What Are My DWI Defense Options?

Pursuing a Positive Outcome with a Charlotte DWI Lawyer

Once upon a time, folks who were charged with DWI would regularly plead guilty to some lesser charge under a plea bargain. Their attorneys would work out deals with the prosecutors, and often, they'd plead guilty to something like reckless driving. The prosecutors were glad to do this, particularly for first-time offenders, because it was a quick and efficient way to dispose of cases in our overcrowded court system. That largely became a thing of the past after the legislature, prodded by anti-drunk driving advocates, passed a new law in 1983, with modifications in 2006 and 2007 (General Statute §20-138.4) requiring prosecutors to put a written explanation in the court record and, in a later law, explain orally whenever they reduced or dismissed a charge subject to the implied-consent laws.

The change was intended to make district attorneys accountable for the DWI plea bargains they made, and - D.A.s being elected officials - it worked. These days, most district attorneys would rather try a case they know they're going to lose than accept a guilty plea to a lesser offense and have to subsequently explain it to voters.

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Plea Bargains & Possible Defense Strategies

This is the case even in instances where the person charged with driving while impaired blew a .07 or tested above the legal limit in blood tests. In former times, the prosecutor might have accepted a dismissal or plea bargain, which made a lot of sense. Not accepting a plea leaves the outcome of the case resting on a contentious, imprecise, and subjective assessment of impairment based on nothing more than the arresting officer's observations. Whereas, accepting the plea is quicker and more considerate of the court's time, especially considering that .07 is below the state's presumption of impairment (which is currently .08).

Oddly, these .07 cases can sometimes be pretty hard to defend. Specifically, because - after failing to meet the objective legal standard for impairment - the arresting officer is left having to beef up his testimony to make the case that you were impaired. The descriptions of how you performed on field sobriety tests suddenly become a little richer and every tiny detail of the event is thrown into the bubbling soup.

So most of the time, especially on a first offense, it makes sense to go ahead and try the case. There's a saying in legal circles: if you don't try the case, lightning can't strike. Which basically means that you never know when a losing case will turn into a winner. The lightning could be that some piece of key evidence was misplaced, or the officer inexplicably mixed up his facts. It could be any number of things that never happen 99.9 percent of the time. Once in a while, though, it does happen, and someone gets off because of it.

If you don't try the case (if you plead guilty) you'll never know if one of them might happen during your trial. That said, there are still times when circumstances may warrant a guilty plea. Usually, this is the case if you have more to lose by rolling the dice with a trial than you do if you plead guilty. This is a big if. There are many strategies for defending a DWI charge, many more than the run-of-the-mill criminal defense lawyer knows about, and all of those strategies are worthy of exploring first. That's why you need a DWI attorney defending you.

But sometimes, even skilled drunk driving attorneys confront cases with almost no chance of winning on an issue of:

  • Articulable suspicion
  • Probable cause
  • Evidence of impairment
  • Any of the other defense avenues available

Sometimes, the state has an air tight case. Your DWI lawyer should have enough experience to know if that's the case, and if it is, to know whether there are circumstances in which you would be better off pleading guilty. Let's look at some of those circumstances.

Avoiding Aggravating Sentencing Factors

Without a doubt, the most common reasons for pleading guilty involve cases with circumstances that, if they come out in court, would result in a stiffer sentence. For instance: When someone under 16 was in the car while you were driving, when there was property damage as a result of your DWI, or when a person was injured because of your DWI. In theory, if these circumstances are present in your case, the court should know about them already. It should all be in the paperwork in your case file. Most of the time it is, but even so, it may go unnoticed if you plead guilty. How could that be?

It's a matter of numbers. Prosecutors have to juggle dozens of cases all the time. At the district court level, they may have to deal with 200 cases a day. Unless your case is particularly notorious, they're probably not going to know the details off the top of their heads. They may scan through your case file, but the court moves fast. Critical information can be buried or glossed over even when it's right before their eyes. And sometimes, even if the information does come out, you might still be better off pleading guilty. How come?

Because you may well get a lighter sentence. When information about aggravating factors exist in the court record, it's still something of an abstraction. It's there, but it's in the form of typed or scrawled words on some law enforcement report, one of thousands of such reports the court sees every week. Should these factors come out in trial, they'll come alive as an officer testifies in detail about the damage to the parked car you hit, or the extent of the injuries of your passenger. At this point, these aggravating factors are no longer abstract; the officer is painting the picture of what the scene looked like. The judge is getting a more vivid view of the events on that night and may very well respond with a stiffer sentence. Instead of giving you 7 days in jail, he could give you 14 or 20.

Prior DWI Convictions

Under state law, if you have prior DWI convictions within seven years, the judge has no choice but to sentence you to jail for a minimum of at least 7 days, and possibly a minimum of 14 days. It's mandatory. If you have a prior DWI and the case is not winnable, you may be better off pleading guilty and hoping they won't realize you have a prior when they're sentencing you. If your prior is in North Carolina, this is probably a futile hope. If it's on your DMV record, it's rarely missed by the state. (This is not to say it never happens. Once in a blue moon, an in-state prior DWI is overlooked because of an error in the DMV's computers.)

If your prior DWI was in another state, however, the chances of the state overlooking it are better. First of all, it may be listed in your court record under the technical name of the charge used in that state. For example, in Ohio, DWI (driving while impaired) is known as DUI (driving under the influence).

Addressing Multiple DWI's

There are also cases that involve, not prior DWIs, but multiple DWIs. In these cases a person has two DWI charges pending at the same time. This may seem far-fetched, but ask any DUI DWI attorney; it happens more often than you would think. Again, if there are grounds for beating the DWI in court, then go to trial. If you don't, this is what will happen:

Your first charge would come to court. Let's assume the worst case scenario: you're found guilty. The judge decides to issue a standard first offense sentence, say, 24 hours community service and limited driving privileges for a year. Then your second DWI hits the court, and you're found guilty again. This time, you get the book thrown at you, because you have a prior DWI conviction within 3 years. Suddenly, you're being clobbered with 14 days in jail, a $2,000 fine and your license gets revoked for four years.

Finally, you may want to consider a guilty plea if you're facing multiple charges, like a DWI and driving more than 15 mph over the speed limit, or if you've been cited for causing an accident in addition to your DWI charge. Prosecutors will sometimes reduce these other charges in exchange for a guilty DWI plea, since they see the DWI charge as the one the public is most concerned about. It's also the most serious charge, so they'll reduce the other charges in order to get the guilty plea to the DWI without having to go through all the time and effort required to try the case.

Working to Dismiss or Reduce DWI Charges

True, you'll be saddled with a DWI on your record. But by getting, for example, a 81 mph in a 55 mph zone charge dropped, you become eligible for limited driving privileges. On the other hand, going to trial may present a slim chance of keeping the DWI off your record, but a conviction on both charges may result in no driving privileges. It's a tough decision that you really can't make until you consult with an experienced Charlotte DWI attorney. It is always in your interest to consult with an experienced DUI attorney. None of the above should be mistaken for legal advice, nor does it establish a client-attorney relationship.

To learn more about your legal options, please give us a call without delay.

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