Common DWI Defenses

A Wake County DWI charge is difficult to beat. The law and justice system is severely stacked against DWI defendants. The District Attorney’s Office does not negotiate these cases; the judges believe that they are more electable if they are harder on DWI defendants. Statistics are thoroughly kept by both state and national agencies on how many Wake County DWI cases are found not guilty or dismissed.

With that said, there are still defenses for DWI charges that can be successful. Good attorneys can find issues in these cases. Great attorneys can find issues and effectively argue them with decent results.

Here is a list of the five most common defenses to DWI in Wake County:

1. The officer should not have pulled you over in the first place.

Before an officer can stop you, he must have reasonable grounds to believe that you are involved in some sort of criminal activity. This is usually not an issue if you were stopped or a traffic violation like speeding or running a red light. Those are obvious reasons for being pulled over. Less obvious reasons would be those that are not in themselves traffic violations. In more and more cases, officers are stopping people for weaving, driving too slow, not staying in their lane, or because they are driving in an area with a lot of bars. Depending on the officer’s notes and a possible video of the stop, arguments can be made that there were no reasonable grounds to stop you. If you did not commit a traffic violation and the office cannot articulate his suspicion of criminal activity, your rights may have been violated resulting in a dismissal of the case.

2. The officer did not have enough evidence to arrest you.

Before an office can arrest you for DWI, he must form the opinion that you are mentally and/or physically impaired on alcohol or drugs, AND the average reasonable officer would have come to the same conclusion. This defense usually depends on how you performed on the roadside tests. Maybe you refused to do them. Maybe you did great on the walking and balance tests, but the officer said you failed the eye test. Maybe you did well on all the tests, but you blew high on the roadside breath test. It is hard to outline all the different scenarios that could raise this issue. The important thing to remember is that there are dozens of scenarios where this defense could be effective. In the vast majority of Wake County DWI cases, this defense is a good issue to argue.

3. You blew a .08 or lower.

You may believe that if a person blows under a .08 they will be released.That is simply not correct. You can be charged with DWI even if your alcohol level is under .08 if the office believes that your mental and/or physical faculties are NOTICEABLY impaired. There are more and more DWI cases being charged in Wake County where the defendant blew a
.07 or .06. Fortunately these low blows make for a good defense. Judges are much more comfortable finding someone not guilty if they blew under the legal limit, so long as the officer did not witness anything that would shock the judge’s conscience. The same goes for cases where someone blows a .08. Although that number is specifically written in the statute as illegal, our state’s case law says that other facts in the case must corroborate that alcohol content. If you blew a .08 but your driving was fine and your performance of the roadside tests were above average, a solid defense in your case can still be made.

4. A witness was not allowed to see you blow in the machine at the jail.

After you’re arrested for DWI in Wake County, the officer will most likely drive you to the detention center on Hammond Road (a few miles south of downtown). Once there, he will ask you to blow into the Intoxilyzer machine. This is where your alcohol content number comes from. Before you can give a breath sample, the officer must wait at least 15 minutes. This is to
insure that there is no residual alcohol in your mouth. He will also ask if you would like a witness there to watch you blow into the machine. This question is required by law. If you do
want a witness there, the officer must wait 30 MINUTES, before asking you to blow. This is to
give your witness a chance to get to the detention center. If your witness arrives before the 30
minutes is up, they must be allowed to see you. If your witness arrived in time and was not allowed to see you take the breath test, a strong argument should be made that the results of the breath test are not allowed in court.

5. You were given an unfair bond.

After you are arrested for DWI you will be taken in front of a magistrate. A magistrate is a judicial official who, in these cases, is responsible for setting a bond. A bond is usually a dollar amount that you post before being released that will be returned after your case is over. This insures that you appear in court. In a lot of cases, a person’s written promise that they will appear in court is enough. In Wake County DWI cases, the bond can also say that you must stay in jail until you’re sober or that you can only be released if a sober adult picks you up.There are specific laws that give the magistrates a guide on setting bonds. If your bond was set too high, it may mean that your release has been illegally lengthened. Since you weren’t allowed to leave earlier, the people who know you best (friends and family) did not get the opportunity to see you. These people could have been witnesses in your case; they may have seen you and thought that you were not impaired. The same scenario could occur if the magistrate decides that you can’t leave until a few hours have passed. In the time it takes for you to sober up in the magistrate’s opinion, you may have had friends witness you who thought that you weren’t impaired in the first place.

This is a brief summary of five common defenses to DWI cases in Wake County. At least one of these issues is present in the vast majority of North Carolina DWIs.

Steven Saad is a Raleigh and Wake County criminal defense attorney with years of legal experience as both a defender of the accused and a former Wake County prosecutor. He is passionate about representing the people of his community that are accused of crimes and have unfortunately found themselves in our criminal system. Obtaining the best possible results in his clients’ cases is Steven’s only motivation.

During his years as a Wake County District Attorney, Steven prosecuted tens of thousands of criminal cases, giving him unparalleled insight into the criminal court process in Wake County. He thrives on the fact that a case can be won or lost in the smallest details, making preparation and communication with clients throughout a case critical.

Don’t waste an opportunity to discuss your case with an experienced and effective defense attorney and former Wake County prosecutor. Contact us today.