It wasn't so long ago that cops would let drivers off with a warning. "Been drinking tonight?" the police officer says. "Go home. Sleep it off." It's not like that today. Drivers face criminal charges and harsh punishment. In some states, drivers face punishment even though they are below the national .08 blood alcohol limit and are arguably less dangerous than speeding and texting drivers.
If you've been arrested for DWI, over-criminalization means that you need to do something to protect your rights and your future. Call Roberts Law Group, PLLC at 866-630-2389 for a free consultation.
A Brief History of Drunk Driving
"The 2000 federal law that encouraged local officials to lower the legal threshold for drunken driving [...] will have little effect on public safety. Instead, it shifts law enforcement resources away from catching heavily intoxicated drunk drivers, who pose a risk, to harassing responsible social drinkers, who don't." - Radley Balko, " Back Door to Prohibition"
Criminalization of drunk driving seems to have crossed a political divide from which we cannot come back, so much so that writers like Radley Balko (see the quote above) believe that prohibition has effectively returned to haunt us.
Prohibition under the Eighteenth Amendment
"Temperance" is defined as moderation and self-restraint. Historically, temperance meant total abstinence from drinking. Anti-alcohol sentiment ultimately came to a head when temperance was enshrined in the U.S. Constitution under the Eighteenth Amendment of 1920. As Balko writes in his Policy Analysis for the Cato Institute, thus began America's "catastrophic failure" of Prohibition.
Over-Criminalization of Drinking and Driving
In the decades following the end of Prohibition, we seem to have forgotten the lessons of catastrophic failure that result when politicians and prohibitionists try to control certain "vices."
It's good policy, generally, to try and prevent alcohol-related traffic accidents-like criminal charges for reckless driving-but the ever-broadening criminalization of driving under the influence of alcohol has an extremely negative effect on too many people.
"Perhaps the boldest front," Balko writes, "on which the neoprohibition effort has been moving is drunk driving - or, more accurately now, drinking and driving," by which Balko means that you don't really have to be certifiably intoxicated (and pose real danger to other drivers on the road) in order to be charged with DUI/DWI.
What is DWI?
"Americans take 233 billion trips in cars each year. Of those, about one out of every 2,000 trips are taken by those who are driving under the influence of alcohol." - Mothers Against Drunk Driving: About Drunk Driving
There are two basic definitions for drunk or impaired driving.
- DWI = Driving while intoxicated.
- DUI = Driving under the influence.
We often use these terms interchangeably. If one out of every 2,000 car trips is taken by someone driving under the influence of alcohol, like the MADD.com quote says above, does that mean the driver is criminally DUI?
Probably not, but that doesn't stop organizations like MADD from calling this drunk driving.
DWI Law in North Carolina
It doesn't matter what you call it, DWI or DUI - if you've been charged with drunk or impaired driving, whether from alcohol or drugs, you're facing one of America's most politicized crimes.
It's just as bad to be charged with DUI in North Carolina - home state of Roberts Law Group, PLLC - as it is about anywhere else. But each state has its own laws. In North Carolina, you are subject to a police investigation to determine whether you are appreciably impaired by alcohol.
Driver's License Suspension: You do not have to take any field sobriety test - don't have to provide a breath sample on the road or at the police station - but you will be given notice that your driver's license will be suspended for a year if you willfully refuse testing.
So you'll lose your license for a year no matter what happens in your DUI case, even if you are found not guilty after trial, should you be found to have willfully refused. In other words, you have a choice in North Carolina: Refuse to incriminate yourself, but lose your license, even if the cop was wrong in pulling you over in the first place, or incriminate yourself and risk a possible guilty plea.
Forced Blood Draws: Willful refusal brings up another issue. If you refuse testing, in addition to getting your license suspended for a year, the police officer can seek a search warrant issued by a magistrate, which would allow them to take a blood sample from you with or without your consent.
DWI Law Across the Country
The individual states, in one way or another, try to catch and punish people for drunk driving. They use a variety of methods and tools at their disposal. In addition to driver's license suspension and forced blood draws, here are some of these methods:
Going around the warrant requirement: In Minnesota, for example, the court of appeals in that state recently ruled that cops could test drivers without a search warrant. The Fourth Amendment says that warrantless searches are generally unreasonable, which makes this particular ruling very troubling. Will other states follow suit?
