While most think of alcohol based DWI, police also arrest folks for prescription drug DUI. However, here’s how you can protect yourself?
So What is Prescription Drug DUI?
While most folks think of alcohol DUI cases, DWI laws are much broader and includes any “impairing substance”. In addition, even if prescribed by a doctor, a prescription drug DUI is just as bad as any other DWI. However, these cases are much more difficult for the State of North Carolina to prove you guilty. Rather than breath test results, the police usually ask for urine or blood tests to show drugs present. Then, they must prove “appreciable impairment” while you were driving on the road. So how do they do that?
Because there is no BAC in prescription drug DUI cases, police must rely on bad driving and field sobriety tests. However, if there is no bad driving and you look good on video, you will probably win your case. After all, no one can really do those roadside tests the first time without making mistakes. In addition, the police officer only makes it look easy because they have done them hundreds of times. But when they did them for the first time, they were just as awkward as you. So don’t feel bad about your performance.
So What Do Blood or Urine Tests Show
Whereas most people think blood or urine tests are conclusive, they are not. Rather, they only show the presence of alcohol or drugs. Furthermore, the State’s expert witness will testify on the stand that presence of a drug does not prove impairment. However, this does not apply to illegal drugs in your system. Instead, under NC law, “any amount” of a Schedule I drug is enough to prove impairment. But for every other drug, the police must show “appreciable impairment” to win their case against you in court. So don’t give up just because you take prescription medications. Because every DWI is worth fighting, call our firm now and let’s start your defense.
Because DWI cases are so serious, most people have lots of DUI anxiety after arrest. Furthermore, it never leaves as you go through the DUI legal process. But try to relax. After all, you have hired an experienced DUI attorney. So trust your lawyer and follow their advice to get through this ordeal.
DUI Anxiety and How to Deal With It
Because we fight DUI cases everyday, we know the feeling of dread and fear our clients face. In fact, they tell us their DUI arrest never fully leaves their mind. Even in their sleep, they often dream of what will happen and wake up in the middle of the night. Rather than worry, we want you to let us do our job, and you focus on other things. So here’s how you can deal with your DUI anxiety.
While we defend your case, you work on the truly important parts of your life. After all, you will get through this. Although there may be consequences, it is not the end of your life. In fact, many clients tell us they come out stronger than before they started. Even if they lose their case, they learn from the experience and move on to better things. And so will you.
So Trust and Listen to Your DUI Attorney
Hopefully, when first arrested, you researched to find who you believed was the best Charlotte DUI attorney for your case. Rather than just open mailed letters, you actually compared credentials and experience. Consequently, you made your best choice of a DWI lawyer. So now, trust that choice and listen to what they tell you. Because they also want the best outcome in your case, they will guide you through the process. While you may not win your case outright, there are still ways to minimize the harm and punishment. As a result, go with your initial instincts in choosing a lawyer and then follow their advice.
While you may have a good excuse, failure appear or FTA is actually a very big deal. However, we will explain what happens next and how we can help.
Failure Appear in Mecklenburg County
Because you cannot always control life, sometimes people are unable to appear and miss court. Other times, they may just forget or get their dates confused. Either way, a missed court date is bad and results in a Failure to Appear and Order for Arrest (OFA). So what happens now? Well it depends. If stopped by police before removed, an arrest and jail is your future. However, it does not have to be this way. Rather, we can file a Motion to Strike the OFA, and get you back in the court’s good graces. But don’t let it happen again. Next time it will not be so easy.
Followup Court Date
While some clients miss court dates by mistake, others simply cannot make it because they live elsewhere. So here is the dilemma. Although a serious matter, police are not going to “come get” anyone. However, if stopped for even a minor traffic violation, police may arrest you if they see the OFA. Consequently, our clients who live in another State do not have to worry about arrest. But they can face driver’s license issues while the OFA is pending. Hence they want to close this matter as quickly as possible.
Once we strike the OFA, we also set a new court date for a new hearing. Consequently, our clients from other jurisdictions need to be ready and able to appear next time. Otherwise, they will be right back where they were except with fewer options available. As a result, we work closely with their schedules so that we avoid this problem. Not to worry. After all, this is what we do, and we can take care of your situation too.
While weed is legal in some form in twenty-six states, it is not yet here in North Carolina. So the weed news outlet Cannabist has created a map that breaks down marijuana laws in each state. In addition, more and more States are reducing marijuana penalties and even allow for its use at some level. Hence is it OK to be driving stoned in NC? No but it is more difficult to prove in court.
First, is Weed Legal in NC?
Currently, North Carolina has not legalized weed in any form. While bills are regularly introduced, none have gotten close to passing so far. However, we continue to hope for some reasonable legislator to break from the pack. Nevertheless, you cannot consume, sell, or grow weed here even if it is for personal use or medicinal purposes.
