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How Can I Challenge a DWI in North Carolina?


A conviction on a charge of driving while impaired (DWI) can have serious, long-term implications. It will become part of your driving record and may even cause you to lose your driver’s license and serve time in jail. You may also incur financial repercussions such as fines and higher automobile insurance rates. Fighting a DWI charge isn’t easy, but it can be done. Contacting an experienced Jacksonville DWI attorney is your first step in mounting a strong DWI defense.

Following Correct Procedures

Any defense against a DWI charge in North Carolina rests on whether the proper procedures were followed in the investigation that led to the arrest and impaired driving charge. There are three steps in the process police officers must follow.

DWI Stop

The police officer must have a valid reason, known as reasonable suspicion, for stopping the vehicle. In general there are two types of situations from which a DWI stop might arise. First, an officer might observe a violation of some other law such as speeding and stop the car for that reason. Then they might decide to investigate the driver for possible impairment. Second, and officer might observe driving characteristics that are not actually illegal but suggest that the driver is impaired. These include things such as weaving within a lane, making a wide turn, failing to accelerate when a light turns green, or the inability to maintain a constant speed (there are about 24 possible “clues” according to law enforcement). Then the police would stop the car on suspicion of impaired driving, even though they have not seen a clear-cut violation of the law.

It is important to distinguish between driving behaviors that are indicators of impairment and those that are not. For example, while the police can certainly stop someone for speeding, that is not generally an indication of impairment. A good DWI lawyer would argue that the fact that their client was speeding means nothing when it comes to the question of legal impairment.

Signs of Impairment

Once the police officer has pulled the vehicle over, he must observe the driver to determine whether he or she exhibits signs of impairment. Signs of impairment include the smell of an alcoholic beverage or marijuana, slurred speech of “mush mouth”, and confusion or slow responses. The officer may ask questions such as what time is it, can you count backwards, or can you recite the alphabet. They often will ask the driver to produce documents such as a license or registration while asking other questions to test whether they can divide their attention and do both at the same time.

Field Sobriety Tests

The third step is to perform pre-arrest screening tests known as Standard Field Sobriety Tests or SFSTs. There are three standard tests given to drivers to determine if the driver was impaired while driving. They include the following:

  • Horizontal Gaze Nystagmus (HGN) Test – The police officer looks for involuntary eye movement by using a pen or other small object that your eye can follow. Before administering the HGN test, the officer should check for equal pupil sizes and inquire about any medical issues that may impact the results of the test.
  • Walk and Turn Test – The police officer must provide instructions for the driver to walk on an imaginary line heel to toe for a total of nine steps before making a turn and walking another nine steps back. The instructions given by the officer should be clear and accurate. He should also inquire about medical conditions that would prevent the test from being performed accurately.
  • One Leg Stand Test – The driver must raise one leg six inches off the ground, point their toes and count aloud until told to stop. Again, the police officer should inquire about physical conditions that could prevent the driver from performing this test.

In addition, a portable breath test (“PBT”) may be used to determine if the person has consumed enough alcohol to be over the legal limit, though the results of a handheld breath test will not be admissible in court. It is important to remember that you have the right to refuse to take one or all of the above roadside DWI tests.

If you are arrested, you will likely be taken to the police station and asked to take another breath test there. Because North Carolina is an implied consent state you may refuse to take the breath test at the station but there will be significant consequences for your ability to drive if you do.

Challenging the Tests

The key to disputing a DWI charge often lies in whether the administration of the field sobriety tests was completed correctly. They are standardized tests, so they must be administered in a standardized fashion. Many officers have not received any significant training in the administration of SFSTs. As a result, they may give incorrect or confusing instructions or make invalid observations. This is particularly true of the HGN test. Note also that field sobriety tests cannot be “failed” as they are not pass/fail tests. While an arresting officer may claim that you failed the sobriety tests, the reality is that the court will make its own determination on how you did and what that means.

During all field sobriety tests, the officer is looking for clues to indicate the driver is impaired by alcohol and/or drugs. An experienced DWI attorney knows the correct instructions for the tests as well as the indicators the police officer should be using to determine if the driver is impaired. A DWI attorney can challenge the officer’s testimony regarding whether the driver appeared impaired if the correct procedures were not followed for the field sobriety tests. This would undermine the prosecutor’s case make it more difficult to prove the impaired driving charge.

Ultimately it often comes down to reasonable doubt. The prosecutor must prove your guilt to a legal certainty, meaning beyond a reasonable doubt. Reasonable doubt might exist in the way your sobriety tests were given or in how you performed them. It may exist in their observations of your driving and decision to pull you over. It may even exist in the accuracy of the breath test given at the police department. In addition, there are specific instructions that must be followed before administering the EC/IR-II test to determine BAC after a DWI arrest. If the procedures were not followed, the test results may not be admissible in court.

Hiring a Jacksonville DWI Attorney

If you’ve been charged with DWI in North Carolina, it’s imperative that you hire an attorney to represent you. You may have one or more valid legal defenses to an impaired driving charge. Just because you have been charged with DWI doesn’t me you should plead guilty and accept whatever punishment the court deems appropriate for your charge. You have the legal right to mount a defense to a criminal charge. You need to exercise that right by hiring a DWI attorney with the experience, skills, and resources necessary to aggressively fight for your right to a fair and just outcome.

The DWI attorneys of The Trevor J. Avery Law Firm can help you build a strong defense to your impaired driving charge. Our law firm represents clients throughout Duplin County, Onslow County, and the surrounding communities. Call our office at (910) 405-8459 or contact us online today for a free case evaluation.