If pulled over in Raleigh, the officer should be pulling you over for some violation of a traffic law. That could include a faulty light, speeding, or even a suspicion of Driving While Intoxicated. Whether it’s a checkpoint or you’ve been pulled over, the first thing the officer will do is approach your vehicle and ask for your license and registration. If the police officer believes you may have been drinking alcohol and driving in Wake County, they will likely ask you certain questions to elicit evidence of potential intoxication:
- “Have you been drinking tonight?”
- “How much have you had to drink?”
- “Where are you coming from?” (question designed to see if you will mention a bar or restaurant).
The officer will likely investigate further to determine your level of impairment/intoxication. This may start with what is called DWI Pre-exit Tests.
The 5th Amendment says: …”no person shall be compelled in any criminal case to be a witness against himself.”
You don’t have answer any questions and you may refuse to perform all field sobriety tests, including the portable breath test. As a matter of common sense if you refuse to do any of these things you should do it in a way that is both polite and respectful. You may still be arrested for DWI or something else in Raleigh, but you have the right to refuse all of these questions and tests without worrying about your license being revoked for a “refusal” (though the rules are different for the breath test at the police station).
Pre-exit Tests consist of tests that can be performed while still seated in your vehicle. They can include counting, reciting the alphabet, or finger dexterity tests (touch thumb to fingertip on each hand while counting).
If the officer feels you may be intoxicated, he or she will ask you to exit the vehicle. Once out of the vehicle, the officer will likely ask you to perform Standardized Field Sobriety Tests. The three common roadside sobriety tests are the One-Legged Stand, the Walk-and-Turn, and the Horizontal Gaze Nystagmus.
ONE LEGGED-STAND TEST
The officer requests you stand with one leg out in front of you, with the raised foot pointed up and both legs straight, hands at your side. You will be asked to count out loud until you reach thirty. The “clues” the officer is looking for in this test is raising your arms for balance, hopping, dropping your foot early, or swaying.
The next test is the Walk-and-Turn. In this test, the officer will ask you to walk a straight line, making contact heel-to-toe, for nine steps, while watching your feet, counting out loud, and keeping your hands at your side. The “clues” that are looked for are starting the test too soon, using hands for balance, stepping off line, missing heel-to-toe by more than a half-inch, an incorrect turn, a wrong number of steps, stopping the test early or not maintaining balance during instructions.
HORIZONTAL GAZE NYSTAGMUS TEST (HGN)
Nystagmus is the involuntary twitching of the eyes. Nystagmus can be caused for several reasons, one is alcohol impairment. The test is performed by the officer asking you to follow a stimulus while holding your head still. The officer is supposed to move the stimulus from left to right, watching each eye for certain “clues.” while performing the test, the officer is looking to see if your eyes do not track smoothly, or to see if you have ‘distinct’ Nystagmus when your eyes are all the way to one side. It is a common misbelief that this test is looking for whether you can follow the stimulus without moving your head, and while the officer will make note of it, it is not the primary purpose of the test. Therefore, no one but the officer knows whether you ‘passed’ the test or not.
ALCOSENSOR TEST (HANDHELD BREATHALYZER MACHINE)
In addition to these tests, the officer will likely ask you to blow into a Handheld Breathalyzer Test; known as the AlcoSensor. The AlcoSensor is used by the officer to determine your level of intoxication from the side of the road. The numerical results of this test CANNOT be admitted into evidence at trial (unless you are on trial for underage consumption of alcohol). The officer can only testify in court as to whether the machine indicated a positive reading for alcohol on your breath.
Once the AlcoSensor is administered and the Roadside Sobriety Tests are given the officer will make a determination as to whether they believe they have probable cause to arrest you.
