Attorneys at our Firm
You cannot reason with the unreasonable,
When it is time to fight, WE FIGHT TO WIN.

DWI Arrests and the Important Role of Magistrates

Once a person suspected of DWI has been arrested, he or she must be taken "without unnecessary delay before a magistrate." N.C. Gen. Stat. § 15A-511(a)(1). By law, the magistrate must do the following: (1) Inform the person of the charges against him or her; (2) Inform the person of one's right to communicate with counsel and friends; and (3) Inform the person of "[t]he general circumstances under which he may secure release. N.C. Gen. Stat. § 15A-511(b).

As noted above, most DWI arrests are made without a warrant. In cases in which an arrest is made without a warrant, when appearing before the magistrate, the "magistrate must determine whether there is probable cause to believe that a crime has been committed and that the person arrested committed it." If the magistrate determines that the officer did not have probable cause to arrest a person, then the person must be released. If the magistrate determines that the officer did have probable cause to make an arrest, the magistrate must issue an order containing a statement of the crime of which a person is accused or containing a finding that probable cause supported the person's arrest.

Once a person has been arrested and a magistrate has found probable cause to support the arrest, the magistrate must either release the person after the person makes a written promise to appear at one's court date or release the person upon the execution of an unsecured appearance bond. The magistrate may also place the person in the custody of a designated person or organization agreeing to supervise him-namely a so-called "bondsman," or may require the execution of an appearance bond secured by a cash, by a mortgage, or by a surety. N.C. Gen. Stat. § 15A-534(a). A surety, in common parlance, is a "cosigner."

A magistrate can only require a cash bond if releasing a person "will not reasonably assure" one's court appearance or "will pose a danger of injury to any person; or [would] likely to result in destruction of evidence, subornation of perjury, or intimidation of potential witnesses." N.C. Gen. Stat. § 15A-534(b).

When a magistrate sets the conditions of a person's pretrial release, the magistrate must, by law, "take into account the nature and circumstances of the offense charged; the weight of the evidence against the person; the person's family ties, employment, financial resources, character, and mental condition; whether the person is intoxicated to such a degree that he or she would be endangered by being released without supervision; the length of one's residence in the community; one's record of convictions; one's history of flight to avoid prosecution or failure to appear at court proceedings, if any; and any other evidence relevant to the issue of pretrial release." N.C. Gen. Stat. § 15A-534(c).

When the magistrate makes a decision regarding the conditions of pretrial release, he or she "must issue an appropriate order containing a statement of the conditions imposed." In addition, the magistrate must inform the person in writing of the penalties applicable to violations of the conditions of his release, advise him or her that one's arrest will be ordered immediately upon any violation of the conditions of release, and the magistrate must file the order of release with the clerk of court and provide a copy to the arrested person. N.C. Gen. Stat. § 15A-534(d).

If a person arrested for DWI appears to the magistrate to be so impaired that he or she would present a danger to oneself or others if released, then the magistrate must order that the person be held in custody until one no longer represents a danger to oneself or others or until one is released to a sober, responsible adult. A person charged with DWI cannot be held longer than 24 hours. If a person is detained for 24 hours, a magistrate or judge, by law, "must immediately determine the appropriate conditions of pretrial release."

The steps that law-enforcement officials are bound by law to follow when arresting a person for DWI are important. At every stage, these critical processes must be followed, or else the DWI charge itself may be subject to dismissal.

If you have been charged with DWI and suspect that the manner of your arrest or processing irreparably damaged your ability to defend against the charge, you should call Arnold & Smith, PLLC today at (704) 370-2828. Our team of aggressive DWI defense attorneys are in courtrooms across the Charlotte region nearly every day fighting on behalf of persons accused of DWI. We want to help you. Contact us now.