Gaston County DWI/DUI Checkpoints- A St. Patrick's Day Celebration

For those of you who celebrate the Irish and are looking forward to St Patrick's Day- celebrate with caution in Mecklenburg and Gaston County. According to the Charlotte Observer, the Gaston County Police Department is in the middle of an eight day crackdown of DWI/DUI drivers and unlicensed drivers in Gaston County. The checkpoints started Friday night and will continue through the week.

As a former prosecutor and now criminal defense attorney in North Carolina, I can unequivocally state that having a designated driver or a cab company's phone number programmed into your cell phone is the best option. Do not depend on the luck of the Irish to get you home this week. The cab fare of $50 may seem a bit steep at the time, but the costs of a DWI are much higher. If you go the designated driver route, some bars such as Freeman's Pub on main street in Gastonia are offering free appetizers and non alcoholic drinks to designated drivers.

Driving Impaired In North Carolina- Police Need to Check the Right Box!

The North Carolina Court of Appeals recently issued a case, Lee v. Gore, that affects driving impaired/ driving under the influence (DWI/DUI) cases in North Carolina. Simply stated, when a person is issued a North Carolina Drivers License, the person essentially agrees to submit to a breath or blood test if a police officer believes you are impaired. If you refuse, your license can be automatically suspended by the NC DMV for 12 months. However, the police officer or the person who administered the blood/breath test must correctly fill out an affidavit stating that the implied consent procedures were correctly administered. In a refusal case, one in which the police alleges that the person refused to supply a sample, this affidavit contains additional information. In the Lee v. Gore case, the police officer failed to check the box that stated the driver willfully refused to submit to a chemical analysis. The NC Court of Appeals ruled that the language of the law required the affidavit to be filled out correctly and, in Lee v. Gore, the North Carolina DMV had no basis to revoke the persons drivers license for 12 months when the form was not filled out correctly.

The UNC School of Government wrote an interesting post on this today. They have a daily blog on legal issues that many North Carolina criminal defense attorneys follow. It also provides another example on how technical driving while impaired cases are in North Carolina. After arrested for a DUI, many feel there is no chance of success, especially in cases where there is a high blood alcohol reading. However, a good DWI lawyer in North Carolina looks at every issue- the complex, and in some cases, as straight forward as failure to check a box. So, if Driving Impaired in North Carolina, Police need to check the Right Box!

Getting Your License Back After DWI Conviction

My previous post addressed how to get a valid license when you have a DUI/DWI case pending. Now, assume you have pled guilty or were convicted of the DWI. A common question I receive is how do you go about getting your license back after a DWI conviction.

A limited driving privilege is available to most after conviction. Usually, a person's license will be suspended for 1 year after the date of conviction. If a person meets certain eligibility requirements, a limited privilege can be obtained from the courts. First, the driver must hold a valid license or had a license that was expired for less than one year at the time the DWI occurred. Second, the driver must not have any previous DWI convictions in the last seven years and not have any other DWI cases pending in the court system. Third, the driver must of received a level three, four, or five punishment from the judge. Finally, the driver must have valid insurance and filed a substance abuse assessment with the court.

Generally speaking, if granted, the driver will be allowed to drive to and from his/her place of employment, school, court ordered drug treatment programs, court ordered community service, emergency medical care and tasks related to the maintenance of his/her household.

A driver can apply for this privilege at the time of sentencing. However, if the driver was a .15 or above, the license will not be effective until 45 days after sentencing and the driver will only be allowed to drive to and from work, school, court ordered substance abuse programs, and the interlock service facility. North Carolina law will also require an ignition interlock device on the vehicle the driver operates.

The law that addresses this is GS 20-179.3. If you print this statute from your computer, it will be approximately 6 pages of single space information. It is full of exceptions, clauses, and confusing legal terminology.  Again, the punishment for driving on a suspended or revoked license is very severe. Every case is unique and different exceptions might apply making a person ineligible for the privilege. Court documents must be correctly filled out. Talk to an attorney before you get in a car and drive anywhere. Talk to an attorney before you go to the courthouse and try to do this yourself.

DWI- North Carolina's Pre Trial Limited Driving Privilege

You have been arrested for Driving While Intoxicated. The police officer took your drivers license. You now have a criminal case pending for DWI. Can you drive while your case is pending in the court system?  Under North Carolina law, a person arrested for DWI can apply for North Carolina's pretrial limited driving privilege.

A police officer will automatically take a person's license for a minimum of thirty days when they arrest and charge a person for DWI. For the first 10 days after arrest, the person is not allowed to drive. Generally speaking, after the 10th day, the person can file a motion with the court asking for a limited driving privilege for the remaining 20 days. Certain requirements must be met; at the time of the alleged offense, the person must have had a valid drivers license or have a license expired for less than 1 year, they cannot have any other DWI cases pending, and they must obtain a substance abuse assessment from a court approved program. A substance abuse assessment requires the person to go to a court approved provider and complete an interview with a counselor regarding their alcohol/drug use. If all criteria are met, the person must also present to the court a certified DMV Driving Record, a DL-123 proof of liability insurance, the substance abuse assessment, several copies of the court mandated limited driving privilege form, and, of course, a $100 civil filing fee. The judge will most likely grant the request and the person can drive for the remaining 20 days of the revocation.

After 30 days, the revocation period ends. At this point, the person can go to the courthouse and get their hard license back. In some counties, there will be an additional filing fee. In Mecklenburg County, the drivers license should be in the court file, called the shuck. Occasionally, however, the license is not there, somehow lost in the arrest and booking procedure. Or, the license will be stapled multiple times to different papers to a point of mutilation. In both cases, a person will have to go to the DMV and get a duplicate.

Once the 30 day revocation is over, assuming the license was valid before the offense, a person can legally drive once they have paid the revocation fee and obtained their license . Sometimes it is hard to understand how a person goes from being restricted from driving to being able to drive within 30 days after arrest; North Carolina statute states that if an officer has reasonable grounds to believe a person has violated an implied consent offense, a DWI, the officer is required to submit a revocation report to the court. However, once the revocation period ends, a person can legally drive because they have not been convicted of any offense. The person has only been accused and in our system a person is innocent until proven guilty. So while the case is pending, the person can drive.

If you are eventually convicted of the offense, your license will be revoked. More on this in the next post.

Warning- the punishment for driving on a revoked license when you have a DWI offense is very severe. A person does not want to face this charge. If a person is unsure if their license is suspended or revoked, I always recommend speaking to an attorney. Do not drive if your license is revoked.