Why Would I want a Witness and When?
For most people, even being suspected of Driving While Impaired (in some states it is called Driving Under the Influence) can cause a lot of personal embarrassment. Because of this, it is not uncommon for a suspect to say they do not want a witness when the officer instructs them they have a right to have one present for testing. After all, this is already a difficult situation and you may feel that having a witness present will not help at all, and make an embarrassing situation more public. While some people may still choose not to call a witness, it is important to know that it is your right to do so, and exercising that right can be the difference between a DWI (or DUI) conviction and an acquittal.
What can a witness really do for me?
Before an arrest is made, for any crime, the police conduct an investigation to gather evidence. While TV shows often only depict murder or robbery investigations it is worth remembering that DWI’s involve investigation too, a person is not automatically guilty just because they were arrested.
The difficult part about investigating a DWI is that the evidence of the crime (a suspect’s Blood Alcohol Content) is slowly disappearing as his system metabolizes the alcohol. Because of the unique nature of DWI evidence, the most, and often only, useful evidence is found in the first few hours after being pulled over.
What is often not considered is that the window of time is also a critical time for you to be gathering evidence for your defense. Having a witness there with you adds another set of eyes and helps to ensure that anything the officer takes note of is a fair and accurate description. It also adds an impartial voice at trial which prevents the testimony from being your word against the officers. The State of North Carolina views the unreasonable denial of a witness as a denial of a suspect to gather evidence of his own innocence. Thus simply by calling a witness you have exercised your rights, and if the witness is denied access to you there are legal repercussions, including possible suppression of the breath or blood test, or even a possible dismissal depending upon the facts.
A witness can be critically important when you consider that a large amount of the evidence of DWI is subjective and officers can make mistakes, or jump to conclusions based on what they expect instead of what they are actually seeing. For example, it is common for officers to note that a suspect has “slurred speech” as evidence, at trial, of impairment. The officer might not be wrong about the speech, however it might also be that the suspect has a thick accent and is actually speaking normally for them. Calling a witness to the scene could allow them to testify later that you were speaking as you do. Calling for a witness at the breath test room can also show whether or not the procedures were followed correctly. Even after the breath test, calling for a witness if you are being held in jail can preserve evidence which could be critical to your case.
In short, having a witness present after the arrest is possibly the best evidence gathering tool for your defense and helps prevent an officer from, knowingly or unknowingly, misrepresenting the circumstances in that critical investigation window.
How long will I be allowed to wait for a witness?
While it is your right to have a witness present in the breath room, that right does not extend indefinitely. North Carolina law requires the Chemical Analyst to wait up to 30 minutes from when you are first advised of your breath testing rights for a witness to arrive, before you will be asked to submit to a formal breath test on an Intox EC/IR II machine. If an officer refuses to allow you a witness within that first 30 minute or mis-advises you of that option, it is a violation of your rights and could play a role in preventing a conviction.
In most DWI cases, a witness’s testimony can be some of the strongest evidence for a defendant. Even with the increased emphasis on video recording as many police interactions as possible there can still be very valuable information that only a witness can provide. While it is certainly tough to ask for someone you know to watch such a trying and personal experience, the benefits often outweigh the costs.
There are three critical times you should consider calling a witness: on the side of the road, before you do tests would be best, in the breath room before you blow would be good, but even after you are being charged and taken to jail, you still have the right to have an impartial witness come into the jail and observe your condition. While you do not have any statutory rights to a witness on the side of the road, you do have rights to a witness before the breath tests and while in jail. If the state prevents your witness from having access to you there are grounds to move to suppress evidence and possibly dismiss the case. Call early and call often.
If you have questions about your Driving While Impaired case, give us a call. We are here to help with Interlock violations, and help getting your driving privileges restored. Put our team to work to get you driving and keep you driving. We are driven to keep you driving!