Impairment: What is the legal standard?

There are several different ways to check if someone is physically or mentally impaired when they are pulled over or stopped at a checkpoint.  The old road test of touching your nose and the balance test which you have seen on TV or in the movies are a bit outdated (While many officers’ still use them they are not approved by NHTSA).  While the Walk and Turn test is approved by the National Highway Traffic Safety Administration (NHTSA), it is of limited value if it is not administered according to the national standards.    In addition to the Walk and Turn, the NHTSA also has set up strict guidelines for the administration of other field tests.  These test are just a few of the methods used by officers to try to gain evidence (make a case) for impairment.  In North Carolina many officers also carry a hand held intoxilyzer for portable breath testing, however under the North Carolina law, these are so inaccurate that they are not admissible in court to show impairment, but only to show that there your breath tests positive for containing alcohol.


What is a breath test?

A breath test is a test performed by using a breath analyzer to tell if alcohol has been consumed recently and how much is present in someone’s system. The hand held models are not admissible, but North Carolina Law does recognize a valid reading on an Intox model EC/IRII.

When can an officer ask someone to perform a breath test?

Before the officer can require you to take the Intox EC/IR11 test the officer must have probable case to arrest (based upon Field tests and other evidence).  If someone is pulled over for swerving, involved in an accident or is going through a checkpoint an officer can ask that person to perform simple filed tests out on the side of the road, but cannot require a breath (or blood) test unless there is probable cause for an arrest.

Can I refuse to take the breath test?

Once you are in custody and properly charged with “drinking and driving” (formally “Driving While Impaired” DWI) you will be transported to the police station where you will be asked to perform a breath test.  Before you are requested to take the test an officer must inform you of your implied consent rights to refuse the test.  During this time the officer will inform you of your rights.  If the officer has followed all of the health regulations, and properly advised you, and you refuse to take a breath test you will be marked as a willful refusal.  If you do not contest this allegation then the DMV will take your driver’s license for one full year for the refusal, separate and apart from the criminal revocation for driving while impaired.

If you have a CDL, refusing to blow can have an even larger impact on your driving privileges since the DMV will take away your CDL without a hearing (unless you get an experience DWI attorney and request a hearing within 10 day) for a whole year.  This CDL “disqualification” starts during the first 30 days when your entire privilege (cars also) are revoked.

How is my blood alcohol content (BAC) used in court?

The prosecutor will attempt to get your blood alcohol content (BAC) reading admitted into evidence in a trial or sentencing.   There are other factors that weigh in on the charges against a person such as their driving record, if they have previously had a DWI and reputation in the community.

Why do the officers want my blood alcohol content (BAC)?

The police would like your blood alcohol content (BAC) as evidence to show that you are impaired.  For many attorneys, if you blew on the machine they may tell you to plead guilty.  Officer’s know that if they can get this evidence then many people will plead guilty.  Talk with an experience DWI attorney to see if this is a good idea.  Just because the officer has a breath or blood test, does not mean that it will be admissible against you.

If I don’t take the breath test the court cannot convict me?

This is incorrect, the court can still convict you even thou they do not have your blood alcohol content (BAC). There are other ways for the state to prove you were impaired or over the legal limit to drive.  These include the driving mannerisms, the field tests (which are designed for failure!) your speech, and how you answer questions.

What other ways can a refusal hurt me in court?

If you refuse to blow your own refusal can be used against you in court.  This appears to violate your fifth amendment right against self-incrimination (after all the legislature specifically tells you that you have a right to refuse) but the law has determined that it is admissible against you.    The prosecutor will argue that you knew you were impaired and you did want to blow because you did not want the breath test to reveal your level of impairment.

Can I just hire any attorney for my DWI?

Yes, and No.  Yes you can, but it is not advisable.  A DWI is not like a speeding ticket or writing your mother’s will.  These are some of the most complex and technical trials there are.  They have different criminal procures than any other crime, different sentencing factors and levels than any other crime, and complex evidentiary issues in the scientific tests and procedures.

If convicted of a DWI there are serious consequences that can be devastating if the proceedings are not handled in the proper manner.  There are time deadlines and you lose rights if these deadlines are not met.  Some important due process rights are lost if you do not hire an attorney in the first ten days.  For the best result always hire an experienced DWI lawyer that can handle your case.