OTHER DUI/DWI RESOURCES

Charged with DWI: Now What?

When you’re going through difficult times in life, you:

• Need an attorney to protect your legal interests
• Want an attorney with experience who will give you the legal insight you need to make good decisions today to ensure a secure future
• Deserve personal attention and a prompt response to your questions

At the Law Offices of Bush & Powers, the attorneys who make up our legal team have experience helping people through challenging times and taking cases to court. We’re prepared to be your advocate: guiding you through the legal process, educating you about your rights and presenting the case with empathy.

We invite you to learn more about how to protect your legal interests and pursue your goals. Even in the worst cases, there are defense options. You are presumed “innocent until proven guilty.”

Information and preparation make for good decisions and frankly, more satisfied clients. Prior to even speaking with you, we want to provide helpful information. We want you to understand both the processes and law behind impaired driving offenses.

This submission explains what you might expect in the weeks and months to come. There is likely more information we can share with you about the individual aspects of your case.

Is There A Difference Between DUI & DWI?

No. DWI charges are criminal cases and have special rules for their presentation in court. You may have heard them referred to as “DUI.” There is no real distinction between DUI, which stands for “Driving Under the Influence” and “DWI” which stands for “Driving While Impaired.”

Is That Only Alcohol?

No. A driver can be impaired by substances other than alcohol, like drugs such a cocaine and prescription medications. In fact, Schedule I drugs can result in a conviction for DWI. . .even if you were lawfully prescribed those substances and even if you are no longer “impaired” by their use.

This is a very controversial aspect of the new DWI law that went into effect on December 1, 2006. It will likely be challenged in court, because it runs contrary to penalize someone for “impaired driving” with no proof they were actually impaired.

As the law now stands, any amount of a Schedule I drug can in your system can result in a charge. You also can be deemed “impaired” by other lawfully prescribed medications. Obviously that is also true for illegal drugs like marijuana, hashish and the like.

The term “DWI” was established to encompass all substances that might “impair” your ability to operate a motor vehicle.

Does “Impairment” Mean?

One is deemed “impaired” if they have “consumed some quantity of an impairing substance so as to appreciably impair normal mental or physical faculties.”

Can I Go To Jail. . .Even For a 1 st Offense?

Yes. There are four factors that, if found part of the case, require active jail time in North Carolina. Your lack of a prior record, service to the community or otherwise wholesome life cannot change that fact. They are called “Grossly Aggravating Factors.”

What Is a Grossly Aggravating Factor (GAF)?

In simple terms, these are the four Grossly Aggravating Factors:

1. Prior DWI within seven (7) years

2. Accident related to the DWI with Serious Bodily Injury

3. Kids in car at time of DWI who are under the age of 16

4. Driver’s license was revoked (or suspended) for another impaired driving offense

What Happens if I Have a Grossly Aggravating Factor?

Factors in aggravation, whether deemed “gross” or something different, are only considered if you are convicted. That is why it is so important to review the facts of the case prior to making a decision on how to proceed.

Generally speaking, if you have only one (1) GAF, the minimum amount of jail time a judge can impose is seven (7) days. The judge can in their discretion Order more time in jail. If you have two (2) or more GAF’s, the judge is required to sentence you to a minimum jail sentence of thirty (30) days.

After Arrest & Processing, the accused can be released by a number of different ways or conditions: For example, a bonding company can “Post the Bond.” The Defendant can be released through “Court Services Pretrial Release.” The Defendant or friends or family can pay a Cash Bond. Some people are even released from jail if they Promise to Appear in court.

How Do They Set Court Dates?

Court dates are set by way of a somewhat unique calendaring system in Mecklenburg County. The Magistrate who sets the conditions of bond prepares a Release Order, which if you look through your paperwork is blue in color. All the terms and conditions for the release are set forth within the blue Release Order.

The Release Order also provides the First Appearance Date in Courtroom 1130. All DWI cases receive an Administrative Hearing Date in either Courtroom 1130 or 1150.

Why Are There Different Courtrooms for First Appearance?

It’s simple. People who are released from jail are Ordered to appear in Courtroom 1130 for an Initial Appearance. People who do not have the money to post bond or who get stuck in jail are taken to see a judge in Courtroom 1150. Normally that “in custody” first appearance date is set very quickly.

What Is a “Video Arraignment?”

