If you blew a .08, and if your lawyer cannot challenge the admission of that into evidence (using the techniques described above regarding Phase I, Phase II, and Phase III), and if your lawyer can’t show that the number you blew was within the margin of error of the breathalyzer machine, then you stand a likelihood of being convicted.

However, most judges require some additional evidence of impairment with a .08 or .09 breathalyzer result. So, if you failed the Field Sobriety Tests, for instance, then that in addition to the .08 or .09 might be enough to convict you.

Note that you do have legal defenses, and your lawyer should look at all of them. But if those defenses do not work, and the test result is admitted into evidence, then the District Attorney has proved what is called “per se” impairment.

“Per se” impairment means that a judge or jury can find you guilty on the BAC number alone of impairment. The DA does not need to prove any other facts regarding your impairment.

If you blew or got a blood test that show you were below .08, then you are not out of the woods. That’s because under North Carolina law, the police officer can offer into evidence other facts that could be used to convict you. For instance, the police officer could point to your driving, your slurring of words, unsteadiness on your feet, your admission of how much you had to drink, etc. etc. to show that you were impaired, even if the breathlyzer machine revealed a result lower than .08.

This is called “common law” proof of impairment. It’s the old way – before the introduction of breathalyzer machines – of showing the driver was impaired, and it is still frequently used where the police don’t have a result at all or don’t have a result showing a breathalyzer of .08 or above.

When your breathalyzer result or blood test result is below a .08, your attorney may wish to have that fact introduced into evidence to prove that you were not impaired. You want to talk to your DWI lawyer about this so you can understand his strategy.

Attorney Damon Chetson is a criminal lawyer Raleigh who helps people charged with serious felonies, misdemeanors, and DWI/DUI charges in state and federal courts in North Carolina. He can be reached day or night at (919) 352-9411.

Your attorney will probably recommend that you take a Substance Abuse Assessment.

In order to get a Substance Abuse Assessment, you will need to set up an appointment with a qualified agency – usually a private treatment center. You will a private, one-on-one session with a counselor for about 40 minutes. The counselor will ask you a variety of questions about your use of alcohol or drugs. At the end of the session, the counselor will write-up an assessment which he will send to you or to your attorney.

See Appendix [X] for a list of Substance Abuse centers in the Raleigh, NC area and Wake County.

Your substance abuse assessment is valid for one year. It will recommend at least some form of treatment. At the lowest end, the assessment might recommend Alcohol and Driver Education classes. Or Out-Patient Treatment involving your attendance at 20 or 30 hours of evening or weekend classes. A the upper end, the assessment might recommend In-Patient Treatment for serious cases.

An assessment is required in order to request Limited Driving Privileges (LDP).

But, more importantly, getting a Substance Abuse Assessment and completing the recommended treatment program is the one and only thing you can do, following your DWI arrest, to help reduce the sentence that the judge will impose if you are convicted.

For that reason, most Raleigh DWI lawyers will recommend that you get the assessment (for your LDP) and, if necessary, perform treatment. Discuss this issue with your attorney before getting an assessment, and beginning treatment.

A Substance Abuse Assessment will cost $100. Treatment costs vary, but can range from about $400 for 20 hours of Out-Patient Treatment to about $800 for 40 hours of Out-Patient Treatment. In-Patient Treatment is more expensive.

Attorney Damon Chetson is a criminal lawyer Raleigh who helps people charged with serious felonies, misdemeanors, and DWI/DUI charges in state and federal courts in North Carolina. He can be reached day or night at (919) 352-9411.

If the officer did not find enough evidence to arrest you, the officer can let you go, maybe with a warning.

But if the officer does think he has enough evidence that you’ve committed a DWI, the officer can arrest you. At this point, you will be handcuffed and placed into the officer’s car.

The officer will take you to the police station, the Public Safety Center in downtown Raleigh, or to a mobile DWI vehicle where you will be processed, asked to blow into a “breathalyzer,” and, hopefully, released on a “written promise to appear.”

