North Carolina Criminal Law UpdatesIf you’ve been accused of drunk driving, the most important thing you can do is to STOP TALKING.
Politely decline to answer questions and do not agree to submit to field sobriety tests. 
This includes answering any questions they have about your drinking or driving, where you were coming from, where you were going, or anything else.
The Fifth Amendment to the United States Constitution protects your right to remain silent, and it is crucial that you exercise this right.
Police sometimes try to get suspects to talk by using intimidation tactics or offering leniency, but remember that anything you say can be used against you in court.
We think it is best to immediately retain an experienced DWI lawyer who can help protect your rights and begin building a defense.
Should I do the dexterity tests?
No. You are not required to submit to what police call SFSTs or Standardized Field Sobriety Tests.
There are three types of “field sobriety tests” that police officers often ask drunk driving suspects to perform: the horizontal gaze nystagmus (HGN) test, the walk-and-turn test, and the one-leg stand test.
These tests are completely voluntary, and you have the right to refuse to do them.
However, if you do agree to take them, the results will likely be used against you in court.
Those tests are incredibly subjective. Even very experienced, very honest police officers get them wrong – John Fanney, Raleigh DUI Lawyer
What is the HGN?
The horizontal gaze nystagmus (HGN) test is when the police officer has you follow an object with your eyes. Ordinarily, that is either their extended finger or a pen.
The police officer is looking for three clues that may indicate intoxication or what we call “appreciable impairment” in North Carolina:
- Your eyes jerk when you move them from side to side (lack of smooth pursuit)
- The jerking is worse when the object is moved toward the side of your face (distinct nystagmus at maximum deviation)
- The jerking begins prior to 45 degrees (onset of nystagmus prior to 45 degrees)
What is Appreciable Impairment in North Carolina
Drunk driving is not required for a conviction.
Appreciable Impairment includes drunk driving or drunken driving but is actually a lower standard. 
The law only requires that the person’s mental or physical faculties to be appreciably impaired.
This can be from alcohol, illegal drugs, prescribed medication, over-the-counter drugs, or any combination of these substances.
As such, you can be convicted in North Carolina of “Driving While Impaired” or DWI, even if you were not “drunk.”
Even so, if you call and tell us you’ve been arrested for Drunk Driving charges in Raleigh or have a DUI arrest or DWI, we’ll understand what you mean.
We’re here to help.
What is the Walk-and-Turn Test?
The walk-and-turn test is just what it sounds like – the police officer will ask you to walk heel to toe in a straight line, turn around, and then walk back.
The police officer will be looking for eight clues that may indicate intoxication (appreciable impairment):
- Can’t keep your balance while listening to the instructions
- Start too soon
- Stop while walking
- Don’t touch heel-to-toe
- Step off the line
- Raise your arms to keep your balance
- Make an improper turn
- Take the wrong number of steps
What is the One-Leg Stand Test?
The one-leg stand test is just what it sounds like – the police officer will ask you to stand on one leg and count out loud by thousands (one thousand one, one thousand two, etc.) until told to stop.
The police officer will be looking for four clues that may indicate some level of impairment:
- Put your foot down
- Sway while balancing
- Use your arms to balance
- Hop to maintain balance
Am I required to blow into the breathalyzer?
First and foremost, there is a fair amount of confusion over the term “breathalyzer.”
In fact, while a lot of people still call the breath testing machine a “breathalyzer,” we haven’t used that specific device in North Carolina for about 30 years.
Of course, when comes to DWI charges, that’s not the only source of confusion in North Carolina.
Most people refer to the offense of Impaired Driving as DUI or DWI or driving under the influence or driving while intoxicated.
Clients calling their legal matter a drunk driving case or DUI arrest or DWI First or First Time DUI is pretty common.
We’ll take the time to explain what happens to your driver’s license and answer questions like:
- What happens if I refuse the Breath Test?
- Will they impound my car or motor vehicle?
- How long will I have a suspended license?
- Can I get a copy of the police report?
- What happens if I refused a Field Sobriety Test?
- Can I get my charges dismissed if I was falsely accused?
- What happens to my driving privileges?
- Can I get a “hardship License” or Limited Driving Privilege?
- Am I looking at jail time?
- Is Reasonable Suspicion required for a traffic stop?
- Will I have a mugshot if I’m arrested?
- What are the consequences of a conviction?
For roadside testing, police use a device called an AlcoSensor. For testing at the police station or jail in Wake County, a Licensed Chemical Analyst uses a machine called the EC/IR II.
The AlcoSensor is not scientifically reliable. As such, the numerical value on the handheld AlcoSensor is not admissible as evidence against you.
The police officer may testify that the AlcoSensor results showed either “positive” or “negative” for alcohol.
The evidentiary breath testing device, the Intoximeter EC/IR II, and the numerical value or reported BAC Breath Alcohol Content it reports on a Test Ticket, may be used as evidence against you in court.
The State bears the burden of proof to show the EC/IR II was operating correctly and that an appropriately trained and licensed LCA or Licensed Chemical Analyst conducting testing in the manner approved by the NC DWI laws.
What does Take the 5th mean?
The Fifth Amendment to the United States Constitution protects all of us from self-incrimination.
This means that you have the right to remain silent when questioned by police officers or other government officials.
