Frequently Asked Questions
The following are answers to some frequently asked legal questions. However, each person’s circumstances are different. Please call DeMent Askew, LLP, to discuss the specifics of your case with an experienced attorney. We offer free initial telephone consultations and will give you the answers to your specific questions.
- What happens if I get charged with a DWI in North Carolina?
- When am I under arrest?
- What is the difference between a misdemeanor and a felony?
- What is the difference between and state and federal court?
- Do I have to hire a lawyer for my DWI?
- Will I lose my driver’s license?
- I was injured through no fault of my own. Can I file a personal injury action?
- Do I need to hire an attorney?
- How much does it cost to get a divorce?
- How much child support will I have to pay, if any? How is this determined?
- What happens if one parent’s financial situation changes?
- How often should I update my will?
What happens If I get charged with a DWI in North Carolina?
If you are charged as a result of a traffic stop, and the officer suspects impairment from alcohol, you will likely be taken to a police department or downtown Raleigh for a chemical test of your breath. You will be read your rights for the breath test.
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If you refuse to take the breath test, your license will be revoked immediately for a period of 30 days. In addition, you will be contacted via U.S. Mail at the address on your driver’s license, and notified of the beginning of a one year revocation of your driving privileges.
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If the officer listed you as a refusal, but you did not actually willfully refuse, you may request a hearing with the Division of Motor Vehicles to determine if you refused willfully. You may write a letter yourself, or with the help of an attorney, to request the hearing.
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If this is the first time you have ever refused the chemical test, you may be eligible for a limited privilege after the first 6 months, provided that the criminal case has been concluded and that you have received a substance abuse assessment and completed all recommended treatment
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If you have ever previously refused a chemical test on another DWI, the 12 month revocation for the current refusal is without any limited driving privilege
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Any revocation for the willful refusal is completely separate and apart from any revocation for a revocation for the criminal offense of DWI.
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If you take the breath test and register a .08 or higher, you license will be revoked immediately for 30 days.
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In any circumstance where there is a 30 day revocation, there is a mandatory $100 restoration fee due to the clerk’s office at the end of 30 days.
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In some circumstances, after the first 10 days of the 30 day civil revocation, you may be eligible to petition the court for a pre-trial limited driving privilege. The petition for the privilege is on the 11th day from the date you are charged and you receive the pretrial privilege on the 12th day, provided that these days are business days. There is a $100 filing fee at the clerk’s office for the petition for the pretrial privilege.
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If there is an automobile accident that results in you being taken to the hospital, or if the officer believes there is reason, you may be requested to submit to a blood test for alcohol or any other impairing substance.
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The same rules for refusals apply
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If you submit to the blood test, since there is no immediate result, you will not experience the 30 day revocation (though it may come about when the blood test results come back and is transmitted to the division of motor vehicles.) It can take between 6 and 12 months for blood test results to come back from the State Bureau of Investigation.
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In Wake County, North Carolina, the local rules of practice require that all motions to suppress or dismiss in a DWI be filed within 90 days of the date of the first court date.
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A person charged with DWI can expect that there will be a delay of 6 to 18 months from the time they are charged to the time their case is tried or pled before a District Court Judge.
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There is no plea bargaining in DWI charges.
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A Defendant can choose to either plead Not Guilty or Guilty. Those are the only options.
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DWI is a misdemeanor and a conviction is punished in one of 5 levels according to a balancing test of Aggravating factors and/or Grossly Aggravating factors balanced against Mitigating factors.
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Level 1 = 2 grossly aggravating factors
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Level 2 = 1 grossly aggravating factor
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Level 3 = the aggravating factors substantially outweigh the mitigating factors
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Level 4 = the aggravating and mitigating factors counterbalance each other
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Level 5 = the mitigating factors substantially outweigh the aggravating factors
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Punishments can range from up 2 years in prison for a level 1 down to unsupervised probation, 24 hours of community service, a one year loss of license, fines, fees and costs of court for a level 5.
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If you register a .15 blood/breath alcohol concentration or higher and you are convicted, your license will be revoked for a period of 45 days with no privilege from the date of your conviction and you will be required to have an ignition interlock device installed on your vehicle.
