DWI Defense FAQs
Hear from the Criminal Defense Attorneys of Dummit Fradin who routinely handle DWI Defense directly as they answer the most common questions people have after they are charged with driving while intoxicated or driving under the influence.
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Criminal Defense Attorney Clarke Dummit explains that in some states they recognize a difference between a DWI and a DUI, but North Carolina isn’t one of those states. In states where they make a distinction, a DWI has a higher standard and is, therefore, a more serious charge. However, in NC, the standards are the same.
For more information on this see our DUI vs. DWI page.
Criminal Defense Attorney Clarke Dummit discusses all the things he wishes his clients to know before being stopped for a DWI to limit the damages. Ideally, everyone stopped would be polite, say nothing incriminating, and ask for an attorney early in the process. Unfortunately, this is rarely the case. Most people cooperate with law enforcement, take field sobriety tests, and give statements. These are voluntary, videoed by body camera, rarely flattering, and then the accused has to deal with them in court. There is a constitutional right not to incriminate oneself, this applies when stopped for a DWI. However, it ceases when the breath room is entered. There is implied consent when it comes to a breathalyzer, not the one given on the street, but the one given in the breath room. If this test is refused, the DMV will take the accused’s license administratively for 1 year, that’s in addition to any criminal consequences for the DWI. So, should you take the breathalyzer? If you’re certain you’re under the limit, yes. However, if you’re over the limit, it depends on whether you’ve got a valid driver’s license and whether you have a prior DWI. And remember, law enforcement could always go get a search warrant for a blood test, which you cannot refuse, and then you would have the administrative revocation and the evidence against you in court. As you can see, DWIs are complex, and no one ever plans on getting one. It’s better to know how the facts apply to your situation. If you have questions about what you should do in the event you’re stopped, give one of our Attorneys a call.
DWI Defense: The Basics About The Charges
Criminal Defense Attorney Clarke Dummit answers 3 of the most commonly asked questions his clients are concerned about after they have been charged with a DWI in North Carolina.
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Is it a felony?
Generally, in North Carolina, a DWI is charged as a misdemeanor. However, if you’re driving while impaired charge involved death or serious injury to another you could be dealing with a felony charge as well. Further, if you’ve accumulated three DWI charges within a 10-year period, you could be facing a habitual DWI charge, which is a felony. So, it depends on the specifics of your case, but more than likely, you’re DWI is a misdemeanor charge.
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Am I going to jail?
Jail time is heavily regulated by statute in our state. The judge must consider many things which may lower or raise your sentence, and grossly aggravating factors that jump you to mandatory jail time. However, even if the statutes do call for mandatory active jail time, we have sentencing alternatives that many judges will consider.
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When can I drive again?
This is, again, dependent upon the specifics of your case. There are 3 different means and durations for license revocation in North Carolina, all of which begin and end at different times:
- A non-criminal civil revocation is done by the magistrate and lasts for 30 days
- Refusing a breathalyzer will cause the DMV to revoke a license for up to a year under an administrative revocation
- When convicted of a DWI the judge will revoke a license on a criminal revocation.
For more information see our limited driving page
If you’ve been charged with a DWI in North Carolina, call one of our DWI Attorneys right away and request a consultation to discuss the specifics of your case.
Criminal Defense Attorney Clarke Dummit relates a past case that illustrates possible jail time for a first-time DWI and how he used mitigating factors to reduce the sentence. Mitigating factors that would affect sentencing include a clean driving record, being stopped for something minor like a tag light instead of a moving violation, and completing an alcohol assessment before court. Even with these mitigating factors, there will still be fines, community service, alcohol classes, license revocation, probation, maybe even a suspended sentence. But it is unlikely unless there are also aggravating factors like children in the car, that there will be jail time for a first-time DWI offense.
Criminal Defense Attorney Clarke Dummit explains the consequences of a DWI.
For a first offense, most people will face a misdemeanor conviction, a 30 to 60 day suspended jail sentence, limited driving privileges for a year, 24 to 48 hours of community service, and somewhere between $300 and $800 in court costs and fines. If there are any aggravating factors, like children in the car, the sentencing will become harsher, but for a first offense with no aggravating factors, this is the most likely scenario.
A second offense within a short period, less than a year, is likely going to be an aggravated level one, or A-1, which is a mandatory one-year prison time. If the second offense is after one year of the first conviction you could be facing vehicle forfeiture and no driving privileges. If the second offense is after three years of the first conviction, then there may be up to a four-year license suspension. A second conviction after seven years drops down to a level 2 and your license is only suspended for one year. So, while the conviction stays on your record forever, the penalties for a second conviction lessen over time.
