Fayetteville DWI Lawyer

WHAT IS REASONABLE SUSPICION?

The first critical element to examine when someone is charged with Driving While Impaired in North Carolina revolves around the concept of reasonable suspicion. The United Sates and North Carolina Constitutions require that law enforcement officers have a reasonable suspicion of criminal activity to justify a traffic stop. In the case of a DWI, this could be erratic driving, violating traffic laws, or other visible signs of impaired driving.

However, there are instances when law enforcement do not meet their requirement for reasonable suspicion when a stop is performed. As your attorney, one of my key strategies will be to carefully examine the circumstances surrounding your traffic stop, and if I find reason that the stop was

initiated without sufficient reasonable suspicion, we can challenge the stop’s legality in court. In turn, such a maneuver could lead to suppression of key evidence for the prosecutor and even dismissal of your DWI charges.

Successful challenges to the lack of reasonable suspicion require an in-depth understanding of North Carolina law and court precedents. Having litigated numerous DWI cases in counties throughout the eastern half of the state, I know to always work to spot potential flaws for law enforcement’s supposed reasonable suspicion. I do this by examining the initial reasoning asserted by law enforcement for traffic stop. I will vigorously review the evidence at hand and apply the law to review and question every aspect of the traffic stop and subsequent arrest procedure to ensure your rights were not violated.

There’s no one-size-fits-all approach when it comes to DWI cases, and questioning the existence of reasonable suspicion is just one of the strategies I employ to protect your rights and work towards a favorable resolution. At Gary Britt Law, my commitment is to leave no stone unturned in your defense.

WHAT ABOUT PROBABLE CAUSE?

In addition to reasonable suspicion, another crucial aspect of DWI cases in North Carolina is the concept of probable cause. Once a law enforcement officer has stopped your vehicle based on reasonable suspicion of impaired driving, the officer must then establish probable cause to justify a DWI arrest. This could involve observing further signs of impairment, such as the smell of alcohol, slurred speech, failed field sobriety tests, or a positive breathalyzer test.

However, the process of establishing or showing probable cause is not always as straightforward as it might seem for law enforcement and the prosecutor. Mistakes can be made, and though we are blessed with many officers who are true public servants seeking to protect and serve out of selfless desire, even the best law enforcement officers are still human, which means that mistakes can and will be made and boundaries can be overstepped, unintentionally or not.

As an experienced DWI attorney and dedicated advocate, part of my role is to evaluate whether probable cause was indeed present in your arrest. I will meticulously scrutinize every detail leading up to your arrest. Some – and there can be many others depending on the situation – of the many questions I investigate would be:

• Were the field sobriety tests administered correctly?
• Was the breathalyzer equipment properly maintained and calibrated?
• Was the officer properly trained to conduct these tests?
• Were you exhibiting the behavior or symptoms that was claimed or is there proof to the contrary?
• Did the officer follow all regulations regarding the timing of breathalyzer tests?
• What does law enforcement’s dash cam and body cam footage show?

If there are discrepancies in any area relevant to probable cause for a DWI arrest, we can challenge the validity of the probable cause, which could result in the dismissal of your case.

By leveraging my years of experience and knowledge of the law, I aim to protect my client’s constitutionally protected rights by identifying and challenging any shortcomings, especially with probably cause. At Gary Britt Law, my commitment to achieving the best possible outcome for

your case means that I will thoroughly challenge all aspects of the probable cause determination in your arrest.

With the high stakes of a DWI charge in North Carolina, you deserve a robust and detailed defense. At Gary Britt Law, I will work with you to start exploring the strategies that can help secure a favorable resolution for your case from our very fist consultation.

WHAT ABOUT TRAFFIC CHECK POINTS?