That term can apply to a different set of circumstances. It depends on whether the case is an DWI, a felony or a misdemeanor. In order to make sure people in jail get to see a judge quickly, there normally is a “Video Arraignment” within 24 hours of arrest.

Obviously that can’t happen on weekends, so if the accused is arrested on a Friday night for Impaired Driving, he will not be able to see a judge until the following Monday morning. It is called “Video Arraignment” because the hearing is actually done using hi-tech video equipment.

The defendant and the judge speak to one-another using video cameras. The Judge and the prosecutor and the attorney are in court. The Defendant is in jail. There are monitors and microphones that let everyone see and hear one another.

My Paperwork Has Complicated Numbers On It: 07-CR-xxxxxx

Each person charged with a crime is assigned a Case Number. Case numbers are normally written on the upper right hand side of the Release Order. They also may be written on the Ticket or Uniform Citation if they are available to the police officer.

All case numbers begin with the year of the offense, for example “07-CR-xxxxx.” “07” indicates the year 2007. “CR” is the Clerk of Court’s designation of a criminal offense. Each county in North Carolina has its own series of case numbers and they all are issued the same way: 07-CR-xxxxxx.

The numbers following “CR” are assigned in the order in which people are arrested. The first person arrested on January 1, 2007 was given the case number of “07-CR-00001.”

If your paperwork reflects 07-CRS, the “S” denotes a criminal case in Superior Court. In DWI cases, only felony Habitual Impaired Driving offenses and misdemeanor appeals to Superior Court receive the “CRS” designation. Even if the charges end up in Superior Court or are Felonies, they always start out in District Court and are marked “CR.”

What Happens in Courtroom 1130?

The Purpose of Courtroom 1130 is two-fold:

1. There is a determination into whether people are “indigent”

2. Cases are systematically distributed to the different trial or “dispositional” settings.

It can be a complicated and time-consuming process. To understand how it works, you need to know how police officers are directed to appear in court.

Through agreement with the different law enforcement agencies and the court system, officers are normally assigned two days a month in which the must appear in court. Generally, cases are set on a bi-monthly basis or more simply stated, every other week. Some officers appear more often. Some officers are in court less. It depends a lot on how many arrests and citations they have.

Because of the very large number of law officers, it became too difficult to allow each individual officer to set court dates. The court system established system-wide policies to allow more even caseloads in each trial court, which includes the process of “calendaring” matters for trial or disposition.

Officials in Courtroom 1130 arbitrarily sets the hearing dates from a predetermined calendar, based on caseloads, officer availability and the schedules of the people involved. . .like your lawyer.

Is 1130 the Trial Date?

No. Courtroom 1130 is an “Administrative Hearing.” There are no trials. In fact there are no witnesses in 1130. The Police Office will NOT be in Court. There is no taking of evidence. There is no testimony.

The purpose of Courtroom 1130 is to:

Explain the Court System to people who do not have an attorney;

To address legal counsel and issues of indigency; and,

To handle some matters for plea. . .if appropriate.

Your charging officer may have pre-assigned court dates on the first and third Tuesday of every month. Other officers might have court dates on the second and fourth Fridays. Each officer has dates chosen for them by the system and as such, the officer cannot subjectively determine when you will go to court. They are required to be in court on certain dates and times, which are scheduled in advance.

What Happens If I Work on the Day the Officer is Assigned to Court?

As tough as it may sound, you take the day off from work. The Court system assigns the date randomly. No one gets to choose. Sometimes that hurts the client, sometimes that is hard for the officer. There a times where something may be moved to two weeks before or two weeks after the suggested date, but the case will always be on the same day of the week. That will only change if the officer gets reassigned to another court date or if the case is transferred to Superior Court for some reason.

How Do I Know When My 1130 Date Is?

The face of the Uniform Citation, the pink ticket you received for Impaired Driving, should also list the 1130 date that was assigned by the Magistrate. In most instances, if the dates between the pink Uniform Citation and the blue Release Order are different, the Release Order is more likely correct.

It is very common in Mecklenburg County to have cases continued one or more times. Practitioners refer to the appearance following 1130 as the “First Appearance.” If properly retained, we will appear at the 1130 hearing for our clients. Your presence is normally not required if you hire the firm.

Won’t I Get In Trouble If I Don’t Appear in 1130? Will the Judge be Mad? Will It Hurt My Case? Shouldn’t I be There?

No. Again, Courtroom 1130 is Administrative Court. If you properly retain the firm, you do not go. If you wish to handle the matter yourself or wish to ask for a Public Defender, you MUST go to Courtroom 1130.

