If Pulled over for DWI
If Stopped for NC DWI, What Should You Do?
By the time most people call us, they have been arrested and charged with a NC DWI. They usually ask many questions about what they should or should not have done or said. At this point, the time for such considerations has passed, and we have to deal with the facts as they are. This page, however, is offered to those individuals who want to know in advance how to handle a police stop for suspicion of drunk driving.
Of course, the best and “fool proof” way to avoid a NC DWI arrest is to consume NO alcohol in any form prior to driving. Being the “designated driver” does not mean you’re the one who has had the least to drink. Have an iced tea or a Coke and enjoy watching other people “be cool” while impaired. But always remember that if an officer smells ANY alcohol on your breath, you are most likely going to end up in jail for the night.
Here are some guidelines on what to do:
1. Always have your license, registration, and proof of insurance readily available and accessible. I suggest keep those items above your visor. Reaching into the glove box as an officer approaches your car can elicit an undesired response. And fumbling with several documents in different locations may be falsely interrupted as a “clue” of impairment.
2. Avoid making any incriminating statements. Honesty does not work here. Silence does. When directed to exit the vehicle, do so promptly without any challenge. Keep your hands visible and do not lean on your car once outside. Be compliant with the officer but politely decline to answer any questions other than your name and address. NEVER say you’ve had a “couple of drinks,” even if true. Such answers will be used against you later in court and forms a basis for further DWI investigation.
3. Politely decline any field sobriety tests. These “tests” are designed to fail. They are practically impossible to perform under the best of conditions and fully sober. On the side of the road in the middle of the night, you are just not going to succeed, and all “failures” will be used against you later in court. Although there are just three (3) standardized tests approved by the National Highway Transportation Safety Administration (NHTSA), officers may ask you to perform any number of variations, such as counting backwards, reciting the alphabet, or finger dexterity exercises. Although you may be tempted to try, you should respectfully decline ALL tests.
4. Politely decline if asked to perform a portable “breath test” or PBT. There are no DMV consequences to refusing this test. We will discuss the “willful refusal” of the breathalyzer at the station shortly. At this point, you will be arrested and handcuffed. Try not to worry. This was going to happen whether you participated or not. At least now, your lawyer has more because the State has less.
5. The choice of whether to voluntarily submit to breath testing has been statutorily negated by changes in NC DWI law. There really is no choice any longer. If you attempt to exercise your former Constitutional right under the 5th Amendment, the State can now take you against your will and forcibly draw your blood – without a warrant. And, because of the reported problems and backlogs associated with the State Crime Laboratory in Raleigh, the legislature changed DWI law to allow testing at any certified, licensed health care facility. And finally, any refusal at this stage of the investigation has immediate DMV consequences as your driver’s license (NC residents) or driving privileges (out of state guests) will be revoked for one (1) year.
6. Prior to giving a breath sample, the officer will explain your right to call a witness and the police must wait up to thirty (30) minutes before proceeding. Here, you must make a judgment call based on human physiology. Ingested alcohol takes time to absorb from the digestive tract into the bloodstream, or “get into your system.” Alcohol levels increase over a period of time, peak, and then decline to baseline as your body processes it away.
To further explain… I can drink a shot of my favorite liquor and immediately give a breath sample that should show 0.00%, if the machine is working properly. Why? Alcohol starts in your stomach where some portion is transferred into the bloodstream through the stomach lining while other amounts are absorbed by food and passed through into your intestines. People who eat while drinking will absorb alcohol more slowly and have a lower BAC level. Starchy foods, like French fries, are the best at keeping your BAC level lower. This is why people who “drink on an empty stomach” are affected by alcohol more quickly and more intensely.
So, your calculation as to when to submit to breath testing will vary depending on when you had your last drink, glass of wine, or beer. If close to the time of your arrest, you perhaps should decline the witness option and take the test promptly. The alcohol will not have had sufficient time to affect your BAC level. On the other hand, if you stopped drinking early in the night, you should wait the full 30 minutes to give your body time to process out more alcohol.
Of course, if you are truly impaired, these types of mental assessments are not going to be practical or really matter in the end. Thirty minutes may decrease the BAC by 0.01 or 0.02%, but not much more. This strategy is only really helpful for those individuals who are at or close to the current “legal limit.”
7. If charged, contact a NC DWI defense attorney. DWI is a serious charge with serious consequences. Again, the DWI attorneys of Robert J. Reeves P.C. are here to help you if you need us. But we sincerely hope that you never will. To avoid a DUI, you simply have to wait until you get home to drink if you are going to get behind the wheel. Take a cab. Call Uber. Ask a friend or family member to come get you. But do NOT drive if you have been drinking. “Feeling” fine is not the best way to determine if you are safe to drive. And, as we mention throughout this website, you will still be prosecuted even if you “blow” below 0.08. Enjoy your night out with friends. Have a great time. But wait until you get home to finish the evening.