DWAI: Some states can charge you with an alcohol-related traffic violation even if you are below the .08 blood alcohol limit but above .05 - often called DWAI, or driving while ability impaired. It would seem as though we're heading toward zero tolerance.
Ignition interlocks: A judge may order you to install and maintain the ignition interlock device on your car, which prevents the car from starting if there is any amount of alcohol in your system. Some states require these even for first-time offenses.
Police checkpoints/roadblocks: Do checkpoints get drunk drivers off the road? There is some debate on that. According to Radley Balko with Reason.com, checkpoints are " little more than revenue generators for local governments." Some states allow checkpoints; others do not.
DWI and the Fourth Amendment
" The threat posed by drunk driving comes not from drinking per se but from the impairment drinking can cause. That fact has been lost in the rush to demonize people who have even a single drink before getting behind the wheel (exemplified by the shift in the government's message from 'Don't Drive Drunk' to 'Don't Drink and Drive') - Radley Balko, Abolish Drunk Driving Laws
The Fourth Amendment
The Fourth Amendment reads:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
Unreasonable searches and seizures: The Fourth Amendment doesn't say that all police searches are unreasonable. It means that searches done without a valid search warrant and without probable cause are unreasonable. Evidence obtained against a citizen in such a way should be thrown out. There are exceptions, however, to the Fourth Amendment, such as emergencies and (arguably) DWI.
Implied consent: If you drive on the road, you are presumed to have consented to the DWI laws. This is what is called "implied consent." You are subject to an investigation - field sobriety tests, breath tests, etc. - to determine whether you are appreciably impaired by alcohol.
States try to force your consent from you in a variety of ways. In North Carolina, for example, you lose your driver's license for a year if you "willfully refuse" to consent to field sobriety tests or the breath test (Breathalyzer).
What Makes DWI Special?
If DWI law is "special," it's because lawmakers and others seem to believe that cops shouldn't be subject to the Fourth Amendment requirement against unreasonable search and seizure. In other words, DWI is becoming an "exception" to the Fourth Amendment's warrant requirement.
DWI is a highly politicized crime in the U.S. Mothers Against Drunk Driving, or MADD, is a political powerhouse. Some of its position statements seem to imply that one drink is one too many, without regard to who truly poses a risk to others on the road.
While it's true that alcohol-related injuries and deaths are tragic and should be prevented, it's also true that not every driver with a couple of drinks in their system is a dangerous driver worthy of a cop's time and attention. "If lawmakers are serious about saving lives," Balko writes on Reason.com, "they should focus on impairment, not alcohol."
We should not weaken the Fourth Amendment - and overly punish drivers in the process - in service of DWI laws that arguably do nothing to make our roads safer.
Reckless Driving vs. Drunk Driving
"If our ultimate goals are to reduce driver impairment and maximize highway safety, we should be punishing reckless driving. It shouldn't matter if it's caused by alcohol, sleep deprivation, prescription medication, text messaging, or road rage. If lawmakers want to stick it to dangerous drivers who threaten everyone else on the road, they can dial up the civil and criminal liability for reckless driving, especially in cases that result in injury or property damage." - Radley Balko, Abolish Drunk Driving Laws
Shifting the focus to reckless driving-instead of drunk driving-sounds like a fair bargain. It's fair even for people who make their living handling DWI cases-yes, including criminal defense lawyers like me.
Because people are still going to do dangerous things behind the wheel. They're going to speed, text, and, yes, drive drunk. Dialing up the civil and criminal liability for reckless driving, as Balko writes, won't result in any less work. But it might solve the underlying problem: bad driving that ends in someone getting hurt or killed.
A closer look at 'reckless driving'
In North Carolina, reckless driving is wanton (deliberate and unjustified) disregard of the rights or safety of others. Reckless driving is driving without caution and at a speed (or in a manner) that puts other people in danger.
Let's take speeding.
