Law Office of Frank Chen

TRAFFIC/DWI/CRIMINAL DEFENSE

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TRAFFIC LAW / DRIVING WHILE IMPAIRED

Attorney Frank Chen is pleased to write the following about traffic law and DWI laws.  This is just a general guideline.

TRAFFIC LAW

Speeding

Speeding is usually by far the most common traffic offense that people are cited for.  It is pretty much universally known as an every man’s crime.  The points associated with speeding tickets vary, depending on the number of miles an hour over the limit as well as the speed of conviction.  In addition, school zone and work zone tickets carry an additional penalty. 

It should be noted that when a speeding charge is reduced down to 9 mph or less over the speed limit, the driver is generally eligible for an insurance point waiver, provided that they have not received any other violations or been involved in a car accident where their insurance company paid out in the last 3 years.  It is important to note that license points and insurance points are not the same thing.  Even though the person’s insurance premium does not rise, they may still receive driver’s license points.

When a person is convicted of a speeding charge where the overall speed of conviction is higher than 55 mph and the person was convicted of speeding over 15 mph over the speed limit, the person may have his or her license revoked by DMV.  What this means is that a 61mph in a 45 mph zone will cause a license revocation.  A 56 mph in a 40 mph zone will also trigger a revocation.  Interestingly enough, a 54mph in a 20 mph school zone actually will not trigger an automatic revocation because the speed is under 55 mph.

A school zone ticket carries a mandatory minimum fine of $25 while work zone tickets carry a fine of at least $250.   While every county has a different set of policies, some prosecutors will negotiate tickets out of school zone or work zones.  A few Judges may also consider a Prayer for Judgment in exchange for some community service on school zone tickets.  Be aware that while a reduction to 9 miles an hour over the speed limit on a work zone ticket still allows one to receive an insurance waiver, a reduction to 9 miles an hour over in a school zone ticket is usually worthless because it is not eligible for an insurance waiver.  It is important to note that all work zone tickets are classified as infractions no matter how high the speed the offender was charged with.  What this means is that one can mail all work zone tickets in.  This can actually be a trap since the revocation rules still apply.  Thus, a person who mails a speeding ticket in a work zone in for an 82mph in a 65mph zone will lose his or her license.

Although not available in all counties, an improper equipment is a non-moving violation offense that some prosecutors use.  What often happens is that minor speeding tickets get reduced to an improper equipment so that the offender will not receive any license or insurance points.

Stop Signs and Redlights

The penalty for running a red light or failing to stop for a stop sign is generally the same in NC.  If an accident was involved, there is usually a fairly good chance that the charges can be dismissed upon furnishing evidence that all the damages have been paid out and settled by the offender’s insurance company.  Sometimes these charges can be reduced to city codes or improper equipments which do not carry insurance or license points.  Again, it often depends on the county whether this is possible or not.  Prayer for Judgments are frequently used to allow offenders to receive no license points or insurance points for stop sign and red light tickets in some counties.

Careless and Reckless

A common misconception is that a careless and reckless driving conviction will result in the automatic suspension of one’s license.  This is not true, although a C+R is a misdemeanor and carries both 4 dmv points and 4 insurance points.  This generally results in a 90% or higher increase in one’s insurance upon conviction.  Careless and reckless driving is governed by NCGS 20-140.  For one to be guilty of this offense, one must drive a vehicle, “upon a highway or any public vehicular area carelessly and heedlessly in willful or wanton disregard of the rights or safety of others,” or “without due caution and circumspection and at a speed or in a manner so as to endanger or be likely to endanger any person or property.”

License Suspension

There are many ways for one to get their NC Driver’s License suspended or their NC driving privileges suspended.  The following are a number of the more frequently seen reasons:

1)      Accumulating 12 or more points (dmv pts) within a 3-year period

2)      Within a 12 month period: a) been convicted of 2 speeding tickets where the speed of conviction was greater than 55 mph, b) convicted of careless and reckless driving as well as a speeding ticket greater than 55 mph, or c) convicted of aggressive driving as well as a speeding ticket greater than 55 mph.

3)      Been convicted of speeding at a speed greater than 75 mph when the speed limit was under 70 mph

4)      Been convicted of speeding over 80 mph where the speed limit is 70 mph

5)      Been convicted of a moving violation while the person’s license was in a state of revocation

6)      Been convicted of Driving While License Revoked

7)      Been convicted of DWI or other alcohol related offenses

8)      Been convicted of pre-arranged racing

 

Driving While License Revoked

Driving While License Revoked is actually a Class 1 misdemeanor punishable by up to 120 days in jail.  It also carries a mandatory additional license suspension that can range from 1 year to permanent revocation.  Many people are not arrested for this offense and do not treat it nearly as seriously as he or she probably should.  In general, most prosecutors and judges look at these cases in two categories based on whether the person’s license was revoked for an alcohol related offense or not. 