The charging officer will not be present, it is possible you will sit in court for an extended period of time (or wait in the hallway to enter the courtroom). It is not unusual in Charlotte for Courtroom to have 1,200 to 1,600 matters on the docket.

Having your attorney appear on your behalf is the preferred method of obtaining a trial date in Courtroom 1130. There is limited space and many other matters to handle in court that require the defendant’s appearance.

Yes. You can call us at 704-342-4357. We have access to court records and will be more than willing to provide information regarding your court dates. We also will answer other questions regarding the process and provide information about your case. The consultation is free.

You also can call Clerk of Court. The telephone number for the Clerk of Court is (704) 347-7809. Be advised, their phone system always seems busy. Usually Thursdays and Fridays are the best days to call. You will need your case numbers if you decide to try calling.

How Do I Keep Up With Court Dates?

There are a few different ways:

You can call our firm, if hire us

You can call the Clerk of Court

You can check on-line: http://www1.aoc.state.nc.us/www/calendars/CriminalQuery.html

Accidents do occur in the recordation of new dates within the system. We have found that with both our office and clients checking dates, there is much less room for errors. Given the very serious consequences for missing court, like going to jail for a “Failure to Appear,” checking multiple sources and confirming appearances makes sense. It also saves you from additional fees.

Is My Arrest Picture Available to the Public?

If you were arrested in Mecklenburg County, your “mug shot” is likely available to everyone in the world to see. It may take time to be posted, but you can check the following two sources on-line:

http://mcmf.co.mecklenburg.nc.us:3007/cjin01w/cjjl/webnull

http://mcsoweb2k.co.mecklenburg.nc.us/inmatesearch/inmate_search.asp

The first link is for people who were arrested and released. The second link if for people who are still in jail, awaiting a dispositional date.

How Do I Get My Picture Off the Internet?

There are really only two ways:

1. You were mistakenly arrested

2. You win the charges and have the record of the arrest and court paperwork “expunged.”

You need a Pre-Trial Limited Driving Privilege. We will prepare it for you as part of our legal representation. Obviously you must qualify for the privilege and otherwise complete the required steps for the privilege to be issued.

Despite challenges against such laws as a violation of the Due Process and Double Jeopardy protections of the United States Constitution, the Supreme Court has repeatedly allowed the thirty day (30) the administrative suspension. . .just for being charged.

How Soon Can I Drive?

A charge of Driving While Impaired in North Carolina requires an immediate thirty (30) day revocation of your driving privilege. After ten (10) days from the date of the arrest, a Pre-Trial Limited Privilege may be obtained in certain circumstances.

Are There Restrictions?

People who have been convicted in the last seven (7) years of Driving While Impaired (DWI) or who do not have a valid driver’s license may not obtain a Pre-Trial Privilege. Furthermore, most judges will not grant a Pre-Trial Privilege to persons who caused serious bodily injury in an accident related to the DWI or who had kids in the car under the age of 16 at the time of the arrest.

Is There a Court Hearing to Get My License Back?

Yes, technically. A hearing process is required if the District Attorney’s Office asks for one. In most instances, after preparing the appropriate materials, we can get a Pre-Trial Privilege without you coming to court.

The District Attorney’s Office can waive their right to require a hearing on the privilege. The materials we submit are complete, accurate and based upon a written Affidavit. It is common to obtain a Pre-Trial Privilege without a hearing if all the paperwork is complete and accurate.

What Do I Need to Do?

Prior to obtaining the Pre-Trial Privilege, there are four (4) primary requirements that clients must assist us in completing: Alcohol Assessment, DL-123 (or Equivalent), Work Hours & Affidavit.

What Is an Alcohol Assessment? Is It Expensive? Does It Make Me an Alcoholic?

The client must obtain an Alcohol Assessment at a properly licensed facility. Please do not mistake this condition for a privilege as our assumption you have a drinking problem. It is a requirement of the North Carolina General Assembly.

Where Do I Get an Assessment? Is It Hard?

There are many companies in the Charlotte area that offer Alcohol Assessments, but normally recommend Tyvola Assessing Center. The telephone number for Tyvola is 704.525.4828.

Marie Thusen, Executive Director for Tyvola Assessing Center will schedule times for our clients on weekends, after hours and/or whenever it is convenient to your schedule. The process normally takes about thirty (30) minutes and is not overly cumbersome.