Driving at 90 mph in a residential neighborhood probably qualifies as reckless driving. If the driver hits and injures a child on a bike, was his decision to drive so fast any less "criminal" than the fact that he has a few beers in his system? Would the answer change if he had no alcohol in his system whatsoever?
The point is that criminalizing reckless driving-as opposed to drinking and driving-punishes the root cause of fatal crashes: bad driving. It seems possible to have a few drinks, drive, and do so just as safely as anyone else, without putting other peoples' lives at risk.
Of course, the more you have to drink, the less safe you are as a driver, until you cross that line into being reckless.
The truth about drinking and driving
The truth seems to be that criminalizing drinking and driving as a separate crime does very little to solve the underlying problem, which is people who are hurt or killed in crashes. As Balko writes, it shouldn't matter what caused the crash. The only thing that matters is that the driver made the wrong decision.
In North Carolina, you cannot reduce a DWI charge to reckless driving. It's not a "lesser included" offense. You either win your DWI case or you don't. But, to me, reckless driving is reckless driving. Period. Getting caught in a DUI checkpoint-checkpoints that seem to be little more than revenue-generators for local government-with your blood alcohol content barely over the legal limit of .08, well, that's something else entirely.
In 2013, the Raleigh P.D. got a $525,000 federal grant from the National Highway Traffic Safety Administration for help with enforcing DWI law, as Anne Blythe (http://www.newsobserver.com/2014/02/05/3594668/nc-court-cases-help-set-the-framework.html) reported for the News Observer.
One officer said: "Hopefully, there are people out there who - when they realize we're doing these checkpoints - are deterred."
The problem is that the jury's still out on whether DUI checkpoints actually deter drunk drivers, more so than they generate revenue (from unrelated charges) for the police. $525K is a lot to stake on "hope."
Deterrence: The so-called purpose of DUI checkpoints
Blythe reported that at one checkpoint in Wake County, which lasted for roughly two early-morning hours, more than 40 cops brought 40 charges against North Carolina drivers. Only 18 of these drivers were actually charged with DUI. Others presumably caught other charges.
That means there's a lot more happening at DUI checkpoints than finding drivers who are too drunk to drive and pose a danger to others on the road.
As Radley Balko writes in "Back Door to Prohibition" ( PDF file), DUI checkpoints are about a lot more than just deterrence. Checkpoints sweep everyone up in the rug. "[A] motorist could have a beer or two, be well under .08, drive safely and responsibly, and still be subject to arrest for 'driving under the influence' and all of the embarrassment, public disgrace, and damage to reputation that come with a criminal charge of mixing alcohol with driving."
Even police officers themselves seem to believe that "saturation patrols"-many patrolling cops out searching for weaving and speeding drivers in high-risk areas-are more effective than DUI checkpoints. "Many law enforcement agencies," Blythe reported, "tout more success with the targeted patrols than they do at sobriety checkpoints." That's because cops were out in their squad cars actually looking for speeding and weaving drivers, drivers who, if you call it reckless driving, pose real danger.
Are DUI checkpoints legal?
North Carolina currently allows DUI checkpoints. Lawmakers in the state have authorized checkpoints by statute. They're conducted weekly by one of the many city and state police agencies. According to the Governors Highway Safety Association, North Carolina is in the majority. 38 states currently allow DUI checkpoints. 12 states do not. Many of those states say that DUI checkpoints are illegal under either state or federal constitutions.
In those states that have banned DUI checkpoints, the general argument is the classic and trustworthy one - that under the Fourth Amendment cops must have reasonable suspicion to pull someone over, probable cause to make an arrest, and a warrant to conduct a search (like a blood test for alcohol content).
DUI checkpoints run right over Fourth Amendment protections, even for those drivers who, as Balko writes, are driving safely and responsibly.
"First-time offenders are rarely first-time drunk drivers. Conservative estimates show that a first-time convicted [...] offender has driven drunk at least 80 times prior to being arrested." - Mothers Against Drunk Driving
The website PolitiFact.com rates MADD's claim as true - that the majority of drunk driving deaths and injuries are caused by offenders with no prior convictions, and who have driven drunk at least 80 times prior to arrest.
