Articles Posted in DUI/DWI

Attorney J. Bradley Smith answering the question: “Do I have to perform the field sobriety tests when I’m pulled over for DWI in NC?”

A woman from Wilmington, NC has ben charged with drunk driving after she hit a child on a scooter earlier this month. The accident happened on the 400 block of Chattooga Place in Wilmington. Police say that an eight-year-old boy was riding in front of his house when the 20-year-old drunk driver approached in her vehicle, colliding with the boy.

Police say the accident was thankfully not at a high rate of speed, but did cause injuries to the child. Witnesses have revealed that the child was dragged nearly 45 feet before the young driver stopped her car. The child suffered a concussion as well as some cuts and bruises, but is expected to be fine.

According to North Carolina Highway Patrol, the driver blew a 0.08 at the scene of the accident. This was not the official BAC test; that test happened 90 minutes later and resulted in a 0.05 percent reading. Given her age, police say she was charged with DUI and consumption of alcohol by a person under 21.

If you are reading this you might say to yourself, “Wait a minute, I thought the legal limit was 0.08 and the driver’s 0.05 should be below the limit and thus not a crime?” If you were thinking that then you’d only be half right. First off, you are correct that the legal limit for impaired driving in North Carolina is 0.08 percent.

So then how is it right for the driver in this case to be charged with a DUI? Her age opened her up to the criminal charges. North Carolina is one of many states that follow a “zero tolerance” approach to drinking and driving for those under the legal drinking age. That means that any driver under 21 who is found to have any alcohol whatsoever in their system, even 0.01 percent, can still be charged with a DUI.

Continue reading

Attorney J. Bradley Smith answering the question: “What happens if I am convicted of a DUI or DWI in North Carolina?”

An interesting case in Oregon was recently decided that resulted in one person’s DUI conviction being thrown out and the case remanded for retrial. The defense was an unusual one, but it proved quite effective. In the case, James Newman’s defense attorneys successfully argued that their client was asleep at the time of the incident and thus could not be held legally responsible for his actions.

The case began back in 2008 when Newman was arrested in Portland for driving with a blood alcohol level greater than 0.08 percent. Newman was charged with drunk driving and had his case move on to trial where his attorney initially floated the idea that sleepdriving at the time of the arrest was the cause and not his client’s knowing decision to get behind the wheel intoxicated. The lower court judge refused to hear the evidence and convicted Newman of drunk driving. It was only after appealing the case to the Oregon Supreme Court that Newman had a chance to make his case.

Newman’s defense attorney claimed that his client had a lengthy history of sleepwalking and that driving is a similar symptom of his condition. The night of the arrest, Newman knew he would be drinking while out to dinner with friends and purposely chose to walk himself to the restaurant to meet his dinner companions. After dinner, his friends took him home where he says he went to sleep soon thereafter. It was later that night that Newman was spotted driving erratically by Portland police. Newman had his physician willing to testify about his condition and also to explain how a person who is in a sleepwalking or sleepdriving state is incapable of making voluntary decisions given that they are not actually conscious.

Continue reading

Attorney J. Bradley Smith answering the question: “Are breath test results always accurate?”

North Carolina Department of Transportation officials announced that nearly 1,800 drivers across the state were arrested over the July Fourth holiday period. DOT officials say the huge number of arrests were the result of an important collaboration between the Governor’s Highway Safety Program and state DOT.

The campaign was an attempt by law enforcement officials to make the Independence Day holiday a safe one for North Carolinians. Though police officers say they always watch for drunk drivers, the push was especially intense over the holiday weekend because the Fourth of July is often the deadliest holiday for motorists each year. According to AAA, 20 of the 36 traffic deaths that occurred last year in North Carolina were linked to alcohol use.

The cooperation between the two organizations, officially known as “Operation Firecracker,” led to 1,737 arrests in the days surrounding the Fourth of July. Though this is certainly an enormous number of arrests, it is actually less than the haul last year. DOT officials said last year law enforcement officers arrested just under 2,000 people on drunk driving charges over the July fourth period.

The huge number of arrests over the period is partially due to the increased enforcement efforts and partially due to the presence of alcohol at many summer holiday gatherings. Grilling and drinking often go hand-in-hand and many find a nice way to cool down during such hot weather is to have a cold alcoholic beverage. While this is perfectly fine, it’s critical that you make plans in advance to find a safe way home, either designating a person to stay sober and drive or calling a cab. Doing so avoids the big headache that follows a DWI arrest in North Carolina.

Continue reading

Attorney J. Bradley Smith answering the question: “Is there more than one way for police to convict a DWI?”

Officials in North Carolina say they have arrested a man and charged him with drunk driving after he crashed into four state trooper vehicles with a child in the back seat. The accident happened over the weekend at a NASCAR race and ended with Patrick Willis behind bars.

Police say Willis crashed into four patrol cars that were parked for traffic duty at the NASCAR race. The accident happened a little before 3:30 p.m. when Willis was exiting I-485 to U.S. 29 and failed to slow down at the top of the ramp. Police say he then smashed into a concrete curb at the top of the ramp and struck the vehicles as he crossed U.S. 29.

The accident left two troopers injured as they tried to escape the accident. Willis’ nine-year-old child was thankfully not injured in the accident. Police say when they ran to the car after the accident they were able to detect the smell of alcohol on Willis’ breath and asked him to submit to a breathalyzer test. Willis blew a 0.14 percent BAC, well above North Carolina’s legal limit of 0.08.

