials when asked.
  • DO keep your hands on the wheel and notify the officer when you are reaching for anything.
  • DO say, “I do not consent to a search.”
  • DO sign a ticket if you are given one; refusing to sign the ticket could result in further charges.
  • DO take the DWI test, unless you’re willing to lose your license for a year.

Some Don’ts in a DWI stop include:

  • DON’T physically resist a search. Calmly state, “I do not consent to a search.”
  • DON’T search for your license or registration until asked.
  • DON’T disrespect the officer, even if that officer is violating your Constitutional Rights.

Call Your Raleigh NC DWI Attorney For a Free Consultation

Being arrested for a DWI is never a pleasant situation, and you can make the matters worse by aggressively asserting your Constitutional Rights. In any case, always remember that you have the right to be free from unreasonable searches, you have the right to remain silent, and you have the right to an attorney.

Therefore, if you’re being arrested for a DWI in Raleigh or Wake County, make sure to call the leading Raleigh DWI attorney Dewey Brinkley. For a free consultation with our law firm, call us today at (919) 832-0307.

Defense Options for NC DWI Cases

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The best way to fight against a DWI charge in North Carolina is to speak with an experienced, knowledgeable Raleigh NC DWI attorney. With legal expertise at your side, you can take your case to the courts and vigorously defend your case, show violations in police conduct, and present evidence countering the prosecution’s narrative. Remember, even though you’ve been arrested for a DWI, you have valuable rights that could help you win your case.

At the Law Office of Dewey P. Brinkley, we are NC DWI attorneys with years of experience helping individuals just like you. We present a comprehensive, vigorous litigation strategy, as well as a close, one-on-one relationship with our clients. In short, we’ll fight your charges together. To speak with DWI attorney Brinkley, call our Raleigh law firm today at (919) 832-0307.

What the Prosecution Must Prove

In any DWI case in North Carolina, there are several elements that the prosecution must prove in order to successfully win a case. Although courts can be pretty strict towards the defendants, the rule of law states that the prosecution needs to, at least, show that the 1.) you were driving and 2.) while driving, you were “under the influence” of drugs or alcohol.

Therefore, for DWI cases in North Carolina, the defense can try to disprove either of these 2 items, effectively preventing the prosecution from proving its case. Keep in mind that there are many defense strategies in DWI cases, but, ultimately, your attorney should attempt to achieve a:

  • Dropped or dismissed case
  • A not-guilty ruling
  • If the evidence is truly stacked against you, your attorney should seek reduced or alternative sentencing

Driving-Related DWI Defenses

To be arrested for a DWI charge in the Raleigh area, you actually need to be driving a vehicle. In other words, if you weren’t driving, you can’t be convicted of DWI. Often, most DWI cases begin with the defendant getting pulled over, so there isn’t much contention in this area. Nonetheless, if the arresting police officer didn’t actually observe you driving, the issue may be debatable depending on the evidence.

Arrest-Related DWI Defenses

Driving-related DWI defenses can be rare and quite difficult unless there were exceptional circumstances. Arrest-related DWI defenses can be more common, as these defense strategies focus on the police officer’s legal justification for the stop as well as the officer’s legal procedures during the arrest. If the defense can find faults with the legal justification and the legal procedures, this could lead to dropped or dismissed charges in courts.

Some specific defenses include:

  • No probable cause  – If the arresting officer didn’t have probable cause to stop your vehicle or arrest you for drunk driving, then you may argue to dismiss the associated evidence from trial.
  • No Miranda Rights – If you’re being arrested, the police officer must read you your Miranda Rights. If the officer doesn’t, you may be able to exclude certain pieces of evidence from trial.
  • Challenging the officer’s professional observations of your behavior – In many DWI stops, the officer has authority to look at your behavior to determine if you’ve been drinking or using drugs. The prosecution will use the police officer’s observations as evidence in the trial, and this could include your driving, how you looked and acted once stopped, and how you performed during the field sobriety tests. Your defense attorney should challenge some of these assertions.
  • Introducing witnesses who can counter the prosecution’s statements – When other individuals saw something differently than the police, then you and your DWI attorney can call them in as witnesses.
  • Provide other explanations regarding your behavior and appearance – You and your attorney can counter the claim that you were drunk by litigating that physical impairments affected your field sobriety test; you eyes were bloodshot due to lack of sleep; your speech was blurred due to medications you have to take, and so forth.

