DWI In North Carolina: Did You Know. . .

DWI in North Carolina:  What are the consequences of being charged/convicted of driving while intoxicated?  Can one successfully defend against a DWI charge at trial?  This Newsletter is designed to shed some insight surrounding DWI. But the information contained herein is for general and educational purposes only and should not be taken as legal advice.  PLEASE REMEMBER: if you need legal advice about  your specific situation, I encourage you to consult a qualified legal professional in your area.

Q: What is a DWI in North Carolina?

A: “DWI” is short for “Driving While Impaired.”  A DWI offense may be committed when a person drives a vehicle in a public area while under the influence of an “impairing substance.”  A DWI offense is also committed if a driver has a blood alcohol concentration level of 0.08 or more at the time he/she is driving a vehicle in a public area.

In addition, it is unlawful for a person younger than 21 years old to drive a motor vehicle on a highway or public vehicular area while consuming alcohol or at any time while he has alcohol or a controlled substance in his body.  But a person under the age of 21 does not violate the DWI law if he/she is found to be driving under the influence of a controlled substance that was lawfully obtained and taken as prescribed.

Q: Is a DWI Charge Classified As a Felony or Misdemeanor?

A: DWI charged under N.C.G.S. § 20-138.1 is classified as a misdemeanor (and not a felony). Upon conviction or guilty plea the Defendant is subject to a sentencing hearing to determine his/her punishment.

Q: What Are Some Penalties for a DWI Conviction?

A: There are 5 Punishment Levels for DWI.  Each level is determined by a list of mitigating and aggravating factors, including blood alcohol concentration, or previous DWI convictions, etc.  The following are the 5 punishment levels:

Level 5 DWI Punishment (Least severe) includes: i) Driver’s License Suspension: 1 year (30 days without restricted driving privileges), ii) Fine: up to $200; iii) Jail: 24 hours (minimum) to 60 days (maximum); iv) Community Service: 24 hours;  and v) Possible substance abuse assessment and  education or treatment.

Level 4 DWI Punishment Includes: i) Driver’s License Suspension: 4 years (no restricted driving privileges if 2nd offense within 3 years of 1st offense); ii) Fine: Up to $500; iii) Jail: 48 hours to 120 days; iv) Community Service: 24 hours; v) Possible substance abuse assessment and education or treatment.

Level 3 DWI Punishment Includes: i) Driver’s License Suspension: permanent revocation (if prior within 5 years of 3rd offense); ii) Fine: Up to $1,000; iii) Jail: 72 hours to 6 months) iv) Community Service: 72 hours or 90 day license forfeiture in lieu of jail time; v) Possible substance abuse assessment and education or treatment

Level 2 DWI Punishment Includes: i) Driver’s License Suspension: permanent revocation (if prior within 5 years of 2nd offense); ii) Fine: Up to $2,000; iii) Jail: 7 days to 12 months; iv) Community Service: 72 hours or 90 day license forfeiture in lieu of jail time; v) Substance abuse assessment and education or treatment

Level 1 DWI Punishment (Most Severe) Includes: i) Driver’s License Suspension: permanent revocation (if prior within 5 years of 2nd offense); ii) Fine: Up to $4,000; iii) Jail: 30 days to 24 months; iv) Community Service: 72 hours or 90 day license forfeiture in lieu of jail time; v) Substance abuse assessment and education or treatment.

Q: Am I Breaking the Law if Drink a Glass of Wine at I Dinner and Drive Home?

A: It is unlawful for drivers 21 years old or younger to drive a motor vehicle on a public roadway while impaired as a result of consuming alcohol or any controlled substance.   Any such person convicted of this offense will be subject to revocation of his/her driving privileges for 1 year.

On the other hand, for drivers over the age of 21, the legal blood alcohol concentration limit is 0.08; the results of a chemical analysis test shall be deemed sufficient evidence to prove that such person had been driving while impaired during the relevant time period.

Q: Will I lose My Driving Privilege if I am Convicted of DWI?

A: Drivers convicted of DWI may face revocation of his/her driving privilege. If one’s driving privilege is revoked, they may still be entitled to a limited driving privilege, which could allow him/her to drive to/from their place of employment.

Q: If My Driving privilege is suspended for DWI Arrest/Conviction, Can I Get It Reinstated?