Many people assume that if they are charged with a DWI at a checkpoint there is no way to challenge the charge in court. That is not true. At Gary Britt Law, I committed to ensuring clients are informed of their rights when a traffic checkpoint is involved. Traffic checkpoints are governed by specific guidelines:

• Random Selection is Key: Law enforcement must perform stops randomly to prevent accusations of racial or criminal profiling. It’s either every car gets stopped, or the officers must adhere to a specific pattern, such as stopping every fifth or tenth vehicle.
• Checkpoint Policy: North Carolina law requires that checkpoints be conducted pursuant to written policy limiting officers’ discretion on which vehicles to stop at the checkpoint.
• Clear Purpose for the Checkpoint: There should be a clear reason articulated for the checkpoint, and North Carolina law allows checkpoints for ensuring compliance with specific laws such as the Driving While Impaired law.
• Transparency on Location: North Carolina mandates that traffic checkpoints’ locations be announced, but in North Carolina this does not mean that the locations must be announced to the public before the checkpoint begins. North Carolina law has found that a law enforcement vehicle with blue lights in visible operation to those driving on the roadway counts as sufficient notification of the checkpoint’s location.
• Length of Checkpoint Stop: These stops are required to be brief, and if the officer does not have reasonable suspicion of a violation of the law by the driver, the officer must allow the stopped driver to depart as soon as the officer completes check of the driver’s license, sobriety screening, or other actions required by the checkpoint’s purpose.

Also, although the primary focus may not on other crimes, officers can issue citations for other violations they witness. For instance, discovering someone is driving without a license during a routine checkpoint stop can lead to a charge for driving without a license.

If law enforcement does not follow the legal guidelines governing traffic checkpoints, the evidence obtained from a traffic checkpoint stop may be suppressed and your case could even be dismissed. So, it is important to come to Gary Britt Law and have an attorney who ensure your rights are protected.

IS IT EVEN POSSIBLE TO WIN AT TRIAL AFTER BEING CHARGED WITH DWI?

Facing a DWI trial in North Carolina can be an overwhelming experience, but having an experienced attorney by your side can make all the difference. To convict you of Driving While Impaired, the state must prove the following beyond a reasonable doubt: (1) that you were driving, (2) on a public vehicular area, and (3) were impaired at the time. A failure to establish any of these elements could prevent a conviction.

At Gary Britt Law, my approach is to construct a detailed defense strategy that rigorously questions whether the state has sufficiently met its burden of proof.

First, there is the question of driving, and it is on the state to show you were driving the vehicle. Was the vehicle in motion? Were you in control of the vehicle at the time? Were you even driving? Where were the keys located if the car was parked when law enforcement arrived? Did law enforcement check to see if the engine was warm. Did anyone see you driving? Can law enforcement even prove you were driving and not someone else? Eyewitness testimony, police reports, and any available surveillance footage can all play a part in determining the answers, and the timing of law enforcement’s arrival or the arrival/presence of other witnesses can be crucial.

The state’s prosecutor must also prove that the location where the alleged impaired driving took place qualifies as a “public vehicular area” under North Carolina law. If you were on private property or a non-public area, the prosecutor may not be able to prove that you were driving on a public vehicular area for the purposes of convicting you for a DWI, thus leading to a dismissal or being found not guilty / acquitted.

Finally, the state’s job of proving impairment is not as easy as it sounds and can be tricky. The evidence (such as testimony and/or the results of breathalyzer or blood tests) is not always cut and dry. There are many variables and potential issues that can impact the validity – and even admissibility – of evidence.

By systematically challenging each of these areas, I aim to cast reasonable doubt on the state’s case against you. My years of experience and knowledge of North Carolina DWI law allow me to uncover weaknesses in the prosecution’s case and argue convincingly on your behalf.

Always remember that like any other criminal charge, a DWI charge does not automatically equate to a conviction. You can work with Gary Britt Law to build a robust defense that targets the state’s burden of proof.

WHAT FACTORS DETERMINE THE SENTENCE IF I AM FOUND GUILTY OF DWI?