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If you are convicted of DWI and have a DWI in the last 7 years, you will be required to have an ignition interlock devise installed on your vehicle for a period of time designated by the Division of Motor Vehicles.
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If you are convicted of DWI and have a DWI in the last 7 years but outside of the last 3 years, you will have a one year revocation of your driver’s license with no privilege, followed by the interlock.
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If you are convicted of DWI and have a DWI in the last 7 years and inside 3 years from the date of your charge, you will have a 4 year revocation of your driver’s license with no privilege. You may petition the Division of Motor Vehicles for a conditional restoration
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A third DWI within 10 years creates a permanent revocation of your driver’s license, which may only be restored under certain conditions
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A fourth DWI with 10 years is Felony Habitual DWI. It requires a prison sentence, and a permanent revocation of your driver’s license. At this time, a person convicted of Habitual DWI is never eligible for a restoration of their driving privileges.
When am I under arrest?
You are under arrest when law enforcement officers take you into custody or deprive you of your freedom of movement to question you about a criminal offense.
What is the difference between a misdemeanor and a felony?
The difference between a misdemeanor and a felony is the severity of the crime and the penalty imposed. A misdemeanor is generally a crime where the maximum penalty is one year or less in jail and fines of up to $2,500. Conviction of a felony in state court can result in jail or prison time for more than one year, up to $25,000 in fines, and can also result in other serious legal repercussions.
What is the difference between and state and federal court?
Federal courts are established by the United States government to decide disputes involving the United States constitution and laws passed by Congress. Federal courts have a more limited jurisdiction than state courts and generally decide cases in which the United States is a party, cases involving a violation of federal laws or the constitution, cases between citizens of different states, and cases involving bankruptcy, patent law, and maritime law.
State courts are established by state, county, or city government and handle a larger number and broader variety of cases than the federal courts. While they are required to enforce the federal laws and constitution, they are mostly responsible for enforcing the state laws and the North Carolina constitution.Do I have to hire a lawyer for my DWI??
North Carolina law allows you to represent yourself in DWI proceedings. However, because mandatory minimum sentences for even the first offense can be severe, it is a good idea to consult an experienced attorney who knows the law and can advise you on the facts of your case.
Will I lose my driver’s license?
There is always the possibility of having your license suspended or, in some cases, revoked. Hiring an experienced DWI lawyer can substantially reduce the risks of losing your license to drive. There are many defenses to these charges, and it may be possible to maintain your driving privileges.
I was injured through no fault of my own. Can I file a personal injury action?
If you or a loved one are injured by another’s negligence, carelessness, or wrongful conduct, you maybe able to seek compensation from the negligent party and his or her insurers.
Do I need to hire an attorney?
Representation by an experienced personal injury lawyer can help level the playing field with big companies and their big insurers. Remember, they have well paid attorneys looking out for their interests.
How much does it cost to get a divorce?
The cost of a divorce is determined by the complexity of each individual case. The more issues in dispute and the more complex the case, the higher the cost. At DeMent Askew, LLP, we strive to resolve your divorce in the most efficient and cost effective manner possible.
How much child support will I have to pay, if any? How is this determined?
Child support is determined based on a formula set out by statute. This formula uses factors including the number of minor children, income of both mother and father, cost of health insurance for the children, cost of daycare, etc. The law assumes the residential parent is already contributing to the child’s needs and directs the other parent to pay a percentage of his/her income to the custodial parent.
What happens if one parent’s financial situation changes?
The court can modify the amount of child support at any time if one parent experiences a substantial change in circumstances. The court determines if a change of circumstances has occurred and the appropriate new amount of support.
How often do I need to update my will?
Your will should be reviewed by a licensed attorney and updated any time that there has been a significant change in your personal life or financial situation. A significant change may be the death of a beneficiary, marriage, divorce, or a move to a different state. You should have your attorney review your will at least every five years to ensure that it is consistent with current laws.
Call DeMent Askew, LLP to discuss your specific legal problem with an experienced North Carolina trial lawyer.