Breath and Chemical Test DWI Defenses

In addition to arrest-related DWI defenses, there are also many effective defenses regarding breath, blood, urine, and saliva tests. In North Carolina, you can be convicted of DWI with a BAC of 0.08% or higher; juveniles under 21 can be convicted of a DWI if they have a BAC of 0.01% or higher. In general, these tests receive a lot of legal weight in the courtroom, and you and your attorney may find it valuable to challenge the accuracy of the officer’s tests.

Other defenses can include:

  • Showing that the officer didn’t provide necessary warnings or information.
  • North Carolina states the specific process regarding how a police officer can administer a chemical test. If the officer didn’t follow these regulations, especially in terms of how the chemical test device was maintained or calibrated, you may be able to get the test results thrown out.
  • Challenging the accuracy of the chemical test results.

Call the Law Office of Dewey P. Brinkley Today

There are many different defenses to pursue in any DWI case; nevertheless, the specific defenses that you and your attorney employ should coincide with the unique circumstances surrounding your DWI arrest. With years of experience successfully helping individuals just like you, Raleigh DWI attorney Dewey Brinkley knows how the circumstances of your arrest will influence effective defense strategies.

To learn more about how we can defend your case, call our Raleigh-based DWI defense law firm at (919) 832-0307.

Don’t Spend The New Years In Jail – How To Avoid Getting A DWI

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Raleigh DWI Attorney Dewey Brinkley

Don’t Spend the New Years in Jail – How to Avoid Getting a DWI

New Years is one of the biggest party nights of the year, packed full of good cheer, friends and family, good food, and, of course, alcohol. While New Years is a night for memories, the risks for a DWI are also highly escalated. Drunk-driving fatalities often occur around the holidays, including New Years, and every year, Raleigh and Wake County law enforcement are intensely trying to reduce alcohol-related road fatalities by being extra diligent towards suspected drunk drivers.

Instead of spending your New Years in jail, you need to take the extra steps to avoid getting a DWI on New Year’s Eve. The most important (and the easiest) way is to not drive after you’ve drunk alcohol. However, if you were arrested for DWI on New Year’s Eve, make sure to call Raleigh DWI attorney Dewey P. Brinkley as soon as possible. We offer free consultations, and we’ll get started on your case as soon as we hear from you.

Call Dewey P. Brinkley for your Raleigh DWI attorney at (919) 832-0307.

Penalties for DWI in North Carolina

There are no happy holiday endings for drunk drivers, and North Carolina law enforcement, courts, and prosecutors will heavily prosecute individuals charged with drunk driving.

If you’re under 21 years old, the penalties for underage drunk driving (if your BAC is under 0.08) may include court fees, fines, jail time, and license suspensions. If your BAC is above 0.08, you may be looking at any of the following penalties:

Level 5 DWI:

  • Immediate license suspension for 30 days
  • Up to a $200 fine
  • Between 24 hours and 60 days in jail
  • Substance abuse assessments

Level 4 DWI:

  • Immediate license suspension for 30 days
  • Up to a $500 fine
  • Between 48 hours and 120 days in jail
  • Substance abuse assessments

Level 3 DWI:

  • Immediate license suspension for 30 days
  • Up to a $1,000 fine
  • Between 72 hours and 6 months in jail
  • Substance abuse assessments

Level 2 DWI:

  • Immediate license suspension for 30 days
  • Up to a $2,000 fine
  • Between 7 days and 12 months in jail
  • Substance abuse assessments

Level 1 DWI:

  • Immediate license suspension for 30 days
  • Up to a $4,000 fine
  • Between 30 days and 24 months in jail
  • Substance abuse assessments

Aggravated Level 1 DWI:

  • Immediate license suspension for 30 days
  • Up to $10,000 fine
  • Between 12 months and 36 months in jail
  • Continued alcohol monitoring
  • Substance abuse assessments

Prior convictions or aggravating factors can dramatically increase the penalties for a DWI. Some aggravating factors may include:

  • Being grossly impaired or having a BAC of 0.15 or more
  • Reckless or dangerous driving
  • Negligent driving that led to an accident
  • Driving with a revoked license

Plan a Sober Ride Home

The penalties for drunk driving on New Year’s Eve are certainly harsh, and due to the increased dangers this night, police and prosecutors might not hesitate to deliver the most severe penalties possible. As such, with the prospect of jail and substantial penalties, and the possibility of gravely injuring other people, the best way to avoid a DWI on New Years is to not drive drunk. Plan a sober ride home instead. Contact a taxi, rideshare, or try to organize with a sober driver.