Mrs. Thusen will administer two (2) questionnaires that are approved by the State of North Carolina. Without going into great detail, the purpose of the “testing” is to determine whether one might have a potential problem with alcohol or other elicit substances.

How Much Does It Cost?

The cost for the assessment is One Hundred ($100) Dollars. In most instances, Tyvola will accept payment at the time of the testing. If your schedule requires a weekend or evening visit, advance payment may be required.

What is a “DL-123?” Can’t I Just Use My Insurance Card or Policy? How Do I Get It?

The client must request from his or her insurance carrier a form called an DL-123. We strongly urge clients NOT to disclose to their carrier the purpose of the form. Primarily, it is none of the carrier’s business and secondly, you have not been convicted of any offense.

The DL-123 is a very common form. We request clients to simply provide the Bush & Powers facsimile number of 704.358-9079.

Do I Need to Sign Anything? What Paperwork Is Involved? Who Prepares It?

The client must execute several forms of documentation to apply for the Pre-Trial Limited Privilege. We will prepare all the forms and simply ask you to sign your name in the appropriate places. Within the application are the Petition for Pre-Trial Privilege, the Pre-Trial Limited Driving Privilege and Affidavit in Support of Application for Pre-Trial Privilege.

In most instances, clients simply swing by the office to sign the materials.

Are There Any Restrictions? When Can I Drive?

The Standard Hours for all types of Limited Driving Privileges are Monday through Friday, 6:00a.m. until 8:00p.m. You may request the Court grant additional hours or days of operation. Proof of Non-Standard Hours is usually accomplished by forwarding on work letterhead, purchase order or other official materials, a letter stating the days and hours needed.

Many judges will grant what we call 24/7 privileges. . .if the proper proof for need of such flexibility is proffered. (24/7 refers to being able to drive twenty-four hours a day, seven days a week). As you likely realize, there must be a legitimate need to drive during such times.

For example, people who work 3 rd Shift, or who are “on call” and who might be the “emergency” reference person at work are commonly granted “Non-Standard” privileges. Whatever the reason, we will do our utmost to help you get to work.

Limited Driving privileges also allow people to conduct “household maintenance” such as going to the grocery store, picking up children from school and the like. Normally the Court will direct such activities to take place during the Standard Hours.

You may NOT drive on a Limited Privilege to go out on a Friday night with friends. If you are caught driving outside the hours on the face of the privilege you can be arrested. It is a very serious offense. We strongly caution people to comply with the strict rules of the Limited Privilege.

When Can I Get a Limited Privilege? I Thought My License Was Suspended for 30 Days.

The Pre-Trial Driving Privilege may be obtained from the tenth day after your arrest. It is valid for twenty (20) days thereafter. As such, the Legislature has ordered all persons charged with Driving While Impaired and who had an alcohol concentration of .08 or higher to not drive for thirty (30) days. Only ten (10) days are kept in effect if a person properly applies for and receives the Pre-Trial Privilege.

After thirty (30) days from the date of the arrest, you are entitled to obtain your regular driver’s license. The Pre-Trial Driving Privilege is no longer required after that time. There are no restrictions on when or where you can drive. In fact, you may consume alcohol and drive again assuming you do not exceed the legal limit. Although that is not a terribly smart thing to do.

I Don’t Know My BAC? Is My License Still Good?

There are a few ways that your license might have been revoked. First, if Blood was drawn pursuant to the arrest, it is commonly not tested for several weeks. Upon receiving notice of an BAC (Blood Alcohol Concentration) that exceeds the legal limit (.08 or Higher), the Clerk of Court is required to send Notice to the Department of Transportation, Division of Motor Vehicles. As such, your license MAY be suspended weeks or months after the arrest.

I Blew Under .08

That’s good. DMV can only suspend your license if the BAC was at or above .08. You still may be charged for Driving While Impaired, EVEN WITH A LOW READING. The State of North Carolina can seek to prove impairment via “Retrograde Extrapolation.” It is possible that the BAC may have been higher when you were driving and was reduced over time. Do NOT assume the case will be automatically dismissed.

I Was Marked as a Refusal? What Does That Mean? What Happens If I Tried to Blow?

A “refusal” results in an automatic twelve-month (1 Year!) suspension. If you deny refusing OR if there are circumstances whereby the charging officer did not have the legal right to demand a sample, you may challenge the revocation.

How Do I Challenge a Willful Refusal?

