Your Rights as they relate to a DWI Arrest

A DWI/DUI/Drunk Driving/Impaired Driving arrest is unlike any other criminal offense in North Carolina. Numerous statutes and laws have been created to aid law enforcement officers and the prosecutors in the enforcement of impairing driving offenses. However, as a result of so many different statues and laws a high burden has been set upon the State to correctly follow the procedures or evidence could be suppressed and your case ultimately dismissed by the Court.

There are essentially four main pre-trial motions that a skilled DWI criminal defense attorney can examine in preparing your defense to a DWI charge. Should the defendant successfully prevail in any one of these pre-trial motions then evidence could possibly be excluded from your trial. This exclusion of evidence will likely make the prosecutor’s job much more difficult upon proving guilt beyond a reasonable doubt. In addition, the Court may also rule that as a result of any one of these violations that your case should be dismissed.


First, the State must prove the law enforcement officer that stopped you had reasonable articulable suspicion (or RAS) to perform a seizure of your rights. When you are operating a motor vehicle on a street or highway in North Carolina, you have the right to drive without unreasonable interference by the police. Before an officer can pull of your vehicle, the officer must have made an observation of conduct which leads the officer to reasonably believe that criminal conduct may be afoot. State vs. Foreman. The police officer must be able to point to specific and articulable facts, which taken together with rational inferences from those facts, reasonably warrant [the] intrusion. Terry v. Ohio.

Excluding checkpoints (discussed in a separate area on this website), the government cannot stop you while operating a vehicle simply based upon a hunch that a criminal offense may be occurring. Courts “must look at the ‘totality of the circumstances’ of each case to see whether the detaining officer has a ‘particularized and objective basis’ of suspecting legal wrongdoing…” US vs. Arvizu, 532 U.S. 266 (2002). Sometimes a law enforcement officer does not attempt to develop reasonable suspicion before instructing a person to stop and as a result, if the State fails to establish that the stopping officer lacked RAS, the Court should suppress all evidence in your case and dismiss your case.


Second, before a police officer can make an arrest the officer must have probable cause (or PC). The State must establish that the officer had PC to make an arrest. Probable cause to arrest is a higher standard than reasonable suspicion to stop, however PC is a lower standard than beyond a reasonable doubt. For the State to establish probable cause, it must show that at the time of the arrest the officer has within his/her knowledge reasonably trustworthy facts and circumstances sufficient to warrant a reasonable prudent person to believe that the suspect has committed or is committing a crime. Beck vs. Ohio, 379 U.S. 89 (1964). PC is based upon the totality of the circumstances and is to be determined in each case in light of the particular circumstances and the particular offense involved. The degree of certainty for probable cause is a fair probability. State vs. Crawford, 125 N.C. App. 279 (1997).

Again, there are many times the State fails to establish PC to make an arrest and as a result the Court should suppress evidence related to your case and dismiss your case.


In addition to RAS and PC, the State must establish that the law enforcement officer properly administered your implied consent rights upon issuance of a breath test or that the officer obtained a valid search warrant for your blood if you refuse to perform a breath test. Your implied consent rights must be given to you orally and in writing generally after you have been arrested, but before you are required to submit a breath sample. Your implied consent rights advise you of the following:

a)  You have been charged with an implied-consent offense. Under the implied-consent law, you can refuse any test, but your drivers license will be revoked for one year and could be revoked for a longer period of time under certain circumstances, and an officer can compel you to be tested under other laws.

b)  The test results, of the fact of your refusal, will be admissible in evidence at trial.

c)  Your driving privilege will be revoked immediately for at least 30 days if you refuse any test or the test result of 0.08 or more, 0.04 or more if you were driving a commercial vehicle, or 0.01 or more if you are under the age of 21.

d)  After you are released, you may seek your own test in addition to this test.

e)  You may call an attorney for advice and select a witness to view the testing procedures remaining after the witness arrives, but the testing may not be delayed for these purposes longer than 30 minutes from the time you were notified of these rights. You must take the test at the end of 30 minutes even if you have not contacted an attorney or your witness has not arrived.

As a result of this statute, if you have been arrested for impaired driving and are requested to perform a breath test (normally on a machine called and Intox EC/IR II) then you are provided 30 minutes to contact a witness or attorney before you can be required to provide your first breath sample. If the officer improperly advises an offender of these right or fails to follow a proper observation period before requesting the breath test to begin, the breath alcohol results of the breath test may be suppressed preventing the State from using your BAC at trial. A criminal defense attorney will file what is called a “Ferguson Motion” on your behalf and make the argument to the Court that your breath rights were violated. The Court held in State vs. Ferguson, that “the denial of access to a witness in this case- when the State’s sole evidence of the offense is the personal observations of the authorities- would constitution a flagrant violation of the defendant’s constitutional right to obtain a witness under the North Carolina Constitution and as a matter of law require that the charges be dismissed. State vs. Ferguson, 90 N.C. App. 513 (1988).

In addition, the Court similarly held in State vs. Hill that the denial of the constitutional and statutory right to communicate with counsel and friends and at the time when the denial deprived him of any opportunity to confront the State’s witnesses with other testimony, that under these circumstances requires the Court to dismiss the criminal charges.   State vs. Hill, 277 N.C. 547 (1971).   The Court must conclude pursuant to N.C.G.S. §15A-954(a)(4) that “[t]he defendant’s constitutional rights have been flagrantly violated and there is such irreparable prejudice to the defendant’s preparation of his case that there is no way but to dismiss the prosecution.” If the Court concludes the State violated these rights then your BAC should be suppressed and case may be dismissed.


Lastly, the State must establish that the magistrate who set the conditions of your release followed the law in accordance with N.C.G.S. §20-38.4, N.C.G.S. §15A-534 and N.C.G.S. §15A-534.2.   This statute requires, among other things, that a magistrate who finds probable cause for an offense involving impaired driving consider whether the defendant is “impaired to the extent that the provisions of N.C.G.S. §15A-534.2 should be imposed.” If a magistrate “finds by clear and convincing evidence that the impairment of the defendant’s physical or mental faculties presents a danger, if he is released, of physical injury to himself or others or damage to property, the judicial official must order that the defendant be held in custody and inform the defendant that he will be held in custody until” (1) the defendant is no longer impaired to the extent that the defendant poses a danger or (2) a sober, responsible adult is willing and able to assume responsibility for the defendant until the defendant is no longer impaired.

N.C.G.S. §20-38.4 also requires a magistrate conducting an initial appearance for an implied consent offense to “[i]nform the person in writing of the established procedure to have others appear at the jail to observe his condition or to administer an additional chemical analysis if the person is unable to make bond.” A magistrates must also “[r]equire the person who is unable to make bond to list all persons he wishes to contact and telephone numbers on a form that sets forth the procedure for contacting the persons listed.” These statutory violations are filed by a criminal defense attorney in what is known as a “Knoll Motion”. State vs. Knoll, 332 N.C. 535 (1988). If a magistrate fails to follow these statutory requirements, then based upon the evidence, the Court may conclude that a defendant suffered prejudice resulting from the improper detention the case should be dismissed.

Please visit our Resource Center to view more DWI information like Understanding Limited Driving Priveledges after an Impaired Driving Conviction in NC.