Contact Raleigh DWI Attorney Dewey Brinkley

If you are arrested for a DWI on New Years, don’t panic and call the Law Office of Dewey P. Brinkley in Raleigh NC as soon as possible. With decades of experience representing and defending individuals charged with drunk driving related offenses, DWI attorney Brinkley will thoroughly guide you through the legal process while aggressively defending your case at every stage. For a free, no-obligation consultation with our Raleigh DWI defense law firm, call us today at (919) 832-0307.

New Felony Goes Into Effect Dec 1 – Boating While Impaired

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Beginning on December 1st, there’s a new felony in North Carolina that you should be aware of: boating while impaired. This law, and the increased penalties associated with it, are due to a crackdown on drunk boating. As such, starting on December 1st, you can be convicted of a felony if you were impaired, driving a boat, and you caused serious injury or death.

Boating While Impaired Defense Attorney | Dewey P. Brinkley Law

At the Law Office of Dewey P. Brinkley, we have defended many individuals charged with DUI and other alcohol-related offenses. We understand the difficulty and anxiety associated with these charges. As one of the leading criminal defense attorneys in Raleigh, we will give your case a comprehensive, strong defense. To speak with attorney Brinkley regarding your case, call our Raleigh office today at (919) 832-0307.

The Boating While Impaired Law in North Carolina

Boating while impaired is not a new law in North Carolina. In the past, boating while under the influence of alcohol or drugs, and with a BAC of 0.08 and above, could result in a misdemeanor. According to G.S. 75A-10(b1), “No person shall operate any vessel while underway on the waters of this State:

  1. While under the influence of an impairing substance, or
  2. After having consumed sufficient alcohol that the person has, at any relevant time after the boating, an alcohol concentration of 0.08 or more.”

Additionally, the law bans any individual from “manipulat[ing] any water skis, surfboard, nonmotorized vessel, or similar device on the waters of this State while under the influence of an impairing substance.”

Violating either of these laws can result in a class 2 misdemeanor. The new law, however, expands on the punishments of boating while impaired. Called Sheyenne’s Law, the law is named after 17-year-old Sheyenne Marshall, who was killed on Lake Norman in 2015 by a drunken boater. In addition to Sheyenne, there were also 25 other boating deaths in North Carolina in 2015, and nearly half of them involved alcohol.

Penalties for Boating Under the Influence

If you’re caught driving a boat or using water skis (or other non-motorized vessels) while under the influence of drugs or alcohol, you may be facing a class 2 misdemeanor. In North Carolina, this may involve 1 to 60 days of active, intermediate, or community punishment. An active punishment signifies jail time, and intermediate and community punishments mean that the judge can impose alternate penalties.

The new boating while impaired law, which takes effect on December 1st, alters this penalty structure. Sheyenne’s Law makes it a felony if an impaired boater causes serious injury or death. The specific penalties are as follows:

  1. If an incident causes great bodily injury, then it may be punishable by a fine of $5,000 to $10,000 and up to 15 years in prison.
  2. If an incident results in death, then it may be punishable by $10,000 to $25,000 fine and up to 25 years in prison.

Operating a sailboat or a powerboat while under the influence of alcohol or drugs, without property damage or serious injury, is still a misdemeanor. For a first offense, the alleged offender could be looking at $200 fine or up to 30 days in jail. For a second offense, the penalties may include $2,000 to $5,000 in fines and up to one year in jail. For a third offense, the penalties may include $3,500 to $6,000 in fines and up to three years in jail.

No matter the charge, even if it was just your first offense, you may also lose your boating privileges. A first offense may restrict your boating privileges by around six months, while a third offense could keep you from driving a boat for up to three years.

Call the Law Office of Dewey P. Brinkley

Boating while impaired is certainly dangerous, and Sheyenne’s Law is North Carolina’s attempt at making the state’s lakes and rivers increasingly safe. Nonetheless, the law can be complicated, and if you were arrested for boating while impaired, you need to call the most experienced criminal defense lawyer in the Raleigh area. At the Law office of Dewey P. Brinkley, we’ve successful defended many individuals charged with DWIs as well as boating while impaired charges.