Criminal Defense Attorney Patrick Apple explains that in North Carolina there is a zero-tolerance policy when it comes to driving and underage consumption of alcohol. This means that even if a person under the age of 21 has a .01 blood alcohol level, they can and will get a DUI or be charged with driving after consuming underage. They are facing the same consequences as a DWI, a loss of license, possible jail time, and a non-expungable criminal record. Fortunately, there are deferred dismissal programs, conditional discharge, and a prayer for judgment continued which might help lessen the consequences to the person’s driving license and criminal record. If you or someone you know has been charged with driving after consuming underage, you need an experienced attorney by your side. Call one of our DWI Defense Attorneys today and consult on the specifics of your case.
DWI Defense: In Court
DWI Attorney Clarke Dummit explains briefly how the experienced Defense Attorneys of Dummit Fradin routinely fight a DWI in court and ensures the State meets its burden of proof. This could look like problems with how law enforcement pulled you over, whether they had reasonable suspicion of criminal activity, whether they did enough field tests to have probable cause for arrest, or even if they violated the health code when administering the breathalyzer. If they did happen to violate the health code, that may be grounds for suppression and the breathalyzer wouldn’t be entered into evidence at all. Going through each piece of evidence and each constitutional argument is essential to successfully fight a DWI in court.
Criminal Defense Attorney Patrick Apple discusses the types of blood draws found in a DWI case, whether or not they can be refused, and how to challenge a blood draw that results in a DWI once it’s been taken. There are three types of blood draws you’ll routinely see in a DWI case, a hospital blood draw, which is usually performed after a wreck and can be refused, a statutory blood draw, which is typically done with permission by a chemical analyst, and therefore can also be refused, but the third is done according to a warrant after there has already been a willful refusal and cannot be again refused. Once the state has a person’s blood they have to be able to show the chain of custody was unbroken, the blood was stored properly, there was no chance of mix-up at the lab, and that it was properly sealed. All these issues and many more need to be raised in a challenge to a blood draw that results in a DWI. If you’ve been charged with a DWI that hinges on a blood test, give Dummit Fradin a call today!
Criminal Defense Attorney Patrick Apple talks about the breathalyzer, why it isn’t reliable, and why if you’re asked to take the test, you are going to need an attorney no matter what you decide to do, submit to the test, or refuse. There are actually two types of breath tests in use, the first is performed on the road with an Alco-Sensor and is not admissible in court, and the second is performed at the county jail or station and is what is referred to as the breathalyzer. The breathalyzer is formally the EC/IR II machine and it doesn’t measure alcohol but rather the byproduct of alcohol in your lungs, ketones. The assumption is that everyone interacting with the machine has the same metabolic rate, which we know is a polite fiction, and yet it is admissible in court. Unfortunately, refusing to submit to the test means a warrant for blood can be obtained based on that refusal as well as an administrative suspension of driving privileges for 1 year. So, if you’ve been charged with a DWI or DUI because of a breathalyzer or refused to take the test and are now facing other consequences, call Dummit Fradin, let us help!
Criminal Defense Attorney Clarke Dummit, who has been fighting DWIs for over 30 years, answers, “Why are DWIs so complicated to fight in court?” In every case, there is a warrantless arrest under the Fourth Amendment. The Fourth Amendment protects you from unreasonable search and seizure, but since a traffic stop isn’t a strenuous hold, the standard is low. However, the arrest is serious, therefore we must make sure they have collected enough evidence in the field to uphold that arrest. So, we need to look at both, whether they had reasonable cause to stop you, and reasonable cause to arrest you. Next is the scientific evidence. This is fairly complex, and the state must be able to get this into the trial. The third complication is the special sentencing factor which is different than any other crime in North Carolina. So, as you can see, DWIs are very complicated. If you’ve been charged, you need to consult with an experienced attorney right away. Call one of our attorneys today!
Many clients want to know, will a DWI be dismissed? This is highly unlikely since a District Attorney would have to file paperwork with the court so that it becomes public record if they are going to dismiss a DWI. Many organizations, like Mothers Against Drunk Driving, watch for these records and make problems for the District Attorneys. So, they rarely simply dismiss a DWI charge. Usually, the matter goes before a judge where there is a move for a dismissal based on suppression or constitutional grounds. Or sometimes, a not guilty plea is entered and there is a trial.