If the officer wants to ask you any questions during this period, since you are in custody, you must be “Mirandized” or informed of your rights to an attorney and your right to remain silent.

The “Miranda” rule usually does not play a role in DWI cases, but many clients ask about out.

In most DWI cases, the officer will not Mirandize you because the officer does not want to ask you any questions. That’s fine, and your rights have not been violated. The only time the officer is required to “read you your rights” is when he wishes to ask you questions and you are in custody.

In addition, if you make any “spontaneous utterances” or admissions on your own, without being asked questions, those are admissible in court even if you haven’t been “Mirandized.”

Once you get to the police station, jail, or mobile DWI unit, you will be processed and breathalyzed. It’s important for you to not make any statements during this process. These might be used against you.

The police officer will try to have you breathalyzed as soon after your arrest as possible. This is because the longer he waits, the less likely the breathalyzer machine will show a reading that reflects your blood alcohol concentration (BAC) at the time you were driving.

Pay attention to who is watching you, and if at any point you are left unobserved, remember those facts so you can later tell your DWI lawyer. Instances when you are left alone could be valuable to your case, showing that the police did not exercise proper procedure when the breathalyzed you.

Attorney Damon Chetson is a criminal lawyer Raleigh who helps people charged with serious felonies, misdemeanors, and DWI/DUI charges in state and federal courts in North Carolina. He can be reached day or night at (919) 352-9411.

Phase III is the final phase before the officer arrests the driver on a DWI.

The main focus during Phase 3 is on the driver’s performance on the Standardized Field Sobriety Tests (SFSTs). During this Phase the officer might also ask the driver to blow into a Portable Breath Test (PBT, or hand-held breathalyzer) to determine the presence of alcohol. The PBT should only be used to support the SFST; it should not be used in place of SFSTs.

In North Carolina, the results of a PBT are not admissible at trial (but they are admissible at pre-trial hearings).

The SFSTs not only determine impairment but also whether the driver can perform divided attention tasks. The only three SFSTs validated by the National Highway Traffic Safety Administration (NHTSA) are the (1) Walk-and-Turn; (2) One-Leg-Stand; and (3) Horizontal Gaze Nystagmus. See Appendix [X] for more on the SFST.

After the driver has performed the SFSTs, the officer will make a decision about whether the driver is drunk. The officer should use the totality upon the totality of the evidence developed during all three Phases of DWI detection.

An officer who conducts just one or just two of the three tests has not completed the SFST in accordance with the National Highway Traffic Safety Administration’s recommended procedures.

Many police officers in North Carolina do not perform the SFST correctly. A top Raleigh DWI lawyer will be able to evaluate whether the tests were completed properly, and if they were, whether the results showed that the driver was impaired.

Your best chance for beating your DWI lies in hiring a lawyer who will look at the entirety of officer’s behavior during Phase III to make sure that all procedures were followed.

Why is Phase III so important? It’s important because the officer must develop enough evidence – “probable cause” – that the driver has committed the crime of DWI in order to handcuff and arrest the driver.

If the officer leaped to the conclusion that the driver had committed a DWI without developing enough evidence, the officer has violated the driver’s rights. In that case, the driver will end up beating the case, provided a Judge agrees that the officer violated his rights.

If the officer believes he has probable cause, he will arrest. Note that just because an officer believes he has probable cause does not mean he’s correct.

A judge will always review the officer’s decision to make sure that he did have probable cause. If the judge believes the officer made a mistake, and was too hasty in arresting the driver, the judge can throw out the rest of the evidence collected, and throw out the DWI case.

Attorney Damon Chetson is a criminal lawyer Raleigh who helps people charged with serious felonies, misdemeanors, and DWI/DUI charges in state and federal courts in North Carolina. He can be reached day or night at (919) 352-9411.

The next step in a DWI arrest is Phase II: Personal Contact. During this Phase, the police officer will approach the car, and observe the driver, the driver’s car, and any of the driver’s actions which might show that the driver has been drinking.

For instance, the officer will look for such things as:

• bloodshot eyes,
• fumbling with the driver’s license,
• difficulty finding the insurance card,
• dirty or disheveled clothing,
• and alcoholic beverages in the vehicle.