A: Limited driving privileges are issued in a court’s discretion for good cause shown.  A limited driving privilege authorizes one with an otherwise revoked driving privilege to drive for essential purposes related to any of the following: 1) Her employment; 2) The maintenance of her household;   3) Her education; 4) Her court-ordered treatment or assessment; 5) Community service  ordered as a condition of the person’s probation; 6) Emergency medical care. But not every person is eligible for a limited driving privilege.   A “limited driving privilege” is not only limited in scope; there is also an exhaustive requirement list that one must meet in order to receive such driving privilege.

Q: What Are the Consequences If I Refuse to the Chemical Analysis Test That Determines Blood Alcohol Concentration?

A: You have a legal right to refuse the chemical analysis test.  But the DWI offense is “an “implied consent law,” which means that when one applies for a North Carolina driver’s license, he/she implicitly agrees to drug and alcohol testing should a police officer suspect them of DWI.  Thus, if one refuses a breathalyzer test, it can result in an automatic one-year driver’s license suspension.  Also, a refusal may be admissible into evidence at trial.

Q: My Friend Drove My Car from the Restaurant While I was a Passenger and I Was Charged with Aid and Abet of DWI, but I Wasn’t Driving?

A: Under the common-law doctrine of aiding and abetting, a person is considered to be a principal to a crime when: (1) a crime is committed by another; (2) such person knowingly advises, instigates, encourages, procures, or helps the other person commit the crime; and (3) his/her actions or statements caused or contributed to the commission of the crime by the other person.   Thus, under the common-law doctrine of aiding and abetting, one can be found guilty of Aiding/Abetting DWI.  Persons convicted of DWI under the common law concept of aiding and abetting are subject to Level 5 punishment.

 Q: What Are Some Defenses to a DWI Charge?  

A: Defenses to a DWI charge vary depending on the circumstances that govern one being charged with such offense.  That said, the following are some defenses to DWI:

“Corpus Delicti” Rule – A Defendant’s admission to an element of the DWI offense without corroborating evidence is not enough to prove that specific admitted element.  For example, in DWI cases the element of “driving” must be proven by independent evidence that the accused was driving rather than just relying on the accused statements that he/she was driving.

Blood Tests – A blood test used to determine whether the accused was impaired for purposes of DWI must be administered before any other substance is injected into the body of the accused.  Also, such a blood test must be taken during the relevant time period.  For example, a blood test administered 3 1/2 hours after the accused was arrested was found to be taken outside of the “relevant time period” and, thus, excluded at trial.

Chemical Analysis Test – Persons accused of DWI are entitled to receive his/her rights orally and in writing prior to being given the Chemical Analysis test.

• “Anonymous Tip” – A tip from an anonymous caller is an insufficient basis to authorize law enforcement to stop a driver suspected of DWI.  An “anonymous tip” under these circumstances must specifically indicate that the driver engaged in criminal activity.

• “Knoll” Motion – A person accused of DWI must be released from custody before a substantial period of time has lapsed so that the accused may gather evidence to support his/her defense.  Holding the accused in custody for a substantial time period after being arrested on a DWI charge denies him/her of the ability to gather evidence during the relevant time period.  Under such circumstances, the DWI charge may be dismissed.

DWI “Checkpoints” – Law enforcement officers have a right to pursue any vehicle that turns around to avoid a DWI checkpoint in order to reasonably determine why the motorist turned the other way.  That said, a motorist stopped under these circumstances may prevail if he/she can show that they “were not aware of [the DWI checkpoint] by observation of any sign marking or giving notice of the checkpoint.”

Confronting Witnesses Against You – Evidence presented during a DWI trial may be inadmissible and, thus excluded, if it is presented in court without the witness responsible for developing such evidence.

 Hunt Law, PLLC © All Rights Reserved 2013

 

“IS CHILD SUPPORT DISRUPTING YOUR SLEEP?”

Child Support in North Carolina:  It causes confusion, agitation and pressure on parents responsible for paying or in need of child support.  This Newsletter is designed to answer some questions about the administration of child support in North Carolina. But the information contained herein is for general and education purposes only and should not be taken as legal advice.  PLEASE REMEMBER: if you need legal advice about  your specific situation, I encourage you to consult a qualified legal professional in your area.

