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Tossing Bad DWI Arrests: Not Just ‘Technicalities’

I. Technicality=Constitutional Right

There are a lot of unfortunate phrases, describing an effective DWI defense lawyer’s job. It may be that the most misleading phrase award should go to “tossed out on a mere technicality.” The fact of the matter is that arrests for supposed or alleged impaired driving in North Carolina represent some of the toughest judgment calls for law-enforcement officers. There’s no reason to suspect a policeman’s difficulty of proving an impaired ability, in the field, should be any less easily proved in a court of law. Having a truly experienced dwi defense lawyer on your side will help make sure that your rights are protected everywhere. Even more importantly, important Constitutional rights associated with any stop on highways help provide the same guarantees to all of us.

In an interesting case involving Mr. Oliver, there were three very different, important considerations (yes, technicalities) about what could’ve been wrong with this DWI stop and arrest.

The traffic stop of Mr. Oliver occurred early one summer day. The trooper administered a chemical analysis on the site. As the DWI defense lawyer did admit, the trooper properly notified the defendant of specific rights in taking (or not taking) the Intoxilyzer machine. However, the same trooper that stopped Mr. Oliver also administered the test. This practice was to be challenged by the DWI lawyer. The chemical test revealed a supposed alcohol concentration of 0.08. That same day, a magistrate revoked Mr. Oliver’s driver’s license for 10 days. Oliver wisely got the help of a qualified DWI defense lawyer. Trial was held 11 months later, and following that district court trial, Mr. Oliver was found guilty. The experienced DWI defense lawyer quickly appealed the DWI conviction. The issues presented were: (1) the matter of possible Double Jeopardy; (2) a suppression motion for improper alcohol concentration testing; (3) whether a unanimous jury verdict (required under the North Carolina Constitution) was improperly impeded.

II. I’ll take Double Jeopardy For $50

Experienced DWI defense lawyers carefully scrutinize not only elements in the charges of a driving offense. The DWI defense lawyer also closely examines the punishments that are passed out. For example, in this particular case, the 10-day suspension was one sort of penalty. Being found guilty of the DWI could be argued as a second penalty. Double Jeopardy sometimes comes into play when these separate penalties are for the same offense, by different agencies or entities. Thus, the clever argument made by the DWI defense lawyer may point out how Double Jeopardy – multiple punishment for the same offense – can improperly occur when there’s an administrative decision and then a later court decision.

As clever as the argument by the DWI defense lawyer was, the State had a credible (if not entirely satisfying) response. The prosecutor argued that the license revocation was “only” a highway safety measure, instead of being a true ‘punishment.’ The Supreme Court majority agreed with this argument, and called the fine ‘merely remedial.’ At the federal level, however, the argument by the DWI defense lawyer has received a lot more weight. Under federal case law, punishments in terms of Double Jeopardy have increasingly acquired a broader definition than is currently being used in North Carolina. Clearly, this issue is not going to just go away. Though this case majority may have ruled against equating civil with criminal punishment, future DWI defense lawyers will continue to take a close look at whether Double Jeopardy is being wrongly used by the State of North Carolina in prosecuting DWI cases.

III.   Proper DWI Testing Is Not Just A “Technicality”

Instead of being a mere technicality, the DWI defense lawyer in this case wisely pushed to establish just what test procedures in the field should be used. One issue here was based on field chemical analysis of breath as opposed to chemical analysis of blood. It is such an important issue that there have been major revisions to North Carolina laws about police officer duties in this regard over the last several decades. One provision often calls for a police officer, who is going to administer the test, to be different from the officer who notifies the subject of his or her rights regarding the test. This helps protect the parties from being unduly coerced or failing to fully understand their legal rights. The technical distinction in this case, however, was based upon the type of license revocation involved…long-term revocation (the judges decided) was really the intention of the procedural test law. Thus, the court justices disagreed with the DWI defense lawyer, and did not find that the ten-day administrative suspension required the same provision of legal safety standards.

In this case, despite the ambiguity from the Assembly, the Court was mostly persuaded by one key fact. The arresting officer in this case had a valid, current permit to perform the chemical analysis with this automated instrument.

Along the same lines, making sure that the current qualifications of any police officer, administering any type of test, is a key factor. Officer competence is an argument often used by DWI defense lawyers to guarantee the process is more fair. Again, not a mere “technicality. “

IV.   Unanimous Decision or Not?

In order for a jury to convict on a DWI, it needs to have a unanimous decision. Recalling at the start of this article, the observation that “words matter.” In this case, the single word “or” made a difference. The judge gave the jury an instruction such a way that he indicated the jury could make two separate decisions…all by the use of the word “or.” Taken literally, it could mean some jurors would decide to convict with one set of facts, and other jurors using another recipe. Hardly “unanimous.”

This is what the judge said (look for the use of “or”) :

“I charge you that if you find from the evidence beyond a reasonable doubt that… Defendant…drove a vehicle on a highway within the state and that when he did so he was under the influence of an impairing substance or had consumed sufficient alcohol…it would be your duty to return the verdict of guilty of impaired driving.”

Again, the DWI defense lawyer made an interesting argument. Use of the word “or” suggested that the jury did not have to be unanimous on making the same decision about being on a state highway or having an alcohol concentration of 0.08 or more italics.

While impressed with the argument by the DWI defense lawyer, the Supreme Court judges concluded that the “disjunctive phrasing” may not have been ideal, but it was not a fatal mistake.


Though the arguments of the DWI defense lawyer in this case did not win a reversal on the DWI conviction, it raised interesting questions that will continue to trouble DWI prosecutions in the future. As per the evidence of the persuasiveness of an experienced DWI defense lawyer in this case, the dissent strongly disagreed with the majority on the 10-day suspension. The dissenting judge noted: “the loss of a driver’s license for 10 days is a harsh penalty.”

Because of the necessity of driving a vehicle in America, it’s not too surprising that one of the most common areas of contact, and conflict, between police and an average day, is on a highway or road.

If you, a family member or a loved one have questions about any DWI arrest, license suspension or involving related claims or your legal rights or hearings, including (but not only) jury issues, please contact us.  You will speak with an experienced DWI defense lawyer, who can best answer your questions about how your rights can be protected.  There is never a fee for this initial consultation.

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