The Experienced DWI Lawyers of Kurtz & Blum Talk About the Likelihood of Whether or Not You Will Be Convicted of DWI
There can be no doubt that this is the single most burning question in the mind of people charged with DWI. It's their first question, their most important question, and what nags at them day in and day out. But I'm willing to bet that even before you clicked on this link, you knew that since we don't yet know anything about your case, there was no way that we could give you a definitive answer to that question.
What we can do is talk with you about what the prosecution needs to do in order to go about proving their case against you in court and how it is that we are able to effectively defend our clients in DWI cases.
Anatomy of a DWI:
How a DWI Lawyer in Raleigh Evaluates a Case
There are countless different ways that you may have come in contact with the police. You may have been blue-lighted while driving and pulled over. You could have been stopped at a checkpoint. You may have had an accident, or police may have simply approached your car when you were stopped.
Each of these different reasons for a police officer to initiate contact with you requires its own in evaluation. If you were driving or simply stopped and sitting in a car, police usually need reasonable and articulable suspicion to believe that you may be involved in some sort of criminal activity in order to contact you. Every year, appellate courts issue dozens of opinions detailing what does and what does not constitute reasonable suspicion for a police officer to stop the car. For example, while it is clear that weaving in your own lane, in and of itself, does not constitute reasonable suspicion, when coupled with other factors like driving under the speed limit, it will tend to increase the likelihood that a judge would find the officer had reasonable suspicion to pull the car over. There are a multitude of other activities that can add to or detract from the likelihood of a judge finding that an officer had reasonable suspicion to stop a car. If the judge finds that the officer was lacking in reasonable suspicion, no other evidence may be admitted against a defendant, the case will be dismissed, and we win.
It you were stopped at a checkpoint, other rules apply. Police must have an established plan for a legitimate purpose for the checkpoint, and they must stick to it. They can’t simply pull people over at random. Likewise, they must ensure that traffic is not so impacted as to cause a problem with traffic flow. Checkpoint cases require careful evaluation of all the circumstances and paperwork surrounding the checkpoint itself. If we can show that the checkpoint was not properly planned or executed, the stop will be found illegal, no further evidence will be admitted against you, and we win the case.
If your first contact with police was because you had an accident, other issues arise. Were you in the car when the police got there? Was the car running? Were there witnesses to the accident? Did you make statements to law enforcement or others on the scene? All these factors play into whether prosecutors will be able to prove that you were driving and, moreover, that you were driving at a time when you were impaired. If no one who comes to court can testify that you were driving, you cannot be convicted and we win.
Assuming that the police have stopped you legitimately, the next significant question will be whether they had probable cause to arrest you. Probable cause is evidence that makes it more likely than not, in the light most favorable to the state, that you have committed a crime. Several factors will be considered by the judge when he or she reviews the officer’s determination.
When he or she approached you, the officer immediately did a mental inventory of your condition. They noted your physical appearance, whether you eyes were red and glassy, and whether your speech was slurred. As you were not yet in custody, your answers to these questions will likely be admissible against you even though you may not yet have been read your Miranda rights. If you admitted to drinking, particularly if you said that you had several drinks, most judges will find this to be a strong indicator that probable cause existed for the officer to arrest you.
Next the officer likely requested you perform field sobriety tests. No matter how well you think you did, no matter how encouraging the officer’s comments were, you likely failed these tests in the officer’s eyes. Luckily, cameras in police cars frequently have recordings that we can subpoena and often show a client’s behavior in a much more favorable light. Typically the officers then administered a portable breath test, and if it said that you have a breath alcohol content of 0.08 or higher, it is likely that they arrested you on the spot. All of these factors surrounding whether the officer had probable cause to arrest you for DWI will be scrutinized by our experienced attorneys to evaluate whether you might have a basis for a Motion to Suppress your arrest due to a lack of probable cause. If a judge finds that the officer had no probable cause to arrest you, no additional evidence may be admitted in court, your case will be dismissed, and we win.
Once at the station or the BAT mobile (Breath Alcohol Testing mobile), officers likely required you to sit for a 20 minute waiting period before asking you to take the Intox EC/IR II breath test by Intoximeters, Inc. This particular machine uses a combination of electrochemical and infrared sensors to measure alcohol in the breath. The EC/IR II is more accurate than the older breathalyzers, but it is still just a machine that is subject to error. It also requires regular maintenance. If the machine isn’t properly maintained, any results from it aren’t admissible in court.
Hopefully, when you were asked if you wanted a witness, you said that you did. If so, we will want to speak with them to find out their impressions of whether you seemed intoxicated. If you asked for a witness and were denied that opportunity, this can be a strong issue for us to argue that you were deprived your right to collect evidence in your own defense. In such a case, a Raleigh DWI lawyer will discuss the circumstances of that denial and determine whether you might benefit from a pre-trial Motion to Dismiss or Motion to Suppress the result of the breath test.
Finally, after you were charged with DWI, the magistrate should have facilitated your release shortly after you were processed. If they failed to do so, this too could be the basis for a Motion to Dismiss.
SO, if the police can prove that they had reasonable suspicion to pull you over, probable cause to stop you and followed proper procedure to a "T" before giving you a properly calibrated EC/IR II breath test AND you blew 0.10 or above (the legal limit is 0.08 but some judges recognize that machines are fallible), and followed the rules surrounding giving you access to a witness and releasing you from custody promptly, IF THEY DID ALL THOSE THINGS PERFECTLY, then you are likely looking at a conviction. If there is any issue at all with any one facet of their actions, then you may well have a case for trial.
Of course, the issues above are only some of many issues that can come into play. DWI law is anything but
simple or straightforward.
If you really want to know whether you will be convicted or acquitted and want us to give you our best educated opinions as to what you should do, call us, make an appointment and let’s talk through all of the details of your case. No web page will be able to answer this question for you. You need to share the details with an experienced DWI lawyer in Raleigh. It is the only way we can really give you a good answer to whether you will be convicted and all of your other questions.
Our DWI lawyers help people throughout Wake County, North Carolina. We frequently handle offenses arising out of the following cities: Fuquay-Varina, Wake Forest, Apex, Zebulon, Rolesville, New Hope, Garner, Cary, Morrisville, Wendell, Holly Springs, Raleigh and Knightdale.