But there's a big problem with the statistic.
As PolitiFact acknowledges, "the statistic focused on drivers who had been drinking, a somewhat broader category than the 'drunken drivers' in MADD's claim."
In other words, having a beer or two-and being well under the legal limit of .08-would qualify as "driving drunk." Clearly, it does not, but that is what supporters of harsh DUI laws want us to believe.
What is a first-time DUI offense?
A first-time offense is what it sounds like: the first time you've been stopped and arrested for DUI. The potential punishment for a first-time offense is generally lower.
In North Carolina, first-time DUI is usually a misdemeanor.
Punishment may include:
- Immediate driver's license suspension for 30 days
- Court fine up to $200
- Possibility of jail time (24 hours to 60 days)
- Hidden costs of increased insurance premiums and a criminal record
On a first-time DUI, many drivers are able to obtain limited driving privileges for school or work, as well as probation with the requirement of substance abuse assessment, but this is not a guarantee.
And it's clear that even though a first-time DUI is usually a misdemeanor, the potential punishment and aggravation-especially when you consider the impact on your future in terms of career and educational opportunities-is nothing to scoff at.
Is first-time DUI just as bad as repeat DUI?
As Radley Balko writes in "Back Door to Prohibition" ( PDF file):
"What we have are legal trends that are simultaneously pushing to apply drunk driving laws to lower and lower levels of intoxication, fewer constitutional safeguards for drunk driving suspects, and stricter sentencing. [...] The campaign against drunk driving is no longer a campaign against drunk driving. It has morphed into a campaign against drinking."
The law does not punish most first-time DUIs as harshly as repeat DUIs, especially repeat DUIs with injuries or deaths. This is because most first-time DUI arrests don't involve a car wreck.
Yet supporters of zero tolerance want us to think that first-time DUI is just as bad as repeat DUI, as though first-time offenders are all repeat offenders, regardless of the amount of alcohol in their systems.
To make matters worse, in North Carolina, there really is no "first-offender program," where you can cop to a lesser offense and keep the DUI off your record. If you lose your case against the DUI charge, you will wear it like a badge the rest of your life.
Ignition Interlock Devices
What is the ignition interlock?
The ignition interlock stops your vehicle from starting if you've been drinking. LaDoris Cordell, a state court judge who was hit by a drunk driver in 1984, wrote on Slate (" Baby, You Can't Drive Your Car") that she became the first judge in her state to order the driver to use an ignition interlock in a DWI case.
"Today," Cordell wrote, "almost all 50 states have laws permitting the imposition of ignition-interlock devices as sentencing alternatives for drunken drivers."
How does the ignition interlock work?
The ignition interlock is similar to a Breathalyzer. Typically installed in the glove compartment of the car, it is hardwired to the ignition system, and will prevent the car from starting if it registers blood alcohol content on the would-be driver's breath. There are also rolling tests, in which the driver must blow into the device while traveling. If the driver fails, the lights may flash and the horn will sound.
The ignition interlock records pass/fails. Probation officers and judges may review this data - and evidence of attempted drinking and driving could lead to enhanced punishment.
How does the ignition interlock affect drivers?
If ordered by a judge to use the ignition interlock, you get one from an authorized dealer. North Carolina dealers include Alcolock, Smart Start, and Monitech. You must pay both the installation fee and the monthly maintenance fee, which in some cases can be a significant financial burden on the driver.
Aside from ongoing fees, the ignition interlock brings embarrassment and stigma to the driver, an obvious red flag that you were convicted of DWI.
What types of cases in North Carolina require the ignition interlock?
In general, high blood alcohol content (.15 or higher) and/or a prior DWI conviction (in the past 7 years) will mean that you must install and maintain the ignition interlock device on your car or truck.
Zero-tolerance policy for underage drinkers and drivers
In the North Carolina Driver's Handbook ( PDF file), the section on alcohol and the young driver spells out the consequences for underage DWI:
"If a driver who is less than 21 years old is convicted for an offense of driving with any amount of alcohol or drugs in his/her body, his/her license will be revoked for one year."
In other words, if you are under 21, just one drink or shot can mean DWI.