The most common way a person’s license is revoked is when a person neglects to take care of other traffic matters and misses court.  As a result of the failure to appear, the person’s license is indefinitely suspended.  Then the next time a police officer runs that person’s plates, the officer finds out that the person’s license is suspended. Generally, these cases can be handled best when the person goes back and resolves all the cases that they neglected in the first place.  Then the person pays all restoration fees and gets their license back.  Upon re-issuance, the person is much better equipped to deal with the Driving While License Revoked charges.  Sometimes people fail to appear for multiple charges and also fail to appear on other driving while license revoked charges.  These cases can become extremely complicated very quickly and can be very time consuming. 

Alcohol related suspensions triggering driving while license revoked charges are of a different nature.  The sentences associated are frequently tougher.

License Restoration

When one loses his or her license due to numerous failure to appears and driving while license revoked charges, it may be possible for an attorney to sift through the mess and find a way for the person to pay off certain tickets, get certain charges dismissed, have certain charges PJC’ed, and eventually get a license restoration.  Sometimes the process is fairly simple.  Sometimes it is extremely complex, difficult, and can span several counties if the person picked up various charges in different counties throughout the state.  Nonetheless, for a $50 fee I will pull anyone’s driving record no matter how hopeless it seems and have a consultation with him or her about the prospects of a license restoration.  Again, if the chances are slim to none, I will certainly let the person know and will not advertise false hope.

Prayer for Judgment

I probably hear more misinformation regarding what a Prayer for Judgment (PJC) is or what the consequences of receiving one is than anything else.  To receive a PJC, one must first plead guilty or responsible in front of a Judge to be considered for one.  Thus, the plea is technically guilty.  What the Judge is doing is indefinitely continuing the judgment, generally upon payment of court costs.  So what does this mean?  Well, it technically does not count as a conviction on your record.  However, it will show up as a PJC in both DMV and court records.  The DMV allows two PJC’s every 5-years for DMV purposes while insurance companies generally only allow 1 PJC per household every 3-years.  PJC’s are also ineffective for those holding Commercial Drivers Licenses (CDLs).  It should also be noted that PJCs do count as convictions for sentencing purposes under the felony punishment chart for sentencing of felonies.  In addition, PJCs for speeding tickets where the rate of speed is greater than 25 mph over the speed limit are ineffective.  In addition, PJCs are entirely at the Judge’s discretion.  It is NOT a given right.  Sometimes a person is denied a PJC on a relatively minor traffic matter such as running a stop sign because when the Judge asks the charging officer if the person was polite and cooperative, the officer tells the Judge that the person was profane and rude.  It never helps to be combative or rude with law enforcement.  It should also be noted that PJCs are usually used for minor traffic offenses and sometimes non-traffic misdemeanors on rare occasion when there is good reason.

Accident Cases

Oftentimes when one gets involved in an automobile accident, he or she gets cited for charges such as following too closely, failure to yield, exceeding safe speed, etc.  Generally these cases can be dismissed upon furnishing an insurance letter stating that all of the claims have been settled and that the insurance company has accepted full liability.  A general rule for a good insurance letter would be that the letter contain 3 things. 1) The letter must be on the company letterhead. 2) The letter must state that all of the damages have been paid and settled and that liability has been accepted. 3) There should be a dollar amount on the letter stating just how much they paid. 

Sometimes insurance companies deny liability or people receive these charges when near accidents occur.  If this occurs, another route can generally be taken to reduce or dismiss the charges.


Driving While Impaired (DWI)

This offense is widely known as DUI (Driving Under the Influence) in other states and jurisdictions.  Driving While Impaired is basically operating a motor vehicle while under the appreciable impairment of a substance while on a highway or public vehicular area.  The legal limit in North Carolina is still 0.08 BAC.  This means that you are guilty at 0.08. 

Every year thousands of people are charged with Driving While Impaired (DWI).  This can be a very nervous or anxiety producing experience as most offenders have never had a run in with the law before.  In addition, he or she is arrested and taken to the county jail for processing usually.  DWI convictions generally result in one losing his or her license for a year, community service, probation, and a very hefty fine.  Depending on a person’s driving record and both aggravating and grossly aggravating factors, a person can be facing up to two years in state prison and a $4000 fine. 

