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A Broken Record: Proving an effective DWI defense
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A Broken Record: Proving an effective DWI defense

I. Words Matter in the Law

We all know words matter. Sometimes, one single word makes the difference, too. Especially, when dealing with an alleged habitual dwi, or driving while license revoked (DWLR), in North Carolina.  The statistics indicate that one in seven North Carolina drivers, at some point in their driving history, will have a suspended driver’s license. There are all too many of these cases, without the help of a DWI defense attorney, where the record or case is not clearly presented. This can happen for several reasons. Sometimes, people do not actually get a truly experienced DWI defense attorney. This can have the ripple effect of having evidence improperly presented. Sometimes, agreements between the DWI defense attorney and prosecutor may even fail to be properly entered into the trial record. This confusion could be seen as part of the process of complicated DWI cases, where there are many charges. Having an experienced DWI defense attorney will help assure that the record is accurate. This experience can also have positive consequences when it comes time to trying to get your driver’s license back.

One case from Durham County, involving a Mr. Scott, had serial charges of: DWI, habitual DWI, driving while his license was revoked, carrying a concealed weapon, possession of a firearm by a felon, and being a habitual felon. The jury found Scott guilty of DWI, but not guilty of carrying a concealed weapon. Scott pled guilty to the DWLR, but also moved to dismiss the DWI based on insufficient evidence. The court granted the DWI defense attorney’s motion to dismiss the DWI.

But this is where the confusion really arose. The judge had specifically asked: “…and you were saying habitual DWI is habitual felon, is the underlying charge to support the habitual felon?” This captured an agreement between the parties about what offense, if any, to consider in the trial or sentencing. The upshot of this was also that if the DWI habitual was dismissed, then so would the habitual felon charge. The court order, however, only said that Scott was convicted of “driving while impaired.” Did this include the habitual charges or not?

There was another wrinkle. The jury convicted Scott of the DWI. The DWI defense attorney, before sentencing, moved to dismiss the DWI for insufficient evidence. The judge agreed, but and dismissed the DWI charges. It became so convoluted, that the state appealed the DWI dismissal itself, in such a way as to also retry the question of habitual DWI.

II. Double Jeopardy is a common issue in DWI habitual felony charges.

The DWI defense attorney knew that Double Jeopardy should be an issue. DWI charges often involve similar elements in different offenses. At any time that someone is prosecuted for a habitual DWI charge, it is important to have an experienced criminal defense attorney addressing this potential issue. In terms of the North Carolina Supreme Court review of this case, however, there was only one paramount issue…was there a verdict on the habitual DWI charge or not?

III.   The Elements of DWI

One of the most important things than an effective DWI defense attorney does is to separate key issues. A combination of errors and disagreements or misunderstandings in this case, had confused the difference here between DWI habitual and the dismissed DWI charge itself. The DWI defense attorney had already successfully argued that there was not a strong case. This was reflected in the trial judge’s failed attempt at dismissal of the DWI charge. As noted above, lose one, lose them both. The Supreme Court agreed, to a certain extent. In fact, the court said, “if the evidence is sufficient only to raise a suspicion or conjecture as to either the commission or the offense or the identity of the defendant as the perpetrator of it, the motion [ to dismiss] should be allowed.”

Unfortunately, there’s often a tendency to give the benefits of doubt, in sufficiency of evidence, to the state. As the Supreme Court put it, “giving the state the benefit of all reasonable inferences.” In this particular case, that certainly worked against Scott in this appeal. Thus, the habitual DWI charge was reinstated. The state had sufficient evidence showing that Mr. Scott had been going over 60 miles an hour without motor vehicle tags. Perhaps the biggest obstacle that the DWI defense attorney had was Mr. Scott’s conduct once the police officer had “hit the lights.” In fact, Mr. Scott did not immediately stop, and “didn’t finally stop until you reached an intersection.”

IV. Retrials Can Be A Partial Success

So, despite the relative success of the DWI defense attorney in having the concealed weapon charge dismissed, the Supreme Court was looking for a different result overall. The emphasis was on having a consistent DWI process, where it didn’t matter if the motion to dismiss came before or after any guilty decision by the jury. At the least, the DWI defense attorney had succeed in getting the case, and the record clarified in a new trial. This case was clearly complicated by the intentions of the trial court judge, and the error in the court record. Notably, the Supreme Court also observed that the criminal offense attorney did not move for dismissal or non-suit after the introduction of evidence. Whether this should’ve made a greater difference or not, is another reason to make sure that any DWI related case is always presented by only the most experienced DWI defense attorney.


This case showed how important it was to have only an experienced DWI criminal defense attorney. They make sure that the record is accurate, and even protected in case of an appeal. But it goes further than that. There are well over 1 million suspended licenses in the state already. Unfortunately, a great number of those should never have been suspended. If you have an experienced DWI attorney on your case, they will help you make sure that the record is kept straight, and you have the best chance of success.

If you, a family member or a loved one have questions about any arrest, or involving related claims or your legal rights or hearings, including (but not only) DWI issues, please contact us.  You will speak with an experienced criminal or DWI defense attorney, who can best answer your questions about how your rights can be protected. 

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