Driver's license revocation for one year
Underage DWI can lead to a one-year driver's license revocation, but that's not all. These alcohol-related infractions also cause one-year revocation, including:
- Trying to buy or actually buying alcohol
- Aiding and abetting, i.e. helping another underage person in buying alcohol
- Using a fake ID or another person's driver's license as ID
- Letting an underage person use your ID to buy alcohol
- Actually giving alcohol to an underage person
As you can see, all of this adds up to zero-tolerance for underage drinkers when it comes to driving privileges - in addition to the usual consequences of DWI, which may include the ignition interlock, jail time, increased insurance rates, a criminal record, and impact on a young person's job and school prospects.
Adult drivers vs. underage drivers
The limit for adult drivers (over 21) for blood alcohol content is .08. By contrast, the limit for underage drivers is .00. In other words, .01 is too much for underage drivers, because North Carolina is a zero-tolerance state.
And if the underage driver refuses the breath test after being pulled over or caught in a DUI checkpoint, that also means driver's license revocation. Besides, as spelled out in the North Carolina Driver's Handbook, you can be convicted of DWI in two ways:
- Proving that you were "appreciably impaired" by alcohol or drugs, which does not require a showing of blood alcohol content or other test results
- Proving .08 or more in blood alcohol content (.04 for commercial truck drivers)
DWI Law in North Carolina
"Everyone's driving is impaired at a blood alcohol concentration, or BAC, of .08 percent, but many people are affected at much lower levels. Research shows that the risk of being involved in a crash increases when the alcohol level is .05 percent, and at .08 percent the risk of causing a fatal crash is even greater." - North Carolina Health & Human Services
North Carolina Safe Roads Act of 1983
It doesn't take a lot to drink to get to .05 percent.
Even though the legal limit on blood alcohol content is .08 percent nationwide, there is now just one alcohol-related driving offense in North Carolina-"Driving While Impaired-DWI"-which allows prosecutors to charge drivers with DWI even if they're under .08.
This handbook http://www.ncdhhs.gov/mhddsas/providers/DWI/ADETSProviders/alcoholandthelaw.pdf), provided by North Carolina Health & Human Services, claims that "many people are affected [by alcohol] at much lower levels" than the .08 limit. State lawmakers apparently believe that any amount of drinking and driving is a criminal act. That's why they chose to give North Carolina prosecutors the power to obtain a DWI conviction based on "appreciable impairment" alone.
Under the Safe Roads Act, prosecutors do not necessarily have to prove that your blood alcohol content was above the legal limit of .08. If you were appreciably impaired, that could mean a conviction.
What is appreciable impairment?
Case law holds that appreciable impairment means that your impairment is "noticeable" and "measurable" ( State v. Harrington ). But what does that mean? In court, it doesn't take much for a cop to testify that the level of your impairment was noticeable and measurable enough to justify the DWI charge.
The court in Harrington refused to draw a bright line rule for appreciable impairment. It refused to say what alcohol level would or would not constitute appreciable impairment or gross impairment. In doing so, it gave considerable weight to the arresting officer's subjective evaluation of the driver's condition.
Appreciable impairment is, essentially, what the arresting officer says it is. If you do not pass the roadside sobriety tests-which are notoriously hard to pass even for a completely sober person-that could be enough for a DWI charge.
And if the officer says you were appreciably impaired, that's what the jury will hear. Blood alcohol content doesn't particularly matter. Being below the legal limit doesn't particularly matter, from the perspective of a prosecutor going after a conviction.
What's stacked up against you
Despite a prosecutor's ability to convict based on appreciable impairment alone, it is better (for prosecutors) to have hard evidence. To that end, North Carolina police and prosecutors have a variety of tools at their disposal, including:
- Driver's license revocation: The DMV will automatically revoke your driver's license for 12 months for your "willful refusal" when asked to submit to a breath or blood test (even if you're found not-guilty of DWI)
- DUI checkpoints: North Carolina allows road blocks, or DUI checkpoints, conducted weekly by various city and state police agencies
And if you're convicted of a second DWI offense, North Carolina law requires jail time.