In North Carolina, the court considers a range of factors when determining sentencing for a DWI conviction. These factors are classified into three categories: mitigating, aggravating, and grossly aggravating. Mitigating factors can potentially lessen the severity of your sentence. These include:

1. Slight impairment of the defendant’s faculties resulting solely from alcohol, and an alcohol concentration that did not exceed 0.09 at any relevant time after the driving;
2. Slight impairment of the defendant’s faculties, resulting solely from alcohol, with no chemical analysis having been available to the defendant;
3. Driving at the time of the offense that was safe and lawful except for the impairment of the defendant’s faculties;
4. A safe driving record, with the defendant’s having no conviction for any motor vehicle offense for which at least four points are assigned or for which the person’s license is subject to revocation within five years of the date of the offense for which the defendant is being sentenced;
5. Impairment of the defendant’s faculties caused primarily by a lawfully prescribed drug for an existing medical condition, and the amount of the drug taken was within the prescribed dosage;
6. The defendant’s voluntary submission to a mental health facility for assessment after being charged with the impaired driving offense for which the defendant is being sentenced, and, if recommended by the facility, voluntary participation in the recommended treatment; and
7. Completion of a substance abuse assessment, compliance with its recommendations, and simultaneously maintaining 60 days of continuous abstinence from alcohol consumption, as proven by a continuous alcohol monitoring system. The continuous alcohol monitoring system shall be of a type approved by the Division of Community Supervision and Reentry of the Department of Adult Correction.

Aggravating factors, which can increase the severity of your sentence, include:

• Gross impairment of the defendant’s faculties while driving or an alcohol concentration of 0.15 or more within a relevant time after the driving. For purposes of this subdivision, the results of a chemical analysis presented at trial or sentencing shall be sufficient to prove the person’s alcohol concentration, shall be conclusive, and shall not be subject to modification by any party, with or without approval by the court;
• Especially reckless or dangerous driving;
• Negligent driving that led to a reportable accident;
• Driving by the defendant while the defendant’s driver’s license was revoked;
• Two or more prior convictions of a motor vehicle offense not involving impaired driving for which at least three points are assigned or for which the convicted person’s license is subject to revocation, if the convictions occurred within five years of the date of the offense for which the defendant is being sentenced, or one or more prior convictions of an offense involving impaired driving that occurred more than seven years before the date of the offense for which the defendant is being sentenced;
• Conviction for speeding by the defendant while fleeing or attempting to elude apprehension;
• Conviction for speeding by the defendant by at least 30 miles per hour over the legal limit; and
• Passing a stopped school bus; and
• Any other factor that aggravates the seriousness of the offense.

NOTE: Except for the fifth listed aggravating factor, the conduct constituting the aggravating factor shall occur during the same transaction or occurrence as the impaired driving offense.

The grossly aggravating factors are:

1. A prior conviction for an offense involving impaired driving if:

a. The conviction occurred within seven years before the date of the offense for which the defendant is being sentenced; or

b. The conviction occurs after the date of the offense for which the defendant is presently being sentenced, but prior to or contemporaneously with the present sentencing; or

c. The conviction occurred in district court; the case was appealed to superior court; the appeal has been withdrawn, or the case has been remanded back to district court; and a new sentencing hearing has not been held.

NOTE: Each prior conviction under this subsection is a separate grossly aggravating factor.

2. Driving by the defendant at the time of the offense while the defendant’s driver’s license was revoked pursuant to a previous DWI conviction.

3. Serious injury to another person caused by the defendant’s impaired driving at the time of the offense.

4. Driving by the defendant while (i) a child under the age of 18 years, (ii) a person with the mental development of a child under the age of 18 years, or (iii) a person with a physical disability preventing unaided exit from the vehicle was in the vehicle at the time of the offense.

HOW ARE THE SENTENCING FACTORS USED TO DETERMINE THE DWI SENTENCE?