So is Driving Stoned Illegal?
Absolutely, driving stoned is illegal in North Carolina. However, there is no standard like the 0.08 “legal limit” for alcohol. In addition, unlike other illegal drugs, simply having it in your system is not enough. As a result, marijuana DWI cases are easier to defend unless you are truly impaired. While legalized states use saliva and breath tests to show recent use, no such test exists in North Carolina. And if weed is found in a blood or urine test, that fact does not show active impairment. Rather, it only means you smoked at some time within a few days.
Because there is no 0.08 standard, the State must show “appreciable impairment” to convict you. So how do they do that? While being investigated, the officer uses roadside field sobriety tests. While the police rely on them, we mock how walking a line or standing on one foot is helpful. Rather, the best way to determine impairment is how someone is actually driving on the road. Hence, if you drive well, you are most probably not stoned, and therefore, not guilty. And that’s why my dog Roo in the picture is not guilty. In addition, she is too cute to go to jail.
Most people know that if you are convicted as a felon, you lose the right to own a gun. However, most don’t realize that it is possible to lose your right if convicted of DUI. Federal law provides that for misdemeanors that provide for up to two years of active sentence, a person will lose their right to own a gun. With a crime like DWI, there is a wide range of punishment possible, because the lowest level of DWI can result in a punishment of only 24 hours of community service, while the highest level (Aggravated Level One) can keep a person in jail for up to three years. If each level is considered 6 different offenses under federal law, then the person who is sentenced at one the lower five levels should be fine to own a firearm. It appears that this is how DWIs would be treated under the law. A person sentenced at Aggravated Level One would lose their right to own a gun, but people sentenced at other levels would not lose this right.
It doesn’t seem that DWI shouldn’t really be a crime that causes people to lose their right to own a firearm. Most people would understand if a person who was convicted of a violent crime was now allowed to own guns. But the fact that a person has a DWI does not necessarily mean that they should not be trusted to own a firearm.
Unfortunately, as the law is currently written, it seems that it is possible for a person to lose their right to own a gun when they are convicted at Aggravated Level One. While this not be an issue that some people care about, it may be a very important issue for others. This is just an example of one of the secondary issues that can arise when a person is convicted of DWI. This is just another reason to think twice before driving a car after drinking. You can find yourself being effected in ways that you never though possible. All the more reason to keep yourself safe from even having to worry about DWI charges.
Because of public interest, DWI cases are often showcased in the media. Usually, the news is quick to point out accidents caused by drunk drivers. However, they don’t highlight other cases.
News and DWI Arrests
While drunk drivers are a public safety threat, many people arrested for drunk driving are caught because someone ran into them. Strangely, this type of case does not get much coverage, it shows bias. In addition, many of our clients are the ones who call the police to get an accident report. For example, they are sitting in traffic and get rear-ended. Because they want an accident report, they call 911. Although they felt fine to drive, they still get arrested and put in a police car.
People charged with DWI are not all monsters like the news shows them. Rather, many are just ordinary, hardworking people just like you. However, being charged with DWI is not the end of the world. Instead, having an experienced lawyer can help you make good decisions about your case. When a person’s case is dismissed or they are found not guilty, the weight of the DWI is lifted. But even if they don’t have their case go away, they will still be okay. After all, every one makes mistakes in life and should be forgiven if they learn from it. Either way, we will help get you through this ordeal.
So the next time you hear about an accident caused by a drunk driver, don’t jump to conclusions. Just remember that all people accused of drunk driving are bad people. In fact, most are folks who have a drink with dinner or a beer at the game. Furthermore, they are responsible people who would never take a chance if they felt unsafe to drive. In addition, the news need viewers, so they tend to make mountains out of mole hills. Don’t be fooled. And don’t be so quick to judge others as you could find yourself in the same situation one day.
While most crimes allow any time spent in jail after arrest to be credited when sentenced, DWI is different. Rather, a judge is able to a credit time against punishment and reduce the penalty a person is facing. For example, in some cases, a judge can even sentence a person to “time served,” and release them. However, due to N.C.G.S. 20-179p, there is a distinction made in DWI cases.
Time Served Issues in DWI
Under NC law, a person cannot be given credit for the first 24 hours of time served jail for a DWI charge. Why? Because the person is being spending time to “dry out” from having too much alcohol. Since this is the purpose of the person being in jail, it is not credited to them as punishment. Rather than being punishment, it is more of a way to keep the person and the public at large safe.
In addition, there are a couple of other aspects of the sentencing statute that are important to note. More specifically, it states the person sentenced shall served the minimum sentence and not be given credit for good behavior. Furthermore, the defendant may not be released on parole unless they have served the mandatory minimum sentence. And finally, they must obtain a substance abuse assessment and complete the recommended treatment.
