To Do Or Not To Do?

The best thing you can do if you have been pulled over for driving while impaired (DWI) or for driving while under the influence of alcohol (DUI) is to contact, as soon as possible, one of the experienced criminal defense attorneys at Arnold & Smith, PLLC.  Our attorneys are fighting on behalf of drivers charged with DWI or DUI nearly every day in courtrooms across North Carolina. Give one of our experienced defense attorneys a call today to set up an appointment. 

I've been pulled over. What do I do?

The best thing you can do if you have been pulled over by a law enforcement officer is to stay calm and to be polite and cooperative, but also to understand and, if necessary, invoke the many Constitutional rights you enjoy as a citizen or person residing in the United States.

Do I have to perform field sobriety tests?

A driver cannot be forced to perform field sobriety tests. However, it is crucial that every driver understands that he or she may face legal consequences for refusing to perform field sobriety tests, as discussed in the paragraphs below.

First of all we must consider why does an officer want you to perform field sobriety tests? It should not be assumed that the law-enforcement officer had reasonable suspicion to pull you over. Video or other evidence may reveal that the officer lacked reasonable suspicion to effect a traffic stop in your case. This could lead to suppression of evidence and dismissal of the charges against you. If you have been pulled over because a law-enforcement officer observed you swerving in and out of lanes, speeding or driving recklessly, driving too slowly for conditions or driving erratically, these may all be objective signs of impairment, and when an officer spots these signs, he or she has a duty to pull you over to investigate whether you are driving while impaired.

Many law-enforcement officers have cameras in their vehicles. Through video recorded by these cameras, many people charged with DWI may have the ability to examine whether, from the viewpoint of a reasonable, objective law-enforcement officer, one’s driving may have indicated impairment. Cameras do not lie, but in the absence of a camera, a court will generally accept the sworn testimony of a law-enforcement officer unless a defendant or attorney can demonstrate through other evidence or cross-examination that the testimony is false or mistaken.

So in other words, if an officer says he or she pulled you over for speeding or crossing over the centerline, unless you can prove affirmatively that you were not speeding or did not cross the centerline, his or her testimony is going to be given great deference.

What is an officer looking for if I am pulled over for DWI?

Officers look for common, telltale signs of impairment. One of these telltale signs is red, bloodshot or “glazed-over” eyes. If you have been pulled over for speeding or driving carelessly or recklessly and you exhibit red, bloodshot, or “glazed-over” eyes, an officer may cite this—among other factors—as supporting his or her determination that probable cause existed to believe you were driving while impaired.

Another telltale sign of impairment is slurred speech. It is very important, when responding to a law-enforcement officer, that you articulate your words clearly. Again, be respectful, be polite, but also be firm. If an officer seeks to badger you or becomes argumentative, do not engage in argument and do not allow your emotions to get the best of you. Simply decline further conversation and tell the officer that unless you are free to leave, you are invoking your right to remain silent.

When an officer suspects you are driving while impaired, he or she will study everything you do, from the way you pull your vehicle off the road to the manner in which you bring your vehicle to a stop, to the way you retrieve your driver’s license and the vehicle registration and any other actions you may take. It is important, throughout your contact with any law-enforcement officer, to remain calm, treat the officer with deference and respect, to understand your rights and to calmly but firmly ensure that those rights are respected.

Does “implied-consent” apply to field sobriety tests?

With respect to field sobriety tests, under North Carolina law, any person who drives a vehicle on a highway or public vehicular area gives consent to a chemical analysis if charged with an implied-consent offense. If a law-enforcement officer has “reasonable grounds” to believe you have committed an implied-consent offense, he or she may obtain a chemical analysis of you. The statute defines an “implied-consent offense” as the offense of impaired driving and other impairment-related offenses.

The same statute—N.C. Gen. Stat. § 20-16.2—that grants unto law-enforcement officers the authority to administer a chemical analysis of a driver’s breath also requires that a law-enforcement officer inform you that you have the right to refuse a test. If you refuse a test, your driver’s license will be revoked for a year and could be revoked for longer, depending on the circumstances. The statute also provides that an officer can compel you to be tested “under other laws.” Law-enforcement officers often use the threat of license revocation to coerce drivers into performing a breath test that they are hesitant to perform and which may result in evidence being created for use against them in a criminal case. You should be aware that even if your license is revoked, you have the ability—through an attorney—to request a hearing on a license revocation premised upon your refusal to submit to a breath test. An attorney can assist you in staying a license revocation or suspension until a separate hearing can be held on whether suspension or revocation is appropriate in your case. You should know, however, that the timeframe within which you must request this hearing in order to stay immediate revocation is very specific. The best thing you can do if you are facing license revocation on the basis of your refusal to submit to a breath test is contact an experienced DWI defense attorney as early on in your case as possible.

What happens if I refuse to perform a field sobriety test?

N.C. Gen. Stat. § 20-139.1 contains numerous provisions related to the admission of evidence in DWI cases. In addition to the provisions in the implied-consent statutes relating to analyses of drivers’ breath and blood, N.C. Gen. Stat. § 20-139.1(f) provides that if a person refuses to perform field sobriety tests at the request of an officer, evidence of that refusal is admissible in any criminal, civil, or administrative action against the person.

In general, the heart of any DWI case is the chemical analysis of a person’s breath or blood, or a person’s refusal to submit to such testing. Field sobriety tests are used to bolster an officer’s case that a person was driving while impaired. There is simply no good reason to agree to perform field sobriety tests, and the only consequence of your refusal to perform them will be that an officer may later testify that you refused to perform the tests.

If the Intoxilyzer gives a reading of .08 or higher is conviction all but guaranteed?

Many people believe that the only important part of a DWI case is the blood or breath test result, but these are only data points included in a rather complicated legal process which includes many other required steps and safeguards that must be carefully considered. For example you should keep in mind that in order for an officer to even obtain a breath or blood sample, you must first be placed under arrest. Officers must have probable cause to arrest you. Even getting to the point at which an officer may rightfully demand the submission of breath or blood involves complicated legal doctrines and principles.

The experienced attorneys at Arnold & Smith, PLLC can evaluate your case by reviewing the officer’s video, consulting with witnesses to determine if officers had probable cause to arrest you, and examining the unique circumstances of your case to bolster and assert your defenses.

Continue reading: Field Sobriety Tests - Types Of Field Sobriety Tests