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DWI/DUI – Refusing a Breathalyzer Test

Wednesday, January 15th, 2020

DWI/DUI refers to Driving While Impaired (DWI), or Driving Under the Influence (DUI).  Commonly, even more terms are used to describe what North Carolina General Statute (N.C.G.S.) defines in §20-138.1 as impaired driving, for example driving while intoxicated, drunk driving, or drugged driving.  Pursuant to N.C.G.S. § 20-138.1. A person commits the offense of impaired driving if he drives any vehicle upon any highway, any street, or any public vehicular area within this State:

(1) While under the influence of an impairing substance; or

(2) After having consumed sufficient alcohol that he has, at any relevant time after the driving, an alcohol concentration of 0.08 or more. The results of a chemical analysis shall be deemed sufficient evidence to prove a person’s alcohol concentration; or

(3) With any amount of a Schedule I controlled substance, as listed in G.S. 90-89, or its metabolites in his blood or urine.

Often, law enforcement agencies set up road blocks in order to detect drunk or drugged drivers, in other cases, law enforcement officers pull drivers over who exhibit signs of impaired driving.  In either scenario, upon suspicion of impaired driving, a law enforcement officer will request for the driver to submit to a breath test, and/or administer a field sobriety test to determine if the level of impairment is outside the legal limits. 

Pursuant to N.C.G.S. §20-16.2. Any person who drives a vehicle on a highway or public vehicular area thereby gives consent to a chemical analysis if charged with an implied-consent offense. Any law enforcement officer who has reasonable grounds to believe that the person charged has committed the implied-consent offense may obtain a chemical analysis of the person.  Before any type of chemical analysis is administered the person charged shall be taken before a chemical analyst authorized to administer a test of a person’s breath or a law enforcement officer who is authorized to administer chemical analysis of the breath, who shall inform the person orally and also give the person a notice in writing that:

(1) You have been charged with an implied-consent offense. Under the implied-consent law, you can refuse any test, but your driver license will be revoked for one year and could be revoked for a longer period of time under certain circumstances, and an officer can compel you to be tested under other laws.

(2) Repealed by Session Laws 2006-253, s. 15, effective December 1, 2006, and applicable to offenses committed on or after that date.

(3) The test results, or the fact of your refusal, will be admissible in evidence at trial.

(4) Your driving privilege will be revoked immediately for at least 30 days if you refuse any test or 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.

(5) After you are released, you may seek your own test in addition to this test.

(6) You may call an attorney for advice and select a witness to view the testing procedures remaining after the witness arrives, but the testing may not be delayed for these purposes longer than 30 minutes from the time you are notified of these rights. You must take the test at the end of 30 minutes even if you have not contacted an attorney or your witness has not arrived. NC Gen. Stat. 20-16.2 Implied consent to chemical analysis; mandatory revocation of license in event of refusal; right of driver to request analysis.

Before the revocation of one’s driving privilege goes into effect based on their refusal to submit to a chemical analysis, North Carolina Division of Motor Vehicles (NCDMV) will send a letter to let one know for when the suspension of their driver license is scheduled, and will advise of the right to request a preliminary hearing.  If NCDMV receives the request for a preliminary hearing along with payment for the required hearing fee in the amount of $450.00, prior to the suspension going into effect, one may retain their driver license pending the outcome of the preliminary hearing.

Upon six months from the effective date of the suspension of one’s driver license due to their refusal, the court may be petitioned for a limited driving privilege for the remainder of the one year refusal suspension. 

Fortunately, Collins Law Firm is here to help those facing impaired driving charges in New Hanover, Pender, and Brunswick County.  Attorney David Collins has over 25 years of experience in the legal field, and has successfully represented many people charged with DWI/DUI.   If you or someone you know has DWI/DUI, then call us at (910) 793-9000 for a confidential consultation.