When you are pulled over on suspicion of drunk driving, the officer will likely ask you a series of questions.
He or she may also request that you perform field sobriety tests.
It is important that you understand your rights before this situation arises.
You have the right to remain silent and you should exercise that right.
Anything that you say to the officer could be used against you in court.
We think it’s best to politely tell the officer that you are exercising your right to remain silent and that you would like to speak to an attorney – John Fanney, Raleigh DUI Attorney
The officer may try to convince you that it is in your best interest to cooperate, but do not be fooled.
If the police are investigating you for driving while impaired charges in Raleigh, there is a very good chance they are already suspicious and by asking you questions and asking you to do tests, they are in fact gathering evidence against you.
Rarely is in your best interest to talk to the police without an attorney present.
If you have been arrested for drunk driving, we strongly recommend you contact a DWI lawyer in Raleigh with substantial experience helping people with impaired driving allegations.
At the Fanney Law Office PLLC, managing attorney John Fanney has more than 30 years of experience fighting DWI charges in North Carolina.
In my humble opinion, when it comes to DWI charges, nothing is more important than decades of courtroom experience. Your case deserves the attention of a lawyer who understands what they’re doing – John Fanney, DWI Lawyer in Raleigh NC
We will aggressively fight for your rights and work with the goal of obtaining a favorable outcome in your case.
There are no promises when it comes to criminal defense and drunk driving charges in North Carolina.
Each case is different. They’re complicated and a drunk driving conviction carries consequences.
Contact us today for a free consultation.
What is Probable Cause?
Probable cause to arrest for DWI in North Carolina is a complicated, nuanced legal issue.
Generally, prior to an arrest, law enforcement must have probable cause.
It’s a lower legal standard than proof Beyond a Reasonable Doubt. It’s a higher level of proof than Reasonable Suspicion.
In order to make a DWI arrest, police officers must have more than a hunch that you have been drinking and driving.
They must observe specific behaviors or facts that give them probable cause to believe that you are appreciably impaired, in violation of the NC DWI Law N.C.G.S. 20-138.1.
When is there enough Probable Cause to Arrest?
Relative to impaired driving charges in North Carolina, police officers may consider numerous different factors.
You do not need to be driving drunk. Police officers are also not required to perform DUI field sobriety tests.
Even very experienced law enforcement officers make mistakes. Innocent people can be falsely accused of operating a vehicle over the legal limit and arrested in error.
In Court, we regularly hear evidence that the accused:
- Weaved or was “Weaving” in and out of lanes
- Drove above or below the speed limit
- Made wide turns
- Failed to use turn signals
- Nearly hit another vehicle or object
- Admitted to drinking alcohol prior to driving
- Had “Red Glassy Eyes” or “Slurred Speech”
- Unsteady on Feet
- Had a Strong Odor of alcohol
Will the Judge be mad at me if I fight the charges?
No. The Judge wants you to have a fair trial. That’s your Constitutional Right.
You cannot be punished for exercising your Constitutional Rights and demanding a trial.
That does not mean we recommend every client take their case to trial. Some cases merit a bench trial and even a jury trial. Other DWI charges are such that a plea makes sense. Each case is different – John Fanney, DWI Attorney in Raleigh
Can the Prosecutor use what I said against me in Court?
Yes, assuming you either waived your right to remain silent or you spoke with police officers voluntarily or were not subject to a custodial interrogation at the time.
If that seems pretty complicated, it is.
Because of that level of complexity, legal issues involving Reasonable Suspicion to Stop, Probable Cause to Arrest, and 5th Amendment Rights are regularly argued in court.
This is why we think it is imperative to have an experienced DWI lawyer by your side at all stages of the process.
What should I do if I am stopped by the police and accused of drunk driving?
The first and most important thing to remember is that you have the right to remain silent.
Basically, STOP TALKING.
You should politely decline to answer any questions asked by the police without an attorney present.
If you are arrested, you may be read your Miranda rights, which include the right to remain silent.
You should take advantage of that right and not say anything to the police until you have spoken with an attorney.
Failure to read your Miranda Rights is not necessarily a legal basis for the dismissal of your charges.
That too is a complicated area of law.
Evidence gathered in violation of the 5th Amendment tends to be subject to a Motion to Suppress.
There may be other types of evidence against you that may prove legally sufficient, using the Reasonable Doubt standard, for a conviction.
What if I submitted to field sobriety tests or a breath test?
In North Carolina, field sobriety tests and roadside breath tests on the PBT are voluntary.
You are not required to do them.
However, if you submitted to them and failed (the SFSTs) or tested “positive” on the AlcoSensor PBT, the prosecutor could use that against you in court.
Failing to submit to the EC/IR II Intoximeter or Blood Testing when legally required may result in the suspension of your driver’s license.
We call that a Willful Refusal in North Carolina.
As such, you may refuse to perform dexterity tests.
You may also refuse to submit to a portable breath “screening” test, known as the AlcoSensor or PBT.
Refusing the AlcoSensor does not result in the suspension of your license. The officer may take your refusal to blow into the AlcoSensor PBT into consideration in making their Probable Cause “Arrest Decision.”
Refusing to blow into the Intoximeter EC/IR II is not a separate criminal charge like other states.
At the same time, willfully refusing the evidentiary breath or blood test(s) is a legitimate legal basis to suspend your license.