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Tuesday, January 8, 2013

DWI/DUI- The Race to the Chemical Test

The Charlotte Observer published an article yesterday titled Police: New breath-test process leads to more DWI guilty pleas. The article describes how police officers will now have the ability to conduct a breath test prior to a person being booked into Mecklenburg County Jail for a DWI/DUI. The article concludes that this new procedure could lead to more DWI guilty pleas in Mecklenburg County District Court. However, the article does not address other vital facts that comprise a DWI/DUI.

The current practice requires the police officer to basically book the arrestee into jail prior to asking him/her to submit to a breath test. Currently, as much as one to two hours can pass before a person is asked to submit to a chemical test, specifically a blood or breath test. Why, some ask, is there such a priority to obtain a breath/blood sample?

If you are charged with a DWI/DUI in Mecklenburg County, one of the primary concerns both the prosecutor and the criminal defense attorney share is the result of the breath/blood result. A prosecutor wants that breath or blood result as close to the time of driving as possible; arguably, the closer the test is to the time of driving, the easier it is to prove they were driving over the legal limit.

The law in North Carolina requires the State prove a person drove a vehicle after consuming sufficient alcohol in which they had, at any relevant time after the driving, an alcohol concentration of .08 or more. However, North Carolina does not require, as some states do, the prosecutor to show that the person drove at .08 or more at the time of driving, only that the person drove after having consumed. In States that do require .08 at time of driving, the race to the chemical test is important. However, in Mecklenburg County, how the officer conducts his DWI/DUI investigation can be even more important. The news story at the end of this post demonstrates this point.

Many officers are very quick to rely on breath and blood results. There is a breath test that is performed in the field as the officer is conducting his investigation. However, to the surprise of many, the result of that test is not admissible at trial. Many former clients have stated the police officer told them that they were required to submit to the test in the field. This is not true; the article alludes to this in paragraph 8.

In addition, the law requires the officer have probable cause to arrest a person before they are asked to submit to a blood or breath test. What an officer observes and reports in the field is just as important as the breath result. Law enforcement can have all the technology available to them. A jury will always want to know what the officer saw in the field.

This story was in the news over the weekend. It demonstrates that DWI cases are rarely straightforward. Regardless of the ultimate time between arrest and chemical test, DWI/DUI's are not just about alcohol results. A proper investigation and the credibility of officers involved should never be overlooked.

Charlotte Criminal Law Attorney Updates Provided By The Law Office of Carilyn Ibsen PLLC (888)543-2427


posted by Carilyn Ibsen at


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