DWI’s are one of the most litigated kinds of cases today.  Because there is no real lesser included offense, this type of offense is usually an “all or nothing” type deal.  Assistant District Attorneys pretty much do not negotiate DWI’s to lesser included offenses such as Careless and Reckless Driving.  Generally, you either plead guilty or you go to trial.

Fighting your DWI

There are many points in a typical DWI arrest that may lend triable issues.  The first of course is usually the stop.  A law enforcement officer is not allowed to pull cars over for no reason at all.  Generally, reasonable suspicion of a crime being committed is required to stop a vehicle.  After the vehicle is stopped, the officer furthers his investigation frequently by asking for the driver’s license and registration.  In addition, for DWI arrests, the officer is usually going to ask for the driver to perform some standard field sobriety tests (SFSTs) and assess the driver’s performance.  Furthermore, many officers will ask the driver to blow into a portable breath test machine (PBT).  If the officer decides to place the individual under arrest and take them downtown, probable cause is required for the arrest.  

It is also required that the defendant be read his or her rights and be allowed to call a witness within a reasonable amount of time.  Once at the police station, subjects are usually asked to take another blood alcohol concentration test.  The most commonly used machine is the Intoxilyzer 5000.  It is important to note that many proper procedures must be followed by the police for this Intoxilyzer result to be valid.  For example, the police have to have observed the subject for at least 15 minutes prior to the tests to make sure that the subject did not swallow, smoke, or ingest anything.  In addition, the chemical analyst’s affidavit with regards to the test must be filled out properly if the charging officer is not the chemical analyst, unless the chemical analyst is going to testify himself or herself in court.  Regular preventive maintenance is required on all Intoxilyzer machines.  As one can plainly see, there are a number of points in a DWI arrest that can have legal issues. 

Remember that it is the State of North Carolina that must prove beyond a reasonable doubt that the driver was committing the offense of DWI.  The assistant DA must prove each and every element of the offense beyond a reasonable doubt.  That burden is often higher than what many may believe, especially when sometimes some or all of the evidence can be excluded.

Punishments

DWI punishments are grouped into 5 Levels with Level 1 being the most severe and Level 5 being the least severe.

Level 5 Punishment

Level 5 punishment is imposed when there are no grossly aggravating factors, and the mitigating factors outweigh the aggravating factors.  The maximum punishment is 60 days in jail, a $200 fine, and if the defendant is put on probation, 24 hours of jail or community service is required.  People found guilty of Level 5 DWI generally receive a probationary sentence and are required to do the 24 hours of community service or serve 24 hours in jail within 60 days. In addition, the defendant is going to lose his or her driver’s license for one year typically.  A limited driving privilege is generally allowed, provided that the person did not refuse the BAC test at the police station.

Level 4 Punishment

Level 4 punishment is imposed when there are no grossly aggravating factors, and the mitigating and aggravating factors substantially balance each other out.  The maximum punishment is 120 days in jail with a $500 fine.  If the person is put on probation, 48 hours of jail or 48 hours of community service will be required as a special condition of probation.  This is typically like a Level 5 except the person will have to do more community service or jail time.  There is also an increased likelihood of supervised rather than unsupervised probation.

Level 3 Punishment

Level 3 punishment is imposed when there are no grossly aggravating factors, and the aggravating factors outweigh the mitigating factors.  The maximum punishment is 6 months in jail with a $1000 fine.  If the person is put on probation, 72 hours of jail or 72 hours of community service are required at the person’s election.  Please note that limited driving privileges are generally available to those convicted of Level 3,4, and 5 DWIs.

Level 2 Punishment

Level 2 punishment is imposed when there is one grossly aggravating factor.  It does not matter how many mitigating factors may be present, once someone has one grossly aggravating factor, he or she will be sentenced as a Level 2.  A Level 2 carries a maximum of 1 year in prison and a $2000 fine.  One convicted of a Level 2 is NOT eligible for a limited driving privilege at conviction.  It is very important to note that one convicted of a Level 2 is REQUIRED TO SERVE 7 DAYS IN JAIL at a minimum.  If the defendant is put on probation, 7 days of active jail time is still required as a special condition of probation.  It is also important to note that inpatient days in an alcohol/drug rehabilitation facility can count as days in jail.

Level 1 Punishment

Level 1 DWI is considered the most severe misdemeanor.  This is when there are two or more grossly aggravating factors.  Mitigating factors, like with Level 2, cannot take one out of a Level 1 when there are two or more grossly aggravating factors.  A Level 1 carries a maximum of 2 years in prison and a $4000 fine.  The minimum active sentence for a Level 1 DWI is 30 days in jail.  If the sentence is suspended and the person is put on probation, 30 days of active jail time will still be a mandatory condition of probation.  As with a Level 2, inpatient treatment may give credit towards the mandatory active sentence.  Obviously, no limited driving privilege is allowed for Level 1 offenders.