This is VERY important. You must challenge the “willful refusal” via formal letter within ten (10) days of the formal revocation. If properly retained and otherwise legally appropriate, we can file a Demand for Hearing and forward that to DMV via certified mail.

Is Certified Mail to the DMV Required?

No. But it is the only real proof you requested the hearing in time. If you miss the hearing date, you WAIVE YOUR RIGHT TO FIGHT THE REFUSAL SUSPENSION!

When Is The Hearing?

It depends. Sometimes hearing officers will agree to set the hearing off until such time as the substantive offense of Impaired Driving is handled in court. Other times it may be heard sooner.

I Didn’t Want to Blow. . .Can I Still Challenge the Refusal Revocation?

In certain circumstances, yes. For example, one cannot be suspended for willfully refusing the testing if Probable Cause to arrest and/or charge Impaired Driving did NOT exist. It is an extremely complex aspect of DWI law and therefore is best discussed with legal counsel after exploring the law and facts of the charges.

They Got An Order to Draw Blood? Can They Do That?

That question is frankly hard to answer. It is a developing area of law and one that promises litigation in the future. Caselaw exists on both sides of the argument. It is our position that “forcing” a blood test is an improper intrusion on your Constitutional Rights.

VI. Restoration Fees & Re-Issuance of License

In order to obtain your driver’s license after the thirty day revocation period, you must pay a Fifty ($50) Dollar restoration fee to the Clerk of Court. If you provide the funds for such fee to our office in a timely fashion, we will pick up your driver’s license at no charge. The $50 Restoration Fee is assessed by the Clerk of Court, not Bush & Powers.

How Do I Actually Pick It Up? Do I Need to Go or Can My Attorney Do That For Me?

It is our goal to save you the hassle of waiting for hours to obtain your license. If you act in a timely fashion, we can almost always have your original license to you without delay. Again, you must be eligible for reinstatement and not have some other administrative suspension that would affect the return of the license.

The Clerk of Court will accept only certified funds such as a Money Order, Bank Check or Cashier’s Check. The Clerk will also accept cash. We request clients to provide the Restoration Fee before the thirty (30) suspension period expires.

VII. Out-Of-State Licensees

Contrary to what you may have been led to believe, North Carolina does not have the power to suspend out-of-state licenses. North Carolina CAN suspend your privilege to drive within the boundaries of the State of North Carolina. As such, many out-of-state licensees simply chose to avoid driving in North Carolina.

Do I Still Have To Pay The Restoration Fee?

The Restoration Fee as described above will still apply.

Can I Get a Limited Privilege With an Out-of-State License.

Out-Of-State Licensees may apply for a Pre-Trial Limited Privilege. There are no additional requirements. If insurance is held in another state, a form similar to the DL-123 may be required.

South Carolina ’s form for proof of insurance is commonly called an SR-55. Most judges will not accept a Declaration Page as proof of insurance. DL-123’s are valid for thirty (30) days only. A re-executed DL-123 with an appropriate date will normally be accepted by the Court.

VIII. Limited Driving Privileges

Do I Need a Limited Privilege? I Had a PreTrial Privilege.

It is our sincere hope you will NOT be convicted of Impaired Driving. If you are found responsible, the same general requirements for the Pre-Trial Limited Privilege are prepared for the Court’s review. Persons who have been previously convicted of DWI within seven (7) calendar years from the date of the offense may not obtain a Limited Privilege.

What Is Required to Get a Limited Privilege?

The conditions are almost exactly the same as those for a PreTrial Limited Driving Privilege. Prior to obtaining a Limited Driving Privilege, one must obtain an Alcohol Assessment and provide an DL-123.

How Long Does an DL-123 Last?

DL-123’s are valid for only thirty (30) days of their execution. Assessments do not expire and do not require an additional execution.

IX. Cash Bond Refunds

Some clients chose to post their release with cash. You will be entitled to the return of all the money after the final court appearance for the matter. When you were released, the person who paid the bond received a green receipt. The amount of the posted bond and the date is stated on the face of the receipt.

Only the person who posted the bond may receive the funds from the Clerk of Court, unless a properly executed affidavit releasing the funds to a third party is filed. That is true whether or not you actually gave the money to another party to post bond. Legal Fees may be paid by way of Bond Release.

What Is That Green Slip of Paper They Gave Me?