By Jana H. Collins, Paralegal

Buckle Down & Buckle Up

Tuesday, May 24th, 2016

Battleship_and_flag_on_river-webMemorial Day is right around the corner, and for those of us near the coast, this means considerably higher traffic along our thoroughfares as vacationers flock to the beach for the holiday weekend. Ranking as one of the top ten most visited states for domestic travel, NC commonly experiences increased roadway congestion. What this weekend should also remind us of, however, is the extreme importance of automobile safety as our loved ones submit themselves to the mercy of their fellow drivers among our state’s highways. This sentiment is echoed by Governor Pat McCrory, who has officially declared May Seat Belt Safety Awareness Month. At 42% percent, almost half of passenger vehicle fatalities last year can be attributed to drivers or passengers not wearing seat belts.

To this end, the Governor’s Highways Safety Program features the continuance of the State’s “Click it or Ticket” campaign intended to increase seat belt usage by raising awareness of NC’s strict seat belt policies: charging up to $179 in fines per ticket and even up to $263 per passengers 15 and under not wearing their seat belt. The initiative also features the increased likelihood of police checkpoints on the roads intended to make sure drivers are buckling up.

On the other hand, for drivers leaving the coastal area, here are a few helpful pieces of traffic information courtesy of the North Carolina Department of Transportation to expedite your commute:

  • N.C. 42 will have a signed detour, road closure and bridge replacement east and west of Ahoskie Creek in Hertford County.
  • N.C. 94 will have a road closure and bridge construction on Elementary School Road at U.S. 64 in Tyrrell County.
  • U.S. 158 will have two-lane two-way traffic on the Pasquotank River Bridge in Pasquotank County.
  • I-85 will have lane closures in both the northbound and southbound lanes traffic between the Virginia line and the town of Henderson. The pattern affects traffic in Vance and Granville counties.
  • U.S. 23/74 will have a bridge replacement in Jackson County.
  • N.C. 294 will have portable traffic signals in Cherokee County.

As always, remember to start your commute early in the day to avoid peak traffic hours, obey the posted speed limits, never drive when feeling tired or drowsy, and needless to say, buckle up!

Have a great Holiday weekend, and stay out of trouble; but if you do find yourself in need of representation or know someone else who does, be sure to give us a call at Collins Law Firm (910) 793-9000.

By Clifford Howie, Legal Assistant


The Ferguson Effect

Wednesday, December 30th, 2015

AAEAAQAAAAAAAAYHAAAAJGMyZmRkY2FlLTExYzEtNGRmNS1hNjFjLWQzODE5OTE2MTVjMQThe resentment towards police departments by community activists who have portrayed law enforcement as racist who routinely shoot black Americans, for essentially no reason, has caused a substantial increase in shootings and murders all across the United States in recent years. This idea has become what is known as “The Ferguson Effect.”

So often we see on the news protests and riots against police officers who are accused of shooting or killing an individual out of racism, not protecting their life. What people may often overlook is the huge risk that comes with being a law enforcement officer, and as if their job isn’t dangerous enough, now anytime a cop uses his/her gun they have to immediately think about being indicted, losing their job, family, and more.

This controversial hypothesis that crime is on the rise is ongoing and whether you agree or disagree – in all areas – has some sort of effect in your community. Here in New Hanover and surrounding counties (like Brunswick and Pender) we have seen a spike in crime in recent years, however, court dockets are decreasing by about half. One possible explanation could be that law enforcement officers are backing off on writing traffic and criminal tickets because of the extreme scrutiny they face as a whole. Every action has a consequence. It would be ideal to bring the community and local police departments together to work on ways that can reduce crime in our area. Cops aren’t always the “bad guys.”

New Hanover County Police Department offers their vision statement on the home page of their website “To serve with professionalism and hold ourselves responsible and accountable to the citizens of New Hanover County,” and here at Collins Law Firm, we support what the greater goal of all police departments is: to serve and protect. It is unfortunate that the atmosphere in which law enforcement officers are to perform their duties is now burdened with danger and consequence.

Attorney David Collins has over 20 years of experience in the legal field, and has represented many people charged with various crimes. If you or someone you know has been charged with a crime, please call to schedule a consultation today: (910) 793-900. We’re here to help!