Q: What is Child Support?

A:  Child support is a monetary payment usually made by a noncustodial parent to the custodial parent to offset the reasonable needs and expenses of the parties’ minor children. Child Support may be established by a voluntary support agreement, or a civil court action.

Q:  Who is responsible for paying Child Support?

A: In most cases, both parents (father and mother) are liable for financially supporting their minor children.  In practice, though, the noncustodial parent usually pays child support to the   custodial parent.  Consequences for willfully failing to pay court-ordered child support may include: jail time, interception of tax refund, suspension of one’s driving privileges, or denial/revocation of one’s passport.

Q: How is Child Support Calculated?

A: Child support is determined by using the NC Child Support Guidelines.  The guidelines

calculate child support based, in part, on the parents’ gross monthly income, their work relatedchildcare costs and the healthcare insurance costs for the minor children at issue in the litigation.

On the other hand, a court may deviate from the child support guidelines if both parents’ gross monthly income exceeds $25,000 dollars.  A court may also deviate from the support guidelines if an award based upon said guidelines:  i) would not meet or exceed the children’s reasonable needs and expenses; or ii) would otherwise be unjust or inappropriate under the circumstances.

Q:  How is A Parent’s “Income” Determined?

A: Child support is calculated by using the “gross income” of the parents.  “Gross Income” is defined, in part, as any  actual income received from “any source, including income from employment or self-employment (salaries, wages, commissions, bonuses, dividends, severance pay, etc.), ownership or operation of a business, partnership, or corporation, rental of property, retirement or pensions, [post-separation support,] alimony or prizes, unemployment insurance benefits, disability pay and insurance benefits, gifts, etc.”   Also included in a parent’s “gross income” are  any child support payments received by the parent for children other than those minors for whom child support is being sought.  Conversely, a parent from whom child support is being sought may have his/her “gross income” reduced by the child support amount that he/she is obligated to pay for any other children not included in the support action. Finally, certain public assistance benefits received by a parent involved in the child support action are excluded when determining such parent’s “gross income.”

Q:  How is a Child Support Order Enforced?

A:  Child support orders are enforced through the contempt powers of the court.  If it is determined that the parent   ordered to pay child support willfully fails to make such payments, he/she may be held in either criminal and/or civil contempt.  Criminal contempt exposes the offending parent to a specific jail term, usually 30 days; but civil contempt exposes such parent to a potentially longer jail term.  A parent held in civil contempt for willfully violating a child       support order may be held in jail until he/she purges the contempt by paying the unpaid child support as determined by the court.  A parent jailed, though, under such circumstances—e.g. civil contempt—may not be held for more than 90 days without a review hearing.

But a parent subjected to criminal or civil contempt may adequately defend such charge by showing, among other things, that he/she had an inability to comply with the court order or that the court order was invalid   during the time period it is alleged that he/she willfully failed to comply with it.

 Q:  Can I Modify Court Ordered Child Support/When does Child Support Terminate?

A: Parents seeking to modify child support have the burden of proving since the entry of the existing child support order that there has been a substantial change in circumstances that warrants a modification.  Usually a “substantial change in circumstances” can be shown where i) there is at least a fifteen (15) percent change in either parent’s income ; or ii) that there is at least a fifteen (15) percent difference between the existing child support award and the award based upon the parents’ current gross monthly income.

Moreover, a child support obligation usually ceases once the child either i) graduates high school; ii) has stopped attending high school; or iii) has reached the age of 18 years old, whichever is the later date.  But the parent paying child support must petition the court to terminate the existing child support obligation. And he/she continues to be responsible for any child support arrearage that accrued up until the time the child support obligation is terminated.

Q:  Can I Recover Attorney’s Fees?

A:  Parents seeking child support may recover reasonable attorney fees that were incurred as a result of bringing the child support action.  An award of reasonable attorney fees is based upon whether the parent seeking attorney fees:  1) is an interested party to the litigation and is acting in good faith; 2) that he/she has insufficient means to pay the cost of bringing the child support action; and 3) the parent against whom the action is brought refused to pay child support.  But if child support and custody claims are coupled together, the complaining parent does not need to show that the other parent refused to pay child support in order to recover reasonable attorney fees.

 Hunt Law, PLLC © All Rights Reserv2013

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