Types of DWI Offenses in North Carolina
"The bottom line: Never drive after drinking any amount of alcohol!"
That's a quote from the North Carolina Department of Public Safety ( Information Concerning Alcohol and Driving While Impaired). Granted, DPS was talking about the potential consequences of getting into an alcohol-related accident, but if you read between the lines, you find that any amount of drinking and driving is a crime - not just drunk driving - if the government got its way.
The presumption is that you're going to cause a fatal or serious car accident because you've had something - anything - to drink. Under this logic, your actual blood alcohol content makes no difference. It could be .01, .05, .08, or higher. The bottom line, apparently, is that you shouldn't drink and drive, period.
DPS says you should never drive after drinking any amount of alcohol because of the potential consequences, which include vehicle forfeiture (for repeat DWI) and thousands in fines. But, in fact, under North Carolina's Safe Roads Act of 1983, there is just one DWI offense in North Carolina, with five different levels depending on the facts and circumstances of the individual case.
These levels range from 1 to 5, from "most" serious to "least" serious.
Level 5 ("least" serious)
- Potential fine: $200
- Minimum jail time: 24 hours
- Maximum jail time: 60 days
- Suspended sentence available with 24 hours jail time, 24 hours community service, and no driving for 30 days
- Potential fine: $500
- Minimum jail time: 48 hours
- Maximum jail time: 120 days
- Suspended sentence available with 48 hours jail time, 48 hours community service, and no driving for 60 days
- Potential fine: $1,000
- Minimum jail time: 72 hours
- Maximum jail time: 6 months
- Suspended sentence available with at least 72 hours jail time, 72 hours community service, and no driving for 90 days
- Potential fine: $2,000
- Minimum jail time: 7 days
- Maximum jail time: 12 months
- Suspended sentence not available
Level 1 ("most" serious)
- Potential fine: $4,000
- Minimum jail time: 30 days
- Maximum jail time: 2 years
- Suspended sentence not available
You've Been Arrested. What's Next?
Radley Balko, in " Back Door to Prohibition," quotes the journalist H.L. Mencken, who wrote during the Prohibition Era:
"Five years of Prohibition have had, at least, this one benign effect: they have completely disposed of all the favorite arguments of the Prohibitionists. None of the great boons and usufructs that were to follow the passage of the Eighteenth Amendment has come to pass. There is not less drunkenness in the Republic, but more. There is not less crime, but more. There is not less insanity, but more. The cost of government is not smaller, but vastly greater. Respect for law has not increased, but diminished."
You could argue that as DWI laws get harsher in our society, there won't necessarily be less dangerous driving. The North Carolina Department of Public Safety says the bottom line is to never drive after drinking any amount of alcohol.
But is drinking and driving - any amount of drinking and driving - truly as dangerous as the government says it is?
Certainly, being heavily intoxicated behind the wheel is a dangerous thing. But so is texting and speeding. Drivers with a few drinks in their systems aren't necessarily more dangerous than those other drivers - yet they are subject to a separate, life-changing crime that has been politicized almost beyond the point of no return.
If you've been arrested, the next step is to obtain legal counsel and defend your rights.
Hire a DWI Lawyer: 866-630-2389
I am a contributing author of The Legality of Search and Seizure in DUI Cases. Having practiced criminal law for more than a decade, first as a prosecutor and now in criminal defense, I have a front-row seat to the ever-changing DWI law and its impact on people.
The punishment, as I wrote at the beginning of this article, often does not fit the crime. So in every case, I do everything I can to achieve the best outcome possible, whether avoidance, acquittal, reduction, or dismissal.
Request a free consultation at 866-630-2389 or use our online form.
North Carolina v. J.O.
Facing: 1 year in jail
Result: Case Dismissed
Our client lost her trial in District Court and received a 45 day jail sentence. She hired Roberts Law Group to help her with her Superior Court efforts. We argued a motion to dismiss based on an unconstitutional driver's license checkpoint and prevailed. Any evidence that flowed from the stop of her vehicle was ordered suppressed by the Judge. Case dismissed. Our client blew .13 on the EC-IR II breath device.