The Traffic Stop
First, ease your vehicle over to a safe location as soon as is reasonably possible.
- Do not jerk the steering wheel or brake suddenly.
When the officer approaches your vehicle; BE POLITE. Remember, they are just doing their job.
For those being stopped and investigated for violation of North Carolina’s Driving While Intoxicated law, the process is very unnerving and intense. Though Police Officers often times are nice and polite about their handling of your investigation, their approach to certain processes they want you to complete to confirm whether you are, in fact, intoxicated are unduly persuasive and suggestive. In fact, certain statements made by the Police are intended to give the impression to the Driver that they are obligated to perform these tests and procedures when in fact, they are not.
Obviously, if an officer attempts to pull you over, you are obligated to comply with the stop. The best thing you can do is slowly and gently pull off to the side of the road, or onto an adjoining road, at the nearest location you can do so safely. If it is a NC DWI Checkpoint or NC License Checkpoint, you will need to proceed with the stop.
Once stopped, if the officer asks for your driver’s license and/or registration, you are required to comply. These pieces of information are required to drive on North Carolina roads and therefore must be produced when asked for by an officer.
If the officer asks you other questions, normally dealing with where you have come from, where you are headed, or how much you have had to drink, you are NOT OBLIGATED to answer these questions. In fact, the admission of having consumed alcohol recently will almost always result in further investigation into whether you are Driving While Intoxicated. That’s not to say if you don’t answer they can’t investigate, only that it gives them more reason to do so.
It is in your best interest to politely and respectfully decline to answer these questions if you have been drinking. DO NOT LIE! If you are ultimately proven to have consumed alcohol, a lie about it could be used against you. DO NOT BE RUDE! Remember that regardless of your circumstances, the officer is only performing their job; it is not personal. A good option would be to answer along the lines of “I respectfully decline to answer your questions.” This is where a good Raleigh DWI Attorney or Raleigh DWI Lawyer can assist you in your case.
The reality is, the Police Officer is permitted to temporarily detain you to investigate potential criminal activity (as something as small as a license plate light can warrant a stop and temporary detainment). Additionally, they are permitted to ask you to leave the vehicle for their safety. Lastly, they are permitted to perform a frisk of the outer clothing of individuals they have ‘reason to believe are armed.’ However, beyond these three things, the Driver is not obligated to assist the Police Officer in their investigation.
I’m certain some people may ask, why not assist them and make their job easier. And while I’ll agree they have a very difficult job, there is no reason to make their job of convicting you of a crime any easier then is necessary.
Additionally, the officer may ask you to perform Pre-exit Tests. These tests are ones you do while seated in your vehicle and are designed to provide the officer evidence of any impairment. Examples are being asked to recite the alphabet, to count, or perform a finger dexterity test. Again, you are NOT OBLIGATED to perform these tests. It is a good policy to respectfully decline to perform these tests if you have been drinking.
Options available to you when stopped
If the officer still feels you may be intoxicated, he or she will ask you to exit the vehicle. Once out of the vehicle, the officer will likely ask you to perform several Roadside Sobriety Tests also referred to as the Standardized Field Sobriety Tests. These tests are used to gather impairment evidence utilized when prosecuting you for Driving While Intoxicated.
The three common roadside sobriety tests are the One-Legged Stand, the Walk-and-Turn, and the Horizontal Gaze Nystagmus. In each of these tests, there are certain “clues” the officer is looking for to determine whether you are appreciably impaired such that you have violated North Carolina DUI laws.
One Legged-Stand Test
In the One-Legged Stand, the officer requests you stand with one leg out in front of you, approximately 6 inches off the ground, with the raised foot pointed up and both legs straight, hands at your side. You will be asked to count out loud “one-one thousand, two-one thousand,…” until you reach thirty. The “clues” the officer is looking for in this test is raising your arms for balance, hopping, dropping your foot early, or swaying.
The next test is the Walk-and-Turn. In this test, the officer will ask you to stand heel to toe while he or she gives instructions. They will explain that they want you to walk a straight line (sometimes on an actual line, sometimes a line is not available), making contact heel-to-toe, for nine steps, while watching your feet, counting out loud, and keeping your hands at your side. At the ninth step, you are to keep your lead foot on the line, and turn using your other foot by taking small steps around in a half circle. Then repeat the nine steps back. The “clues” that are looked for are starting the test too soon, using hands for balance, stepping off line, missing heel-to-toe by more then a 1/2 inch, an incorrect turn, a wrong number of steps, stopping the test early or not maintaining balance during instructions.
Horizontal Gaze Nystagmus Test
The last test is the Horizontal Gaze Nystagmus (HGN). To explain this test, it is necessary to define Nystagmus. Nystagmus is the involuntary twitching of the eyes. Nystagmus can be caused for several reasons, one is alcohol impairment. The test is performed by the officer asking you to follow a stimulus while holding your head still. The officer is supposed to move the stimulus from left to right and right to left, watching each eye for certain “clues.” The test is looking for six “clues”, three for each eye: lack of smooth pursuit, distinct Nystagmus at maximum deviation, and onset of Nystagmus prior to 45 degrees. In other words, while performing the test, the officer is looking to see if your eyes do not track smoothly, to see if you have ‘distinct’ Nystagmus when your eyes are all the way to one side, and to see if Nystagmus starts prior to the stimulus reaching 45 degrees from the center of your face. It is a common misbelief that this test is looking for whether you can follow the stimulus without moving your head, and while the officer will make note of it, it is not the primary purpose of the test. Therefore, no one but the officer knows whether you ‘passed’ the test or not.