For a free, no-obligation consultation with defense attorney Dewey Brinkley, call our Raleigh law firm today at 919-832-0307.

What is the Difference Between a DWI and a Wet Reckless Charge?

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Being arrested for a DWI can present some serious consequences in North Carolina. Although a DWI is not a felony, it is still a serious criminal offense, especially when various aggravating factors are involved. However, with the help of an experienced and diligent Raleigh DWI defense attorney, you may be able to receive a reduced sentence or plea bargain in North Carolina courts.

Wet Reckless Charges in NC | Raleigh DWI Attorney Dewey P. Brinkley

When reducing an offender’s sentence to a less serious crime, the courts may offer a “wet reckless” charge. A wet reckless charge is, essentially, a reduced plea arrangement where the driver pleads to reckless driving with alcohol involved (hence, the “wet reckless” term). If you’ve been charged with a DWI in the Raleigh and Wake County areas, we at the Law Office of Dewey P. Brinkley will fight for your innocence, but if the evidence is truly stacked against you, we will do everything under North Carolina law for a mitigated sentence.

What is a “Wet Reckless” Charge?

When drinking and driving, the driver is being reckless in his/her actions. A dry reckless charge generally involves excessive speeding or other actions that put other drivers (or the public) at risk. A wet reckless charge, on the other hand, is reckless driving involving alcohol; this charge is more serious than reckless driving but less serious than a DWI charge.

Due to public pressure and strict punishments for driving while intoxicated, prosecutors can be hesitant to offer a plea bargain and a wet reckless charge. In North Carolina courts, however, a wet reckless charge may be an option for first offenders who’s arrest involved several mitigating circumstances, such as:

  • The defendant’s first DWI in North Carolina or any other state
  • The defendant was impaired by alcohol, and not any other substance
  • The defendant’s BAC was 1.0 or under
  • The defendant has a safe driving record
  • The defendant was polite and cooperative with officers

Second Arrest for a DWI in North Carolina

Because a wet reckless charge offers several benefits over a DWI charge, North Carolina courts often include several conditions with the reduced charge. Of course, one condition is to not drink and drive again. If the defendant is arrested again for DWI, then the previous wet reckless charge will count as a prior DWI for sentencing purposes.

Penalties for DWI vs. Penalties for Wet Reckless

DWIs in North Carolina carry fairly severe penalties, even for a first offense. Even a first DWI can carry six months of jail time as well as hefty fines. Furthermore, a DWI stays on the defendant’s criminal record, which could affect current or future job prospects and professional licensing.

As a reduced offense, a wet reckless charge carries several advantages. A wet reckless charge calls for much lighter penalties, and having this charge on your record is certainly less serious. In general, the fines are lower, there is less of a possibility for jail time, and license suspension or revocation is less likely.

Specifically, a DWI is presumptively a Class 1 misdemeanors in North Carolina, while a reckless charge is a Class 2 misdemeanor. Moreover, a DWI puts 12 points on the defendant’s insurance, suspending his/her license for at least a year. A wet reckless is 4 points on the defendant’s insurance and 4 points on his/her license.

Contact the Law Office of Dewey P. Brinkley Today

The chance of achieving a wet reckless charge may be slim, but it’s nonetheless a possibility. If there is overwhelming evidence proving your guilt in a DWI stop, then you and your attorney should consider a wet reckless charge as a possibile option. To speak with the leading Raleigh NC criminal defense and DWI attorney, call our Raleigh law firm today at (919) 832-0307.

New Website Allows DWI Clients To Get An Assessment And Treatment Online

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The NC Department of Health and Human Services has just approved a new way for DWI clients in NC to get assessments and treatment online. The website, www.onlinedwi.com, offers an online assessment, online treatment, and out-of-state reviews for clients who obtained an assessment or treatment in another State. The website is fully licensed by the State of North Carolina. These services are also offered in Spanish.

NC should be applauded for allowing online services for those charged with driving while impaired. For too long, out-of-state defendants needing an assessment and treatment were required to have a licensed NC substance abuse agency review their treatment completion and send in the appropriate documentation to the NC Division of Motor Vehicles. The new website removes those barriers by providing a less cumbersome way to satisfy those requirements.  Continue reading New Website Allows DWI Clients To Get An Assessment And Treatment Online →