It is your receipt and it is very important not to lose. If you, a friend or family member posted a cash bond, make absolutely certain the green receipt is kept in a safe place. Unlike your need to post cash, the Clerk of Court will not immediately return the funds in the same manner.

How Do They Refund My Bond Money?

“The check is in the mail.” The government always gives itself the easy way out and as such, will cut a check and mail it to you normally within a week or two. The will not refund the bond in cash. They provide proper identification, mailing address, case disposition and return information.

Can I Use My Bond Money to Pay Costs & Fines

That had been allowed in the past. Generally speaking, that option is no longer available in Mecklenburg County.

X. Bonding Companies & Bail

There is no practical distinction between the terms “bond” and “bail.” Bailments were created under old English Common Law to make certain persons accused of a crime came to court. The belief was that if people had money to lose, they would make certain to be present for hearings.

The term “bonding” refers generally to a type of insurance Bonding Companies carry. Because they are insured, they may sign the release paperwork at the jail promising to pay and/or be personally responsible for your bailment in the event you chose not to appear in court.

What Is the Normal Percentage Paid?

For taking such risk, the Bonding Companies charge a fee. The normal cost for obtaining assistance of a Bondsman is approximately ten (10%) percent of the total bond amount. You are NOT entitled to a refund of the fee.

What Happens If I Miss Court or Don’t Pay the Bondsman?

If you fail to come to court or otherwise comply with the conditions of the Bonding Company, they may chose to “surrender” you to the Sheriff’s Department. Although the Court system generally does not care whether you change residences or leave the state on business, your Bonding Agent may. We encourage our clients to keep in close contact with their Bonding Company and comply with everything they ask of you.

Like lawyers, doctors or firemen for that matter, there are good and bad Bonding Companies. Some are more reputable than others. If you feel your Bonding Agent is being unreasonable, please tell us immediately. It is our desire to assist clients through the process. As such, we sometimes will contact Bonding Agents at the behest of clients to try to smooth out difficulties.

XI. Bench vs. Jury Trials

All DWI charges require appearances with a District Court Judge to start. Trials, Motions & Guilty Pleas are heard by the District Court Judge, which may be appealed if appropriate. In the event you are not satisfied with the judgment and/or trial, you have as a matter of right the ability to a “Trial De Novo.”

De Novo translated from Latin means literally “of new.” The original judgment by the District Court judge is completely set aside. The appeal is taken before a jury of your peers. In most instances, a jury trial is not required.

Is a Jury Trial Different? Does It Cost More?

Occasionally we will recommend jury trials to clients. Legal fees for jury trials are NOT included in the basic contract of representation. Furthermore, the State of North Carolina is now given an opportunity to appeal certain pre-trial motions.

It is important to recognize: Juries are “Finders of Fact” in Superior Court. Judges are “Finders of Law” in Superior Court. In District Court, the Judge acts as both the Finder of Fact and the Finder of Law.

XII. Reconnaissance / How To Prepare

Preparation is key for a zealous DWI defense. Although some documentation is provided to people upon release from jail, the vast majority of truly important forms is not disclosed. It is something we must search out and in some instances, fight to obtain.

Bush & Powers does not believe in “just waiting until the court date to talk with the officer.” Acting in such fashion is imprudent. As such, we obtain the important paperwork for the client, once we are retained.

What Are the “Important Documents?”

The following materials are very important to obtain BEFORE trial:

1. Charging Officer’s Affidavit. In order to set a bond or even hold a party in jail for impaired driving, Probable Cause must be established. The old-fashioned way of obtaining Probable Cause required the officer to testify before a Magistrate as to the factual basis behind the case. That testimony was under oath.

Mecklenburg County has changed the procedure somewhat in the last ten (10) years. It is now the policy of the officers to prepare a written, sworn affidavit for the Magistrate’s review. That form is now called the Charging Officer’s Affidavit (COA).

Within the COA the officer writes down his or her impressions of the DWI arrest. They normally state why the accused was pulled over, what they acted like, and how they performed on the various psychophysical dexterity tests (also known as Field Sobriety Tests / FST’s).

The Charging Officer’s Affidavit gives counsel a basic idea of what the officer believed during the arrest investigation. It may provide a basis for a Motion to Suppress or Dismiss. It may explain why an officer acted a certain way. It also may help remind clients about certain details of the arrest that they have forgotten.

2. Alcohol Influence Report (AIR). Most officers in Mecklenburg County are provided the AIR form by their respective law enforcement agencies. It first became popular for use with the North Carolina State Highway Patrol.

