This Insights was contributed by Patrick Mincey, a trial lawyer in Wilmington, where he founded the Criminal Defense Group at Cranfill Sumner & Hartzog LLP.
As the holiday season approaches, clients and friends reach out for advice in avoiding DWI charges after enjoying alcohol at holiday parties. In this first of a 3 part series, criminal defense attorney Patrick Mincey writes as a guest and offers his insight to handling holiday drinking and driving.
1. What are the legal reasons an officer can pull me over?
Law enforcement may perform a traffic stop upon reasonable suspicion that a crime has been or is being committed. This commonly includes routine traffic offenses such as speeding, unsafe movement or stop sign violations. Even non-moving violations like expired registration or a broken tail light are sufficient causes for officers to initiate a lawful stop and conduct a DWI investigation.
2. Are road blocks legal?
Yes, but with some limitations. In a case called State v. Rose, our state Court of Appeals prescribed certain criteria that law enforcement have to meet to ensure license check points are not conducted arbitrarily and are constitutional. While you still may be able to challenge some aspects of the stop in court, law enforcement officers are pretty good at complying with the criteria set out in State v. Rose.
3. If I am pulled over, should I admit that I have had alcohol before driving?
You should not lie to law enforcement. However, you have no legal obligation to answer an officer’s questions about what you have been doing. I generally advise people that you should be polite and provide your name, license and registration. After that, you have no obligation to answer anything else.
4. What if I want a witness present after I have been pulled over?
You do not have the right to have a witness present after you have been stopped on the side of the road. However, you do have certain rights to have a witness present to observe you blowing into the Intoxymeter, which is the calibrated device that will be used if you are arrested upon suspicion of committing DWI. That witness will have thirty minutes to come to the jail to observe you once called.
I generally recommend people call a witness because that thirty minutes could make the difference between your blood alcohol content being above the legal limit or below it after your body has had an opportunity to metabolize the alcohol. Note that this is a different machine than the hand-held device an officer may ask you to blow into on the side of the road. You do not have the right to have a witness observe the hand-held testing device.
5. Do I have to participate in field sobriety tests?
No. You are also not required to blow into the hand held device on the side of the road.
DWI law is some of the most complex criminal law in North Carolina. It is constantly evolving. Every case is entirely different and you should consult an attorney to discuss your particular circumstances. In the next two parts of this series, Patrick will answer other questions about submitting to a breath test, searches, and other aspects of DWI stops.
John D. Martin is a trial lawyer and the managing partner of the Cranfill Sumner & Hartzog LLP’s Wilmington, North Carolina office. Martin concentrates his practice in the medical malpractice and professional liability defense practice groups. He has tried numerous medical malpractice and personal injury cases throughout eastern North Carolina. Many of his cases involve brain injury, birth trauma, paraplegia and wrongful death. Additionally, Martin has experience with large construction litigation, premises liability and hospital/workplace security. To contact Martin, call (910) 777-6018 or email him at [email protected].
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