In imposing an Aggravated Level One, a Level One, or a Level Two punishment, the judge may consider the aggravating and mitigating factors in determining the appropriate sentence. If there are no grossly aggravating factors in the case, the judge must weigh all aggravating and mitigating factors and impose punishment based thereon.

• The court must impose the Aggravated Level One punishment if it is determined that three or more grossly aggravating factors apply.
• The court must impose the Level One punishment if it is determined that the grossly aggravating factor regarding passengers who are minors or disabled persons applies or if two of the other grossly aggravating factors apply.
• The court must impose the Level Two punishment if the judge does not find that there were minors or disabled persons in the vehicle but that one of the other grossly aggravating factors applies.

If the judge or the jury in the sentencing hearing determines that there are no grossly aggravating factors, the court shall weigh all aggravating and mitigating factors and impose a Level Three, Level Four or Level Five sentence accordingly. If the judge determines that:

• The aggravating factors substantially outweigh any mitigating factors, the judge shall note in the judgment the factors found and the judge’s finding that the defendant is subject to the Level Three punishment.
• There are no aggravating and mitigating factors, or that aggravating factors are substantially counterbalanced by mitigating factors, the judge shall note in the judgment any factors found and the finding that the defendant is subject to the Level Four punishment.
• The mitigating factors substantially outweigh any aggravating factors, the judge shall note in the judgment the factors found and the judge’s finding that the defendant is subject to the Level Five punishment.

It is not a mitigating factor that the driver of the vehicle was suffering from alcoholism, drug addiction, diminished capacity, or mental disease or defect. Evidence of these matters may be received in the sentencing hearing, however, for use by the judge in formulating terms and conditions of sentence after determining which punishment level shall be imposed.

WHAT ARE THE PUNISHMENTS FOR DWI SENTENCING LEVELS?

The sentences for DWI convictions in North Carolina are divided into six levels, from Level 5 (least severe) to Level A1 (most severe) as follows:

Level 5: A fine up to $200 and a jail sentence of 24 hours to a maximum of 60 days, but this sentence can be suspended with community service being required in lieu of jail time. If the defendant is placed on probation, the judge shall impose a requirement that the defendant obtain a substance abuse assessment and the education or treatment required for the restoration of a driver’s license and as a condition of probation.

Level 4: A fine up to $500 and a jail sentence of 48 hours to 120 days, but this sentence can be suspended with community service being required in lieu of jail time. If the defendant is placed on probation, the judge shall impose a requirement that the defendant obtain a substance abuse assessment and the education or treatment required for the restoration of a driver’s license and as a condition of probation.

Level 3: A fine up to $1,000 and a minimum jail sentence of 72 hours to a maximum of six months, but this sentence can be suspended in lieu of jail time. If the defendant is placed on probation, the judge shall impose a requirement that the defendant obtain a substance abuse assessment and the education or treatment required for the restoration of a driver’s license and as a condition of probation.

Level 2: A fine up to $2,000 and a minimum jail sentence of seven days to a maximum of one year. The term of imprisonment may be suspended only if a condition of special probation is imposed to require the defendant to serve a term of imprisonment of at least seven days or to abstain from consuming alcohol for at least 90 consecutive days, as verified by a continuous alcohol monitoring system that is specifically approved by the state for this purpose. However, if the Level 2 sentence is issued because of conviction due to driving while impaired during the preceding five years or because the defendant’s license was revoked due to a previous impaired driving conviction, the Defendant must also complete at least 240 hours of community service. If the defendant is placed on probation, the judge shall impose a requirement that the defendant obtain a substance abuse assessment and the education or treatment required for the restoration of a driver’s license and as a condition of probation.