All of this being said, many people who are convicted of DWI do not go to jail. But for those that do, each of these provisions is extremely important. So if a person has to spend time in jail, every single day that they are in jail counts. As a result, understanding how time served in jail is calculated becomes very important. Consequently, these laws, specific to DWI, are another example of the legislature’s concern about people driving while impaired. After all, everyone should be concerned and take steps to avoid DUI.
There are several DWI bills pending in the North Carolina legislature that could potentially change DWI laws. Two of the biggest changes deal with Habitual DWI and for a .00 Blood Alcohol Concentration requirement while driving after the license is restored after a DWI conviction.
DWI Bills Pending in Legislature
Currently, for a person to be convicted of DWI, they have to have three convictions for DWI within the past ten years. If the person is arrested for a fourth DWI, then the charge is elevated to a felony called Habitual DWI. There is a bill pending in the legislature that would reduce the number of prior DWIs to just two. Thus, if the person had two DWIs within the past two years, then they would face a felony (Habitual DWI). As a result, this new law would “broaden the net” for people arrested for Habitual DWI. While not many people have three convictions for DWI within the past ten years. There are a surprising number of people who have two DWIs in the past ten years. Hence, all of these people could be facing a felony if they are arrested for DWI again.
The second major bill pending affecting DWI cases restricts every person convicted of DWI to a BAC of .00. In addition, those who have ignition interlock installed would have to get the .00 set up for the device. While this will be a huge headache, it will hopefully deter people from driving after consuming any alcohol. If not, the consequences will be even more harsh.
While pending, these bills have not passed to become law yet. Furthermore, if the Habitual DWI law is passed, it will not take effect for those offenses occurring before December 1st, 2015. And finally, if the .00 restriction is passed, it would apply only to offenses on or after July 1st, 2016.
There is much confusion about portable breath testing and how it is used. The Portable Breath Test (or Preliminary Breath Test), also called a PBT, is used on the scene of the traffic stop.
Portable Breath Testing in DWI Arrests
An officer will typically offer a PBT to a person after the person has completed the Standardized Field Sobriety Tests. Normally, the officer will seek two breath tests, five minutes apart. The way that the results of the tests can be used are extremely limited. The officer can use the results to determine if the person is positive or negative for alcohol. The fact that a person has some alcohol in their system is not necessarily news to the officer. The person may have already admitted consuming alcohol. The PBT is only supposed to be used to confirm or deny the presence of alcohol.
The number that appears on the PBT is not admissible in court. The reason that it is not admissible is the quality and calibration of the machine. These machines are continuously handled by officers, are used in all sorts of weather conditions, and may not be as well maintained as they ought to be. Because of this, they may be subject to inaccuracies. For all of these reasons, the results from Portable Breath Testing are generally excluded from evidence, subject to exceptions. Therefore, the only numbers that are admissible are from an Intoxilyzer machine, which is typically found at the police station. A court will only allow the fact of the presence or absence of alcohol on a PBT into evidence.
That being said, sometimes an officer will use the Portable Breath Test in making an arrest decision. They may know that the person has had some alcohol, but may still release them if they blow a .01 on the PBT. However, some will recognize the inaccuracy of Portable Breath Testing and decide to make an arrest decision even if there is some concentration of alcohol below .08.
If you are stopped by a police officer and are investigated for DWI, will you be released if you blow below .08? While it may depend on the officer, generally the answer is no. Sometimes an officer will tell a person that if they blow below a certain number on a Portable Breath Test, he or she will let them go. This is interesting, because the number that a Portable Breath Test reports is not even admissible in court. Nevertheless, an officer is not limited by the number that they get on the Portable Breath Test. It is the number that is blown back at the station that really counts, so if an officer gets a number below .08 at the street, they are still justified in getting a reading at the station. Once they get to the station, if the person blows below .08, the prosecution can argue that at the street the blood alcohol content was higher. They can argue the blood alcohol was processed by the body, and consequently the blood alcohol dropped over time. Therefore, the blood alcohol content was over the legal limit while the person was driving.
In addition, a blood alcohol reading of .08 or more is not required for a person to be charged with, or even convicted of, DWI. That is because the statute also prohibits driving a vehicle on a road or in a public vehicular area when a person is materially and appreciably impaired. If the prosecution can show that the person was impaired in such a way that they ought not be driving, then it does not matter that the person provided a sample that showed that they were below .08. That being said, it is harder for the prosecution to prove that a person was impaired unless their performance on the Standardized Field Sobriety Tests was terrible, and their behavior or driving was erratic. These types of cases are different than cases in which a blood alcohol content number was collected, because then that number has to be addressed by the defense
So while you have a blood alcohol content of less than .08, you may still be forced to fight a DWI charge. This comes as a shock to many people, but it happens all the time. So if you blow below .08, don’t be surprised if an officer still asks you to put your hands behind your back.