AlcoSensor Test (Handheld Breathalyzer Machine)
In addition to these tests, the officer will likely ask you to blow into a Handheld Breathalyzer Test; known as the AlcoSensor. The AlcoSensor is used by the officer to determine your level of intoxication from the side of the road. The numerical results of this test CAN NOT be used at trial. The officer can only testify as to whether the machine indicated a positive reading for alcohol on your breath.
The Intoxilyzer 5000 or Intoximeter EC/IR II
The Intoxilyzer 5000 and the Intoximeter EC/IR II have been approved by North Carolina for use by police officers to determine the level of intoxication of someone they have arrested. Normally, these machines are found at the police station or precinct. Occasionally for North Carolina DWI Checkpoints, they will have these Breathalyzer Machines on site to expedite processing DWI arrests.
The test performed by these two machines is what is called an “Implied Consent” test. That means that, by driving on North Carolina streets or highways, you have “implied” to “consent” to the administering of these tests. This is important because, by law, should you refuse to perform this test, you will have your license suspended immediately for 30 days, and then for a year. You will not be eligible for a limited driving privilege for the first 6 months of that year. However, by providing a breath sample for this test, you could be generating the evidence the State needs for your conviction of Driving While Intoxicated. A North Carolina DWI Conviction also carries with it a suspension of your license for a year, as well as other requirements laid out in North Carolina DUI Sentencing Structure. Also to be considered, should you refuse the test, the officer may obtain a warrant to take a sample of your blood in order to ascertain your level of intoxication. For these reasons, the Matheson Law Office, PLLC does not offer a suggestion or recommendation when it comes to the Intoxilyzer 5000 or Intoximeter EC/IR II machines and the test they perform. Only you can decide what is in your best interest as to whether to refuse the test or not as either option carries with it consequences you must weigh.
If you decide to perform the test, you are given the option of having someone present to witness the administration of the test. You have 30 minutes from the time your rights are explained to you in order to get someone to your location to observe. It is highly recommended that someone be present during this time. Their testimony, not only to the administration of the test, but also to their opinion of your condition at that time, may be helpful should your case go to trial.
Luckily, each of these tests have good defenses that should be explored by your Wake County DWI Lawyer. Challenging the administration of the test and the “clues” that were supposedly seen, in addition to exploring other explanations for the “clues” other than alcohol intoxication, your Attorney should be ready to discuss each of these with you.
Once the AlcoSensor is administered and the Roadside Sobriety Tests are given the officer will make a determination as to whether they believe they have probable cause to arrest you for violation of the North Carolina DWI Laws. If they do not believe they have probable cause, that will end the DWI investigation, if they do believe they have probable cause, you will be arrested.
Intoxilyer 5000 or Intoximeter EC/IR II Test
In most instances, you will be taken to a local police precinct for the administration of this test. Occasionally at North Carolina DWI Checkpoints, (also called a ‘North Carolina DUI Checkpoint’) they will have these machines on site to process those charged with DWI more quickly. The test is similar to the AlcoSensor test in that there is a machine being used to attempt to measure the level of alcohol on your breath. Before administering this test, the officer must read you your rights regarding the test and your right to refuse. Among these rights is the right to have a person present during the test. From the time of reading your rights, you have 30 minutes to get someone to your location to witness the test.
The Intoxilyer 5000 or Intoximeter EC/ICRII Breathalyzer Test is what is called an “implied consent” test. This means that, by driving on North Carolina roads, you have ‘implied’ to ‘consent’ to the test. This test will produce a numerical value for your blood/alcohol level which WILL be used against you in court. Luckily, there are defenses available even for those test results, however your case is easier to defend without them. Unfortunately, since this test is an ‘implied consent’ test, the refusal to provide a breath sample will result in the loss of your license for 12 months. Additionally, you will not be able to petition the court for a limited driving privilege for the first 6 months of that year. Keep in mind, however, if you are found guilty of North Carolina DWI Laws you will also lose your license. Also to be considered is the fact that, even if you refuse to provide a breath sample, the arresting officer can still attempt to obtain a warrant to take a sample of your blood, even without your consent.
Booking and Release
After the administration of the Intoxilylzer 5000 or Intoximeter EC/IR II Breathalyzer Test, you will be booked and go before a Magistrate. The Magistrate will make a determination as to whether to set bond or not and will advise you of your charges and your rights; including your right to counsel. In most instances, you will be released either to a sober friend or family member or you will be released once you are no longer intoxicated.
If not before, now is the time to contact a Raleigh DWI Lawyer to review your case. You will find there are many Raleigh DUI Lawyers out there, and you should find the one you are comfortable with. In addition to representing you in court, your Attorney should assist you in getting your license back and/or a limited driving privilege as soon as 10 days from your arrest (depending on your individual case). Contact DUI lawyer Raleigh M. Moseley Matheson at 919-335-5291 today for your FREE CONSULTATION!
Throughout this page, as well as others, you will notice a common theme: be polite and respectful to the police officers. Beyond the fact that it is just good manners, it serves an additional, important role. In most North Carolina Criminal Cases, if it comes before a Judge for sentencing, he or she will likely ask the Police Officer whether you were polite and cooperative. If you are found guilty or plead guilty to a North Carolina DWI, the Judge may consider your actions during your stop/arrest, and it can factor into your sentencing. As a Raleigh DWI Lawyer and Holly Springs DWI Lawyer, I feel all North Carolina DUI Lawyers should advise their clients the same. Therefore, regardless of your opinion of how the officer handles you during your stop and arrest, always remain polite and respectful.