NOTE: If the defendant is monitored on an approved continuous alcohol monitoring system during the pretrial period, up to 60 days of pretrial monitoring may be credited against the 90-day monitoring requirement for probation

Level 1: A fine up to $4,000.00 and a minimum prison sentence of 30 days to a maximum of two years. The prison term can be suspended by the Court require the defendant to serve a term of imprisonment of at least 30 days. However, a judge may reduce the minimum term of imprisonment required (but the term must be no less than 10 days) if it is required that the defendant abstains from alcohol consumption and be monitored by a continuous alcohol monitoring system for a period of not less than 120 days. If the defendant is placed on probation, the judge shall impose a requirement that the defendant obtain a substance abuse assessment and the education or treatment required for the restoration of a driver’s license and as a condition of probation.

NOTE: If the defendant is monitored on an approved continuous alcohol monitoring system during the pretrial period, up to 60 days of pretrial monitoring may be credited against the 120-day monitoring requirement for probation.

Level A1 / Aggravated Level 1: A fine up to $10,000 and a minimum prison sentence of one year to a maximum of three years. The prison sentence may be suspended only if a condition of special probation is imposed to require the defendant to serve a term of imprisonment of at least 120 days. If the defendant is placed on probation, the judge shall impose as requirements that the defendant abstain from alcohol consumption for a minimum of 120 days to a maximum of the term of probation, as verified by a continuous alcohol monitoring system. If the defendant is placed on probation, the judge shall impose a requirement that the defendant obtain a substance abuse assessment and the education or treatment required for the restoration of a driver’s license and as a condition of probation.

WHAT CAN BE DONE TO LESSEN THE SEVERITY OF A DWI SENTENCE? IS IT POSSIBLE TO AVOID JAIL OR PRISON TIME?

At Gary Britt Law, my goal is to present your case in the most favorable light. I will highlight any mitigating factors and contest any aggravating or grossly aggravating factors, with the aim of achieving the least severe level of sentencing possible.

Even in circumstances with most severe sentencing levels in play, there are strategies that can be employed to potentially reduce the length of jail time for a DWI conviction in North Carolina. One of these is proactively addressing the issue of substance use, particularly through continuous alcohol monitoring, substance abuse assessments, and participating in a treatment program.

Continuous Alcohol Monitoring (CAM) is a tool that monitors a person’s alcohol consumption on a 24/7 basis. Demonstrating continuous abstinence from alcohol consumption for at least 60 consecutive days through CAM, before trial, can lessen certain parts of someone’s punishment.

Undergoing a substance abuse assessment and following the recommended treatment can be a powerful mitigating factor. An assessment, conducted by a state-approved agency, evaluates your relationship with alcohol or drugs. Following through with the recommended treatment, be it counseling, in-patient treatment, or Alcoholics Anonymous meetings, shows the court that you are taking your situation seriously and making strides toward recovery.

The presence of these mitigating factors can potentially lessen the severity of your sentence, even under Level A1, the most severe sentencing level. The court has the discretion to reduce the minimum term of imprisonment if you are placed on probation and agree to participate in an abstinence program, such as CAM, complete court approved methods of community service, and/or complete a substance abuse treatment program.

If after evaluating a case it is determined that the best strategy is to lessen the outcome of a likely or certain conviction, the attorney’s job is still far from over, and at Gary Britt Law, you will receive the help and guidance needed to help lessen the severity of your possible sentence and even get guidance on how to have many – if not all – of the requirements of a sentence completed before you are even sentenced and thus allow you to have a shorter and easier time on probation. I have even had many clients avoid supervised probation completely because they were able to follow my guidance and advice on what to do prior to being sentenced.

As your attorney, I can guide you through these processes, ensuring that you understand the potential benefits and helping you take proactive steps towards demonstrating your commitment to change. This proactive approach can be instrumental in arguing for reduced jail time during the

sentencing phase of your DWI case. If you’re facing a DWI charge in North Carolina, reach out to Gary Britt Law today. Let’s explore all possible avenues to not just defend your case, but also mitigate potential sentencing, leveraging every aspect of North Carolina DWI laws for your advantage.