The officer will be listening for slurred speech, and admissions of drinking or drug use, inconsistent answers and abusive language or whether the motorist asks the officer to repeat questions.

Other signs the officer is looking for during Phase 2 are the odor of cover-up scents such as mints, mouthwash, perfume or cologne.

While the officer will usually point out some facts that suggest the driver was drunk, in most cases there are dozens of signs of intoxication that the officer does not point out.

A top DWI lawyer in Raleigh will point all of the clues that the police officer did not point out.

The key to this Phase of the arrest is figuring out whether the police officer detained the driver too long. If, for instance, the officer stopped the car because the driver was speeding, and the officer keeps the driver for an excessive period of time in order to see whether the driver has been drinking, the officer may have violated the driver’s constitutional rights.

That’s because the police officer, when stopping a car on reasonable suspicion or because the driver was speeding, weaving, or had headlights out, is only allowed to keep the driver so long as it takes to issue a citation or develop additional facts of a DWI.

An officer who keeps the driver stopped for too long may have violated the driver’s rights. A Judge, seeing such facts, will probably throw out the DWI case because the driver’s rights were violated.

Attorney Damon Chetson is a criminal lawyer Raleigh who helps people charged with serious felonies, misdemeanors, and DWI/DUI charges in state and federal courts in North Carolina. He can be reached day or night at (919) 352-9411.

An officer’s first job is to watch the moving car to note any initial cues of a possible DWI violation. At this point, the officer must decide whether there is enough reason to stop the car.

If the officer has a “reasonable articulable suspicion” that the driver is impaired, he can stop the car. Or if the officer sees the driver committing a traffic or criminal violation – broken headlight, running a red light, speeding, etc. – the officer can stop the car to issue a citation for the offense.

At this point, the officer is not required to arrest the driver for a DWI based on this initial observation. Instead, the officer should try to gather all evidence that may suggest a DWI.

For instance, the officer may see the way the driver responds to the officer’s signal to stop, and note any other evidence of a DWl violation, including:

• unusual driving actions
• weaving within a lane,
• moving at slower than normal speed,
• evidence that the driver is drinking while driving.

Based on these initial observations of the moving car, the officer must decide whether there is “reasonable articulable suspicion” to stop the vehicle.

At this point the officer has three choices:

• stop the vehicle,
• continue to observe the vehicle,
• or disregard the vehicle.

A top DWI lawyer will examine the officer’s behavior during Phase I carefully to figure out whether the police officer jumped to a conclusion without forming a “reasonable articulable suspicion.”

“Reasonable articulable suspicion” (RAS) or “reasonable suspicion” has a specific legal meaning. It is a standard that requires the officer to development enough specific facts so that a reasonable officer in the officer’s situation would have had suspicion to believe a crime was afoot.

An officer can’t simply say that he had a “hunch” that the driver was committing a DWI. The officer must give specific facts that caused him to have the suspicion that driver was committing a DWI.

Your defense lawyer should look at carefully at each reason cited by the officer to see whether it makes sense. And your lawyer should see whether there is other evidence that contradicts the officer’s “facts.”

For instance, if the officer followed the car for just a block before stopping the driver, the officer’s claim that he observed the car weaving in and out of traffic may not be credible. The officer may not have had time to watch the car to tell whether it was really weaving, or whether the driver was trying to avoid animal in the road.

In the United States and North Carolina, police officers cannot simply stop cars absent a valid, legal reason.

If the officer did not have reasonable suspicion before stopping the vehicle, the officer may have conducted an invalid stop.

If the officer conducted an invalid stop, a judge, hearing those facts, is likely to throw the DWI case because the officer violated the driver’s constitutional rights under the Fourth Amendment and North Carolina’s Constitution.

Attorney Damon Chetson is a criminal lawyer Raleigh who helps people charged with serious felonies, misdemeanors, and DWI/DUI charges in state and federal courts in North Carolina. He can be reached day or night at (919) 352-9411.