Here is a list of Ten DWI mistakes that are commonly made by a person charged with DWI in NC. If you find yourself being accused of a DWI or another related charge, this list can help find the right representation for your case. If you plead Guilty you will be found guilty 100% of the time, but if you hire a properly trained, knowledgeable and experienced attorney to represent you at trial, the chances of reaching an acceptable outcome increase drastically.
Mistake #1: Assuming the DWI Case Can’t Be Won
If you talk to an attorney who takes one look at the facts of your case, including a blood alcohol content reading, and immediately begins to talk about pleading guilty, run. Many criminal defense attorneys advertise as DWI Attorneys, but buyer beware. Most do not have the specific training, knowledge and experience to properly defend your case.
Research the lawyer’s qualifications and ask questions relative to his or her training and experience with DWI cases. A DWI conviction can have numerous collateral consequences separate and apart from the associated criminal sanctions. If you’re charged with DWI, take your case seriously and hire a knowledgeable and aggressive attorney who will fight for you.
Mistake #2: Stipulate to the Breath or Blood Alcohol Concentration (BAC)
One common mistake seen among attorneys without the proper training, knowledge and experience is to simply stipulate (which means to agree that the alleged result is perfectly accurate and beyond question) to the “BAC” and then attempt to contest the case on some other grounds. No attorney should ever do this. Not only must the government offer a particular BAC reading in order to prove its case beyond a reasonable doubt, it must prove that the results are accurate, precise and reliable.
To do this, the government must prove that:
- the specimen was collected in an acceptable manner (in compliance with the North Carolina Health Code)
- it was collected by individuals who followed all the proper procedures
- the individual was a Certified Chemical Analyst at the time
- that it was properly handled at all times up until the moment of analysis (so that the Chain of Custody is complete and accurate)
- that the analysis was performed by a qualified person on the proper equipment
The list goes on and on and on. With all that said, if your attorney is planning on stipulating to a particular BAC reading, then you’re making the government’s job of obtaining a conviction exponentially easier.
Mistake # 3: Not Visiting the Scene
Ask the attorney if they are familiar with the area of the stop or accident. If not, ask if they plan on examining the scene for themselves or sending their own private investigator to do so. Examining the scene provides the attorney with the intimate knowledge necessary to confidently question the arresting officer with respect to a wide variety of issues that may be relevant.
In many cases you can go to the scene at the attorney’s request and take photos or video. In some situations, it is best that you take the video and photos yourself, rather than an attorney, so you can authenticate them in court. In addition, photographs and even video of the scene may prove helpful as demonstrative aids to a judge or jury.
Mistake #4: Failing to File a Pre-Trial Motion
Under the rules changes which went into effect in 2007, all motions to suppress in DWI cases must be made pretrial. Because DWI’s almost invariably involve a warrant-less detention, and complex chemical analysis there are many pre-trial motions which could win your case. Even if the motion is unsuccessful in terms of not achieving the stated goals, i.e. suppression, dismissal, etc., the additional testimony serves to further enhance the record which will be used to limit or impeach the testimony of the officer at trial.
Mistake #5: Failing to Question the Validity of the Roadside Tests
Hiring an attorney who isn’t familiar with the phases of DWI Detection as it is taught to police through the International Association of Chiefs of Police (IACP) and the National Highway Traffic Safety Administration (NHTSA) is akin to playing a game without knowing the rules and your opponent does.
There are three (3) Standardized Field Sobriety Tests (SFSTs) and the administration of a Preliminary Breath Test (PBT) device. Each step has a specific protocol that must be followed and the arresting officer almost always deviates from this protocol at some point during the investigation.
Hiring an attorney without the knowledge of these processes will allow mistakes to go unnoticed, and may result in a conviction without the proper evidence or basis to support it. The SFSTs and PBT are all part the investigation, certainly there may be other issues along the way that warrant proper examination as well, if your attorney isn’t familiar with them, they’ll fall by the wayside.
Mistake #6: Trying to Make the Officer Sound Like a Liar
The most effective way to win a DWI is to use the officer’s testimony as 100% true and correct and show a constitutional violation which in turn requires dismissal.
In those instances where you must question the officer’s memory of the situation, it can be much better to highlight inconsistencies or uncertainties contained within his or her testimony rather than attempting to convince a judge or jury that an individual Officer is a habitual liar and never tells the truth. It is a much more successful approach to point out these inconsistencies in a manner that allows the finder of fact to see that the Officer is wrong this time, but isn’t necessarily being intentionally deceitful.
Mistake #7: Testifying on the stand for your own DWI case
Having the accused testify is rarely a good idea. Prior to the Bill of Rights, in the colonies which later became the United States, trials were prosecuted by King’s counsel. There was no Fifth Amendment right to not testify, the accused was in a horrible spot. Either take the stand to testify and be called a liar simply because you are the accused and therefore obviously guilty or do not take the stand and have King’s counsel say that in not testifying you have something to hide and therefore must be guilty.
It was an impossible situation. A true Catch 22. So, our wise forefathers came up with the Fifth Amendment to solve this impossible situation. We should use this gift.
First off, the accused doesn’t have to testify. Why do it? You have no burden. Because of the presumption of innocence and the high burden on the government to actually PROVE its case beyond a reasonable doubt, a trial is not a judgment of the accused motorist and/or a valuation of whether our side, the defense side, is right or wrong; instead, it is always an examination of the Government’s accusations.
Unless it is absolutely necessary to establish some critical fact, to remain seated next to counsel and allow that person to do the talking on your behalf is the only wise decision so as to avoid the King’s counsel dilemma described above.
Mistake #8: Failing to Consult a DWI Attorney
DWI law is complex. The science and technology relating to its application is extremely advanced as well. You have to have a near PhD level of understanding of a broad area of science before you can properly and ethically pick up a DWI case. It takes an enormous amount of training, dedication and experience to properly and successfully defend what appears to be a “garden variety” DWI case.
You wouldn’t go to a general family doctor if you were suffering from a complex illness such as cancer, you’d find a specialist, someone intimately familiar with cancer and perhaps even specifically the type of cancer you’re currently suffering from. The same is true with the law. While DWI defense requires a very specific trained attorney the North Carolina Bar does not recognize it as a specialty. Therefore, you cannot rely on the Bar’s specialty designation, but instead you need to ask many questions and research your DWI attorney carefully.
Mistake #9: Not Using Expert Witnesses
Using the services of an expert witness can be the difference between winning and losing at trial. When dealing with all the intricacies of the reliability of blood or breath testing results, expert testimony routinely makes all the difference in the world. Talk to an attorney who regularly utilizes the services of experts and ask them how and why they’re an invaluable part of the equation.
Mistake #10: Ignoring or not challenging Administrative refusal suspensions.
If the Chemical Analyst marked that you refused a Blood or Breath test you will be facing an “Administrative refusal suspension”. Too many attorneys do not know how to handle the administrative hearings procedures. If you do not act timely and affirmatively request a hearing to challenge the suspension, then you waive the administrative hearing and you automatically lose your privilege to drive. Some attorneys fail to even advise their clients of their right and ability to challenge the refusal.
In many situations the DMV administrative hearing will be your first and best opportunity to cross-examine the Charging Officer and the Chemical Analyst before they have even spoken to the prosecutor about the case and proves to be an immensely valuable “discovery” tool.
You can avoid all of these mistakes simply by hiring an experienced DWI attorney. Contact us now for your initial consultation.