By Amber Younce, Legal Assistant

Rocky’s Law

Thursday, October 8th, 2015

Neuhaus-Rockys-LawOrange County, NY Legislator Mike Anagnostakis (R-Montgomery, Newburgh) was elated when law he had proposed─Rocky’s Law─was voted unanimously and thereby approved by Orange County, NY Legislators. Pursuant to Rocky’s Law, Orange County Residents convicted of abusing animals are required to register within five days of being convicted or released from jail or prison. Failure to register may result in a fine of up to $2,000 and a year in jail. First time offenders will be prohibited from owning a companion animal for 15 years, and repeat offenders will be barred from owning a companion animal for the rest of their life.

Rocky’s Law was named after a 3-year old Staffordshire Terrier named Rocky who had to be euthanized after he sustained life-threatening injuries from being left in freezing temperatures for five weeks while his owner went on a vacation.

Orange County Executive Steven M. Neuhaus signed Rocky’s Law on June 6, 2015 at the Warwick Valley Humane Society alongside a homeless American Staffordshire lady named Mindy who placed her paw print on the bill.

Legislator Mike Anagnostakis had proposed the law so that Rocky’s death “will not have been in vain. It will at least stop those who have committed the most heinous crimes from ever getting their hands on our loved ones again. What a tribute to Rocky it would be if this law becomes enacted across the U.S.”

Paws up, Orange County, NY Legislators!

By Jana H. Collins

Most Recent Execution by Capital Punishment

Friday, October 2nd, 2015

death-penaltyKelly Gissendaner was executed on Wednesday at 7pm, with respect to her sentence of the death penalty for engineering the murder of her husband in 1997, despite both her children and even Pope Carlo Francis’ wishes. After visiting the United States, the pope sincerely requested in writing that the state of Georgia not follow through with the execution of Ms. Gissendander as stated below:

“While not wishing to minimize the gravity of the crime for which Ms. Gissendander has been convicted, and while sympathizing with the victims, I nonetheless implore you, in consideration of the reasons that have been expressed to your board, to commute the sentence to one that would better express both justice and mercy,”

None of the last minute pleas were enough, and as a result, Ms. Gissendaner was the first person in 70 years to be executed by the death penalty in Georgia.

While talk is hot about the death penalty, some may be wondering, what is North Carolina’s history with the death penalty? And what are the laws associated with it?

The death penalty has been part of North Carolina Law since the state was a British colony, and at that time available as punishment for an array of crimes. Until the later part of the 20th century, the death penalty was permissible for crimes such as arson, burglary, rape, and murder. Since then, however, NC has limited the crimes eligible for capital punishment to cases only where another person is killed.

There has been a drop in the number of capital trials, death penalties, and executions in North Carolina in recent years. The last person to be executed on death row in North Carolina was Samuel Flippen, who was put to death on August 18, 2006 for the murder of his two-year-old stepdaughter.

As of March 30, 2012, according to the Division of Adult Correction, North Carolina held 157 inmates on death row. 153 of the 157 inmates on death row are men. Both the men and women are housed in Raleigh’s Central Prisons. All of these inmates have been on death row at least since the 1990s. North Carolina’s method of execution remains by lethal injection.

The laws regarding North Carolina’s death row policies and procedures are constantly changing, as this is an extremely controversial topic in government. In 2001, according to N.C.G.S. § 15A-2004, the General Assembly modified the statute to give prosecutors the option to decline seeking the death penalty. Those exempt from capital punishment are those who “suffer from a severe mental disorder or disability that significantly impaired his or her capacity to appreciate the nature, consequences, or wrongfulness of his or her conduct.” The minimum age for execution is 17.

Just this week, State Representative Jon Hardister (R) of Greensboro said he thinks the death penalty should be abolished because he doesn’t “trust the government to do it right.” He suggests that alternatively, NC should sentence to life in prison without parole. What are your thoughts on NC laws regarding capital punishment?

By Amber Younce, Legal Assistant