Police say the accident led to charges of DWI, reckless driving and child abuse. What many people may not understand is that in North Carolina it is seen as an aggravating factor if a drunk driver has a passenger in the car less than 18 years of age. North Carolina General Statutes § 20-179(c)(4) says that any driver that has a person under the age of 18 in the vehicle with them, is automatically looking at a Level 1 punishment. Level 1 punishment carries with it a maximum of 2 years in jail (and a minimum of 30 days), along with a fine of up to $4,000.00. Any person convicted of a Level 1 DWI sentencing in North Carolina is also unable to get a limited driving privilege during the period of their driver’s license revocation for the DWI.

Continue reading

Attorney J. Bradley Smith answering the question: “Should I ever plead guilty to a charge?”

A new push by the National Transportation Safety Board has some worried about a continuing decline in what amount of alcohol qualifies a driver as impaired. The NTSB recently released a recommendation that said all states, including North Carolina, should decrease the threshold for what constitutes drunk driving.

Currently, state law says that drivers with a 0.08 BAC or above can be charged with drunk driving. The NTSB says that it believes states should decrease the number to 0.05 percent BAC. The push is part of what the NTSB says is a larger goal of completely eliminating drunk driving in the United States, something it says is responsible for far too many deaths each year.

The NTSB estimates that by dropping the current BAC limit from 0.08 to 0.05, an additional 500 to 800 lives could be saved each year. While some have come out in support of the move, saying that it will help make roads across the state and the country safer, others, including our very own Brad Smith, have pointed out that any strict limit in BAC misses the point.

Applying a one-size-fits-all approach to drunk driving ignores the fact that each driver is different in how they process and cope with alcohol in their systems. While one person might be impaired at 0.05 percent, others may be just fine. In fact, there are plenty of people who would demonstrate indications of impairment at levels below 0.05 percent, but that does not mean the number should be lowered across the board.

Continue reading

Attorney J. Bradley Smith answering the question: “Should I ever plead guilty to a charge?”

In an interesting case involving drunk driving arrests, our very own Brad Smith has been in the news recently, arguing that police in Charlotte need to make some serious changes to the way they process suspected drunk drivers. The issue arose after one of Brad Smith’s clients was recently arrested after leaving an Uptown bar.

The man said police pulled him over almost immediately after getting in his car and that he was given multiple breath tests by the arresting officer. The final such test indicated that the man had a blood alcohol concentration of 0.11, just over the legal limit of 0.08. The defendant vehemently denied being drunk and wanted the chance to prove his innocence by having his blood taken and analyzed independently. Sadly, due to the slow police booking process the man never got the chance.

After being arrested, the driver was taken to jail, arriving at 3:20 a.m., was granted bond by a magistrate a little after 5 in the morning but was not officially released from the jail until 3:45 p.m. That means that the man remained in jail for more than 12 hours after his initial arrest, totally denying him the opportunity to collect a breath or blood sample of his own.

Given this lengthy delay, Brad Smith filed what’s known as a Knoll motion, claiming that his client had been denied a reasonable amount of time to prepare his own defense. A Mecklenburg County judge agreed and dismissed the charges against the man late last month.

Continue reading

Attorney J. Bradley Smith answering the question: “Should I talk to the police?”

A very interesting story appeared in the Boston Globe last week and compared the surprisingly few DUI arrests in that city to numbers from other similarly sized towns, including Charlotte. The results were surprising and revealed that Boston, home to the 10th largest metropolitan area in the country, only made 241 DUI arrests last year.

The shockingly few drunk driving arrests made by Boston police officers in 2012 is puzzling because it also represents a stark drop off from recent years. Only three years ago the number of people arrested for impaired driving was 33 percent greater than last year’s numbers.

The 241 arrests are best viewed in comparison to the numbers from other similar cities. Denver, a slightly smaller city, made 3,000 DUI arrests in 2012. Philadelphia, a somewhat larger city, made 20 times the number of DUI arrests as Boston. Even here in Charlotte, with a significantly smaller metro area population, police made around 1,600 arrests in 2012, several multiples more than in Boston.

Continue reading

Attorney J. Bradley Smith answering the question: “Should I ever plead guilty to a charge?”

A Canadian man recently had his drunk driving charges dropped thanks to his acid reflux problems. The driver, Phil Coffey, from Ontario, was first pulled over in 2010 as part of a DUI enforcement campaign by local law enforcement authorities. Coffey was suspected of drunk driving and given two breath tests which showed he had nearly twice the legal limit in his system, 0.15. Despite these potentially damning results, Coffey got the charges dropped after explaining the impact acid reflux can have on such readings.

Coffey admitted from the beginning that he had been drinking the night of his arrest. He claims to have had three small glasses of wine over the course of three hours at a friend’s wedding that he attended with his wife. Coffey also said he ate a large amount of greasy food that night, appetizers and a large pasta and beef entrée followed by dessert. His attorneys argued that this heavy meal combined with his acid reflux condition to lead to an inaccurate BAC reading. His reflux was especially out of control that evening because Coffey testified that he never took his prescription Nexium pill that day which works to control episodes of severe heartburn.

Coffey had his doctor testify that he suffers from moderate to severe acid reflux which causes a person to regurgitate stomach acid into their mouth. Coffey claimed that he finished his last glass of wine while leaving the wedding and was pulled over a short time later. This meant that there was enough unabsorbed alcohol in his stomach to be pushed back up into his mouth by his acid reflux at the time the BAC reading was taken.

Continue reading