The AIR form lists with great specificity the observed effects of alcohol on the accused. It also provides pertinent personal information. AIR forms include how a person was dressed, how their speech sounded, whether their eyes were red & glassy and describes in a detailed fashion the FST performance.

Hey, What Are Those Dexterity Things? Are They Admissible?

There are three (3) commonly accepted Psychophysical Dexterity Tests that were promulgated by the Department of Transportation / National Highway Traffic Safety Board (NHTSA). They are:

a. The Horizontal Gaze & Nystagmus (HGN)

b. Walk & Turn / Heel to Toe

c. One Leg Stand

Officers also occasionally perform other tests such as making one say their ABC’s, count on their fingers or answer questions. Officers are instructed to attempt to distract the party attempting to perform the physical tasks. That is called “Diverted Attention” testing.

A “Nystagmus” is a persistent, rapid, involuntary movement of the eyeballs. The North Carolina Supreme Court previously ruled such testing is inaccurate and therefore cannot be admitted at trial as proof of impairment or determinative of probable cause to effectuate an arrest. Effective December 1, 2006, the North Carolina Legislature adopted the test as a methodology to determine impairment. It remains to be seen whether the Courts will adopt the test as reliable.

Another common testing device is the AlcoSensor. The AlcoSensor is a portable alcohol-screening device normally given on the scene of the arrest. AlcoSensor results are NOT admissible for the purpose of determining guilt or innocence. The Court may consider AlcoSensor results to establish whether clear probable cause existed so as to allow a proper arrest of the accused.

I Think I Saw a Video Camera in the Police Car. Can I See That?

Video and Audio Tapes are now commonly utilized in trials for Impaired Driving offenses. It is important to note many officers do NOT have audio-video equipment in their patrol vehicle. It is also vital to secure the tape before it gets destroyed.

How Long Do They Keep the Tapes?

Not very long. Most police agencies have their own internal policies. We request the video upon being properly retained.

It is our office policy to obtain video evidence whenever possible. There is no additional charge for duplicating the video. We ask our clients, at such time as one may be available, to set up an appointment. During the visit, we will review all the research materials regarding your case and watch the video with you.

I Saw the Officer Writing Notes. Can I See Those?

In some cases, police officers record their recollections of the arrest within personal notes. That type of documentation is normally not provided without some discourse with the District Attorney’s Office. Although law enforcement officers are not required to disclose the materials to the District Attorney, the Magistrate or Defense Counsel, most will if approached in an appropriate fashion.

Isn’t There a “Motion for Discovery?”

Traditionally there has been no right to “Discovery” in Impaired Driving offenses. A series of recent United States Supreme Court may challenge that principle. There is a vast wealth of information that can be obtained with effort and knowing where to look.

It is our goal at Bush & Powers to assemble the requisite documentation for your case without delay. As such, we now file a Motion for Discovery on most DWI cases and plan on arguing the caselaw to the Court. It is our position Discovery is now allowed in DWI cases.

XIII. Questions & Concerns

It is our strong belief at Bush & Powers that information and preparation makes for prudent decisions. As our materials indicate, we want you to understand both the processes and law behind impaired driving offenses.

We actively encourage clients to act responsibly and confront the charges against them. Although it generally is not a pleasant subject and in fact, seems to be something people would rather forget, trial preparation can make the difference between a Not Guilty and Guilty verdict.

Hopefully this submission has helped explain what you might expect in the weeks and months to come. There is likely more information we can share with you about the individual aspects of your case. Therefore, I encourage you to call now for a free consultation. 704-342-4357.

Sincerely,

Bill Powers, Esquire

704-342-4357  

Law Offices of Bush & Powers

A Partnership of Professional Associations

QUESTIONS FOR KNOLL MOTION

CLIENT NAME:_________________________________________

1. Date and time of arrest

2. Breathalyzer administered at what times?

3. Defendant saw Magistrate at what time?

4. Secured or unsecured bond? Amount__________________

5. Name of person you called to pick you up from jail?

6. What time did that person get to the jail?

7. Was that person able to see you right away?

8. If not, what was that person told by jail employees as the reason he/she was unable to see you?

9. How was bond posted and by whom?

10. Time of Defendant's release ____________________

11. How much time elapsed between the setting of Defendant's bond and his release? And why?

After answering above questions, please fax back to Bush & Powers at 704.358.9079.