Criminal Defense Attorney Patrick Apple continues his three-part series discussing how to challenge common evidence found in DWI cases by touching on the field sobriety tests. There are only three tests that are recognized by the NHTSA and admissible in court. These are the HGN or the Horizontal Gaze Nystagmus test, the walk and turn test, and the one-leg stand test. The HGN test looks for the involuntary jerking of your eye when an officer puts a stimulus in front of your eyes and moves it back and forth. This should typically be a finger, often in a DWI case, the officer has used a very bright flashlight instead. The walk and turn test and the one-leg stand test are often performed on the side of the road with traffic roaring past. Officers also make up other tests like the counting test and the ABC test, but these are not admissible or recognized as authentic tests. The Officer must say that the person being charged with a DWI performed poorly on the three field sobriety tests, otherwise it will be considered a poor arrest. Their testimony will be used in court, therefore to challenge their account, you should review their body and dash-camera footage to see if the tests were performed to NHTSA standards and under what conditions. If you’ve been charged with a DWI where field sobriety tests were used, call Dummit Fradin today! Let us help!
DWI Defense: Driving Privileges
Criminal Defense Attorney Clarke Dummit explains the 3 types of revocations that could affect your license if you are charged with a DWI in North Carolina as well as interlock devices.
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What kind of revocations am I facing with a DWI?
There is a civil revocation that is imposed by the magistrate and lasts for 30 days. It is non-criminal and will happen if you blow over a 0.08 on a breathalyzer or if you refuse to take one. In the event of a civil revocation, you have 5 days to turn in your license and can then petition the court 10 days later for limited driving privileges. If you do not turn in your license, however, your revocation is extended to 45 days. Also, if you refuse a breath or blood test, there is an administrative revocation imposed by the DMV which lasts for a year. You only have 10 days to ask for a hearing if your license has been administratively suspended by the DMV due to your refusal to submit. You may ask for limited driving privileges after 6 months in this case provided you haven’t refused a test in the last 7 years, the DWI is settled, and any necessary alcohol classes are complete. And if you are convicted, the judge can revoke your license on a criminal basis. This could be anywhere from 1 year to permanent depending on your record. These revocations can overlap or not.
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How will my prior DWI record affect my driving privileges this time?
If this is your first DWI, you are only facing a 1-year revocation and can likely get limited driving privileges within that time. If you have a prior DWI conviction within the last 3 years, you are facing a four-year revocation but may be able to get a conditional restoration hearing at the DMV after 2. If you have 2 prior convictions within the last 7 years, you are looking at a permanent revocation of your license, which simply means you need to go to a conditional restoration hearing to have your license restored.
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What are the ways to get an interlock device requirement?
If you obtain conditional restoration of your license after habitual DWIs, you likely will have an interlock device on your vehicle for 2 to 7 years. There are different ways to have this restriction, if you blew a 0.15 or above on your breath test, you are under an alcohol content restriction or you have conditional restoration of your license. If you happen to get an Interlock violation, you only have 10 days to respond, and depending on why you have the restriction, the administrative details are different. So, it is critical to know why you have the restriction in the first place.
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When can I drive with limited driving privileges?
Limited driving privileges can vary a great deal. There are 2 types, standard and non-standard. Standard hours are 6 A.M. – 8 P.M. Monday – Friday and non-standard hours are after 8 P.M. and on weekends. To obtain non-standard hours, you need a letter from your job and we have to draft something for the judge stating why you need to drive outside of standard hours. However, standard hours can be used for travel to and from work or maintenance of the household.
The DWI Defense Attorneys of Dummit Fradin discuss how to get limited driving privileges as quickly as possible after being charged with a DWI in the triad of North Carolina.
Greensboro
Guilford County Courthouse
201 S. Eugene St.
Greensboro, NC 27401
Also handling cases in Alamance County.
Winston-Salem
Forsyth County Courthouse
Courtroom 1A
200 N Main St.
Winston-Salem, NC 27101
Unless you’re charged in Kernersville.
They have a local Courthouse that handles cases on Wednesday mornings.
Also handling cases in Davidson, Davie, Yadkin, Surry, and Stokes Counties.
Generally, you need 4 things:
- A valid driver’s license at the time of the charge
- A DL 123 insurance form (proof of insurance)
- An alcohol assessment from an approved alcohol agency
- If you have non-standard work hours, we will need a letter on your work letterhead stating such
Then, on the eleventh day after your charge, your Defense Attorney will go to the proper Courthouse (above) and try to get your limited driving privileges order signed by a judge. You do not have to appear for this stage of the process. So, if you’ve been charged with a DWI, don’t wait to call! A good Defense Attorney could have you driving again in a few days! Call one of ours for a consultation today!
Criminal Defense Attorney Clarke Dummit describes what could happen should you be convicted of a DWI and the judge issues you limited driving privileges. Limited driving privileges are issued at the court’s discretion and are only valid for one year, then your full license is restored. The court could set restrictions on the hours, routes, and locations you can drive, but that is up to the court to decide. Therefore, it’s a good idea to retain an experienced DWI attorney to ask for liberal driving privileges.