Sentencing Factors

Grossly Aggravating Factors

If the offender has had a prior DWI conviction involving impaired driving (in NC or elsewhere) within the last 7 years to the date of the offense, it counts as a grossly aggravating factor.

If the offender was driving while his or her license was revoked because of an impaired driving conviction or civil revocation, this counts as a grossly aggravating factor as well.

If the offender was driving with a child under the age of 16 in the vehicle at the time of the offense counts as another grossly aggravating factor. 

If serious injury results to another person caused by the impaired driving, there is another grossly aggravating factor. 

Aggravating Factors

If the offender’s blood alcohol concentration is proved to have been 0.16 or greater, it counts as an aggravating factor. 

Especially reckless or dangerous driving also counts as an aggravating factor. 

A car accident that is severe enough to report also counts as an aggravating factor. 

A prior DWI or other implied consent offense conviction that occurred more than 7 years ago counts as an aggravating factor as well.

Driving while impaired while the offender’s license was also revoked also counts as an aggravating factor.

Speeding over 30 miles an hour over the limit or attempting to flee the police also counts as an aggravating factor. 

This list is not complete as other factors can be found as aggravating factors as a judge sees fit.

Mitigating Factors

A statutorily safe driving record (no conviction of any 4 point tickets within the last 5 years) counts as a mitigating factor.

Obtaining a substance abuse assessment after being charged and starting the treatment also counts as a mitigating factor. 

Only slight impairment solely from alcohol with an alcohol concentration of 0.09 or less also counts as a mitigating factor.

Impairment caused by a lawfully prescribed drug where the drug was also taken in the prescribed dosage also counts as a mitigating factor.

Many Judges will also consider being polite and cooperative with the authorities as a mitigating factor. 

Limited Driving Privileges

First, there are two types of limited driving privileges for DWI’s and other implied consent offenses: Pre-trial and Post Conviction.

Pre-Trial

 When one first gets arrested for DWI, the officer usually takes the person’s license, and the defendant’s license is automatically revoked for 30 days.  After Day 30, the defendant can go back to court and get his or her license back and keep driving with no restrictions as if the incident never occurred.  However, after Day 10, a person may be eligible for a pre-trial limited driving privilege.  Provided that the person will not be sentenced as a Level 1 or 2 if convicted, he or she will generally be eligible for a pre-trial privilege provided it wasn’t a refusal to a chemical test.  The documents that the person will need to furnish to a district court judge will be a DL-123 (proof of insurance), a certified driving record, a substance abuse assessment, 3 copies of the limited driving privilege signed, and a $100 filing fee.  On Day 11 after the arrest, once these items are furnished, a judge may sign the pre-trial limited driving privilege allowing the defendant to drive from Day 11 to Day 30.  As previously mentioned, after Day 30, he or she can go and get his or her original license back.

Post-Conviction

If the defendant is convicted of a DWI and is sentenced under Level 3,4, or 5, he or she will generally be eligible for a limited driving privilege, provided it wasn’t a refusal case.  A refusal case is one where the offender refused to blow in the Intoxilyzer 5000 at the station or at the Blood Alcohol Testing (BAT) mobile for DWI checkpoints.  For a Judge to sign a valid limited driving privilege after conviction, the defendant needs to furnish a substance abuse assessment, a DL-123, $100 filing fee, a certified driving record,3 copies of the limited driving privilege, and surrender his or her license.  It is basically the same materials required for the pre-trial privilege.  If the offender has already obtained an assessment, he or she will not need to go and get a second one.  They will only need to comply with all recommended treatments.  The limited driving privilege will generally be good for the year that the offender’s license is revoked.  Privileges are limited to household maintenance, work, community service, and alcohol/drug education classes.

Refusals

When one refuses to submit to a chemical test at the police station (meaning that he or she refuses to blow in the Intoxilyzer 5000), the DMV will revoke the defendant’s license immediately for 1 year.  However, a hearing on whether the defendant really did refuse the test or not is available.  This hearing is held at DMV where the only issue is whether the defendant willfully refused the chemical test or not.  If the defendant is convicted, then he or she loses his or her license for a year and will not be eligible for a limited driving privilege for at least 6 months.  If the defendant wins the DMV hearing, then he or she will not be counted as a refusal.  However, he or she can still be convicted of DWI later on in court and still lose his or her license.

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Resources courtesy of:

Law Offices of Frank Chen
300 Parham St., Suite B
Raleigh, NC 27601
(919) 358-6531
FAX (919) 834-6994
frank@nctraffic-criminal.com

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