10 Things to Know About DWI

  1. The legal limit.

    1. The legal blood alcohol concentration (BAC) is below a .08. If your BAC is .08 or more you can be charged with a DWI. If you have a commercial driver’s license the legal limit is .04.
    2. Additionally, if you are under the age of 21, the limit is 0.00.
  1. Must I be driving to be charged with DWI?

    1. It depends on the facts and circumstances surrounding your case. There are many instances where officers do not find the individual specifically driving and they are still charged with a DWI. Those instances include: sitting in the driver’s seat with the engine running, investigating whether or not the engine was warm, the keys in the ignition and sitting in the vehicle, or sitting on the side of the road next to your vehicle.
  1. Whether or not the vehicle you are driving is motorized.

    1. Other than a horse, you can obtain a DWI charge if you are driving a golf cart, bike, four-wheeler, lawnmower, or scooter as long as it is being driven on a public road. In some cases, officers can charge an individual if they have probable cause that the vehicle was driven on a public road but came to rest on a private road.
  1. Public Vehicular Area

    1. You don’t actually have to be driving on the highway or a road to get a DWI. In order to be convicted of a DWI, the state only has to prove that you were driving on a public vehicular area, or PVA. A PVA is any area where the public is allowed to drive. Some common examples of this are; a boat ramp, parking lots, a drive thru, and parking decks, among others. If it is open to the public to drive on, the police can charge you with DWI there.
  1. Anything you say to the officer can and will be used against you at trial.

  1. Portable Breath Tests (Roadside)

    1. In North Carolina DWI cases, the hand-held device is called the AlcoSensor FST. That device does give a numerical reading of how intoxicated a person is...but the numerical reading/display is NOT the purpose of that device. The main purpose (which can seem tricky to a common person) is just to determine if there is a positive or negative reading of alcohol. In court, the numerical value cannot come into court; however, the positive or negative reading can. It is important to understand, refusing the roadside breath test is a person’s right and refusing the test does not bring about any consequences to your driver’s license. If there is a suspicion of a DWI, officers will try to gather all the evidence pertaining to that suspicion.
  1. Standard Field Sobriety Tests (SFSTs)

    1. There are four main types of sobriety tests which officers use to establish probable cause to arrest an individual for DWI. These tests include PBT (above), horizontal gaze nystagmus, walk and turn, and one leg stand. An individual that is detained by an officer and asked to do these tests do not have to do them. However, the officer can testify that the individual refused to partake in any sobriety test. At that point, the judge can either use that against you in a trial setting or not.
  1. Evidentiary Breath Sample (Intox at Police Station)

    1. Along with the roadside breathalyzer test, the State has the right and burden to use the fact that you refused the tests against you at trial. The State will try to draw the inference that because you did not consent to blowing into any machine, gives rise to the presumption that you are hiding something. The something is that you were over the legal limit while driving.
    2. If you refuse this test, your driver’s license is subjected to a one-year automatic suspension. There is a hearing that can be held to fight whether or not you refused to blow but that is completely separate from your DWI court dates.
  1. You will go to jail.

    1. Once arrested for a DWI, the officer will take you down to the jail for processing. The length of this process depends upon a number of different factors that are going on at the jail that evening. The circumstances that can happen include released on a written promise to appear, unsecured bond, secured bond (need money in order to get out of jail), or placed on a hold until you have sobered up.
  1. Penalties

    1. If an individual is convicted of a DWI, their sentence will largely depend on any grossly aggravating factors, aggravating factors, and mitigating factors. Generally, there five levels in which an individual can be sentenced for a DWI:
      1. Level One – Min: 30 days to Max: 2 years of jail time. Also, can incur up to $4,000 in fines and fees.
      2. Level Two – 7 days to 1 year of jail time. Can incur up to $2,000 in fines and fees.
      3. Level Three – 72 hours to 6 months of jail time. Can incur up to $1,000 in fines and fees.
      4. Level Four – 48 hours to 120 days of jail time. Can incur up to $500 in fines.
      5. Level Five (least restrictive) – 24 hours to 60 days of jail time. Can incur up to $200 in fines.
    2. Additionally, the judge can order alcohol assessment, restrain from any alcohol during probationary period, community service, and substance abuse assessment and education or treatment.