Should you give a breath sample when stopped for DWI 2 of 3

Part 2 or 3 How do you know if you are over the limit?  Educate yourself.  There are many online BAC calculators that you can use to estimate a hypothetical BAC using your gender, age, weight, amount consumed and time elapsed.  Enter in how much you would typically drink on a night out, over how much time and what your level is.  You may be surprised to know that BAC has nothing to do with tolerance, meaning you can be over the limit and still feel in control.  Generally, women get to .08 much faster than they think, with as little as two glasses of wine.  Keep in mind that these calculations are general.  Individual results will vary.  CAUTION: if you use any controlled substances, including prescription drugs in combination with alcohol, the intoxicating effects can be greatly magnified.  In our experience, Judges and Juries are much less forgiving of people who combine drugs and alcohol. Calculating your BAC depends on your gender and your weight. Alcohol is absorbed differently by men and women. Men's bodies handle alcohol better. Men typically weigh more than women and so have the advantage in absorbing alcohol. For instance, a 180 pound man who has had four drinks in one hour will have a BAC of .08. In the same hour, his 120 pound female friend needs only two drinks to reach the same BAC of .08. The average person will go down by .015 per hour. Bottom line: If and only if, you are positive that you are under the limit, you should seriously consider giving a breath sample in the intoximeter so you don’t automatically lose your license. You must decide for yourself.  But you don’t have to do it alone.  Call us after hours at 828-393-3000 for a consultation.  However, if you think you may be over the limit, consider the following: EVERYTHING YOU SAY CAN AND WILL BE USED AGAINST YOU.  All of your behavior and actions will be scrutinized, recorded and attributed to being appreciably impaired.  Once the officer has a suspicion that you are driving while impaired, he is building his case against you.  He is taking notes, he may be recording you with video or audio equipment and he is not going to let you go.  Always be polite and cooperative, but understand that you have the legal right to refuse all roadside testing without having your license revoked.  The officer won’t be happy, and may be very insistent that you submit to various psychophysical testing such as the Walk and Turn, HGN (Horizontal Gaze Nystagmus) , One Leg Stand and Portable Breath Test, but you are not required by law to cooperate with any of it.  He may place you under arrest for suspicion of DWI based on other factors such as bad driving, odor of alcohol, general appearance, behavior, noticeable impairment, et. cetera but you are not legally obligated to perform any field sobriety tests. Prior to being placed under arrest, you have the right to request a Pre-Arrest test.  See Footnote NCGS § 20-16.2[i].  If you clearly request this, you will be voluntarily detained by the officer, transported to the intoximeter, where you will be given the choice to blow. Once you are placed under arrest for DWI, you will be brought to an intoximeter, the large mandatory breath test machine.  There are a number of specific procedures that must be followed and rights that must be recognized for the results of an intoximeter to be allowed into court.  A list of issues that arise with the breath testing machines include:
  • You must be informed of your right to have a witness.  (This should be a sober person who can later testify as to your apparent sobriety or lack of impairment.)
  • If you do not waive the right, you must be granted 30 minutes to allow the witness to arrive.
  • The machine must have been duly and properly calibrated and maintained.
  • The chemical analyst must be properly trained and admitted as an expert.
  • You must be observed to ensure that you did not consume anything or burp or vomit prior to blowing into the machine, all of which can interfere with the reading.
  • At least two breath tests must have been given on the machine with proper time given between each test.
  • The two breath tests cannot be more than 0.02 apart in the results.
  An officer must also inform you that you have a right to refuse taking a breath test on the intoximeter, but your license will be revoked for a year if you do so.  Again, you can refuse to take a breath test, but, as a result, you will lose your license for one full year, during the first six months of which you will be ineligible for a privilege. [i] "(i) Right to Chemical Analysis before Arrest or Charge. - A person stopped or questioned by a law enforcement officer who is investigating whether the person may have committed an implied consent offense may request the administration of a chemical analysis before any arrest or other charge is made for the offense. Upon this request, the officer shall afford the person the opportunity to have a chemical analysis of his or her breath, if available, in accordance with the procedures required by G.S. 20-139.1(b). The request constitutes the person's consent to be transported by the law enforcement officer to the place where the chemical analysis is to be administered. Before the chemical analysis is made, the person shall confirm the request in writing and shall be notified: (1) That the test results will be admissible in evidence and may be used against you in any implied consent offense that may arise; (2) Your driving privilege will be revoked immediately for at least 30 days if the test result is 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. (3) That if you fail to comply fully with the test procedures, the officer may charge you with any offense for which the officer has probable cause, and if you are charged with an implied consent offense, your refusal to submit to the testing required as a result of that charge would result in revocation of your driving privilege. The results of the chemical analysis are admissible in evidence in any proceeding in which they are relevant."


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