Articles Posted in DUI/DWI

Since the passage of North Carolina’s Laura’s Law in June by Governor Beverly Perdue, the courts have been tougher on drunk driving especially Hard Core Drunk Drivers (HCDD). The law is named for a North Carolina teenager who was killed by a drunk driver who had three prior DWI (Driving While Impaired) on his record. In the past, excessive offenders would be given an interlock device on their car which would force them to blow into a device before operating their vehicle. Research has found that with these interlock ignition devices, many of the offenders get a “blow fail” which means that at the time they were too drunk to operate the vehicle but still attempted to do it. The interlock ignition device is used for HCDD which are those offenders who are found to blow over a .15 BAC (.08 is the legal limit in NC).

North Carolina plans to follow the states of Tennessee, Delaware, Arizona, Colorado, Nebraska , North Dakota and South Dakota by introducing tougher sentencing for the HCDD with hopes of impacting their overall sobriety and broader alcohol abuse issue. Statistics show according to the Century Council, that in 2009, 70% of alcohol related traffic fatalities were caused by drivers who had a BAC level of .15 or higher and this statistic has remained the same for the past decade.

One device that is being proposed to help better address this HCDD population is an alcohol monitoring anklet. This device is called a SCRAMx and is manufactured by a company called Alcohol Monitoring Systems, Inc. The anklet would use a non-invasive transdermal analysis to monitor alcohol use and would report this back to the appropriate authorities. The immediate goal would be to lessen the number of drunk driving offenses and consequent accidents and fatalities by the HCDDs; however, the long term goal would be to assist these individuals with their broader alcohol abuse issues and help them on the road back to sobriety.

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Defending your Driving While Impaired charge with ingenuity means attacking the Intoxilyzer. The most effective way to attack the magic box is to hire your own attorney. The manufactures of the Intoxilyzer have a vested interest in selling the myth that they have created an instrument that never breaks down, never freezes up, and always produces a perfectly accurate reading. The reality is the intoxilyzer just like any computer has its problems.

The state will present the reading for the intoxilyzer by having the analyst who conducted the test testify. Typically an analyst is only qualified to testify about how the instrument is used to conduct the test. In other words he knows how to turn the instrument on, he knows how to enter the defendant’s name into the instrument using the keyboard, and he knows which button to push before asking to defendant to blow into the instrument. Despite their limited knowledge concerning the science behind the instrument, many analysts will testify about how the instrument works. This typically leads to disaster as the astute defense attorney will point out all the problems with the analyst’s testimony and entirely destroy the credibility of the state’s case with testimony from their own expert.

In North Carolina the Department of Health and Human Services has created regulations that lay out the foundation requirements for a breath test.These regulations state that every analyst must observe a defendant for 15 minutes before requesting that they submit to a test of their breath. The purpose of the observation period is to make sure the defendant does not eat or drink anything, vomit or burp in the fifteen minutes before a the test is requested. The observation period is typically a step in the process that many analysts virtually ignore. It is essential that an attorney defending a Driving While Impaired case request the video feed from the intoxilyzer room so that they will be able to see if the Officer requesting the test physically observed the defendant for fifteen minutes before the breath test.

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If you see blue lights come on behind your vehicle and it’s after midnight on about any day of the week, chances are the Officer stopping your vehicle is going to ask you if you have consumed any alcohol that evening. If he smells even the faintest odor of alcohol a Driving While Impaired investigation is almost certainly to follow. Hopefully after performing some routine field sobriety tests you will be allowed to get back in your vehicle and drive away, however, you may find yourself being placed in handcuffs and arrested.

The strongest piece of evidence for the state in the majority of Driving While Impaired cases is a sample of a person’s breath. Most individuals who are charged with Driving While Impaired submit to a sample of their breath on the intoxilzer because they think they think they will get bonus points in court by being “cooperative” and because when they are read their rights with respect to taking the test, they are informed that if they refuse to take the test their driver’s license will be revoked for one year. So if you blow a .08 or above on the breathalyzer, do you need to begin preparing for life after a DWI conviction or is there still hope?

The bottom line is the state’s case is certainly stronger with a reading than without one. However, a person who registers a .08 or above on the intoxilyzer is not automatically guilty of Driving While Impaired. In a recent decision the North Carolina Court of Appeals in State v. Narron held that a reading of .08 or above does not constitute a mandatory presumption of guilt for a person charged with Driving While Impaired. Rather, the reading on the Breathalyzer is simply reliable evidence to satisfy the State’s burden of proof as to this element of the offense of DWI.

Well you’re probably thinking if its reliable evidence isn’t that just as good as a presumption of guilt? The answer is of course “no”. Being a good criminal defense attorney means defending with ingenuity. If the Intoxilyzer is nothing more than “reliable” evidence, it can certainly be shown to be unreliable. The Intoxilyzer is not a magic box that always produces an accurate reading regarding a person’s breath alcohol content. If a prosecutor is allowed to submit a reading, without any rebuttal or any suggestion to the jury regarding the problems with breath testing or the problems with the Intoxilyzer, the fact finder will accept the reading as sufficient or “reliable” information as to a person’s alcohol concentration.

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