INTOXILYZER 5000 OR INTOXIMETER EC/IR II TEST
In most instances, you will be taken to a local police station for this test. If it’s a DWI road-block the Intoxilyzer may be located in a nearby RV. The test is similar to the AlcoSensor test in that there is a machine being used to attempt to measure the level of alcohol on your breath. This just happens to be a bigger machine that has better accuracy than the portable test used in the field. Before administering this test, the officer must read you your rights regarding the test and your right to refuse. You have the right to ask for a witness to watch the test and to talk to an attorney, but the test will not be delayed longer than 30 minutes, even if your witness does not arrive in time. It is generally advisable to take the entire 30 minutes to protect your rights.
DO I BLOW AT THE STATION OR NOT?
You do not have the right to refuse this test without losing your North Carolina driver’s license. This test is what is called an “implied consent” test which means that, by driving on North Carolina roads, you have ‘implied’ to ‘consent’ to the test. This test will produce a numerical value for your blood/alcohol level which WILL be used against you in court. Unfortunately, since this test is an ‘implied consent’ test, the refusal to provide a breath sample will result in the loss of your license for 12 months. Keep in mind, however, if you are found guilty of DWI you will also lose your license. Also to be considered is the fact that, even if you refuse to provide a breath sample, the arresting officer can still attempt to obtain a warrant to take a sample of your blood, even without your consent. That is typically what they do if they suspect drug impairment.
After the administration of the Intoxilyzer 5000 or Intoximeter EC/IR II Breathalyzer Test, you will be booked and go before a Magistrate. The Magistrate will make a determination as to whether to set bond or not and will advise you of your charges and your rights.
North Carolina Pre-Trial Driving Privilege
If you were charged with DWI and you blew 0.08 or above on the EC/IR II (the breath test), you were automatically revoked for 30 days. After the 10th day of revocation, you are likely eligible for limited driving privilege. In general, the requirements for limited driving privilege are:
- At the time you were stopped you must have had a valid license to drive (or, if it is expired, it has to have been expired for less than you).
- You must not have been convicted of driving while impaired within the preceding seven (7) years.
- You cannot have been charged with any additional DWI since receiving the charge for which you are revoked.
- You must have proof of insurance, specifically a form called a DL 123.
- You need proof that you have obtained a substance abuse assessment. We are happy to give you a list of approved assessment providers.
- Pay $100 to the clerk of court.
Limited Driving Privilege. It is important to keep in mind that a pre-trial privilege is only valid up until the 30th day after you were charged with DWI. After that your restricted license expires and you must pay the $100 restoration fee to have your regular driver’s license reinstated. Once reinstated, you will keep your license unless and or until your license is revoked for conviction, at which time you will again potentially be eligible for a driving privilege.
Post-Trial Driving Privilege
In order to obtain a driving privilege after a conviction for DWI, you must satisfy all of the requirements that exist for the pretrial privilege. However, if you blew 0.15 or above on the breath test you must have an interlock device installed in your car and will lose your license for 45 days, without the possibility of privilege, before you become eligible. If you are convicted of a level I or II DWI, you will not be eligible for any privilege for one full year.
Driving Privileges in Refusal Cases
If you refused to take the breath test at the station, the DMV will notify you that your license is to be revoked for one full year. There will be no opportunity to get a driving privilege for the first six months. After the first six months you will be eligible to apply for a limited driving privilege however it will be up to the North Carolina Department of Motor Vehicles as to whether or not they grant it.
General Information about Driving Privileges
Standard hours for limited driving privileges in North Carolina are from 6 AM until 8 PM from Monday through Friday. If you need to drive for work or school outside of those hours you will need a letter from your employer or a class schedule from school specifying exactly why you need to drive and when.
If your license has been suspended as a result of a DWI and you need a driving privilege, our Raleigh DUI lawyers can help.
Raleigh DWI Lawyers at The Law Offices of Wiley Nickel, PLLC
The Law Offices of Wiley Nickel handles DWI cases in Wake County, North Carolina. If you have been charged with a DWI in Wake County, NC contact us at 919-585-1486 for a free consultation. Our office is located in Cary and we handle DUI charges issued from Raleigh, Cary, Apex, Morrisville, Garner, Wake Forest and other cities in Wake County, NC.