Procedures for Asheville DWI Stop and Arrest
A police officer must have reasonable suspicion that you are engaging in criminal activity to pull you over. Then, he or she must have reasonable suspicion that you are impaired by alcohol or other drugs to follow the procedures of a DWI investigation process. While every case is different, and not all procedures will be followed all the time, we can offer a general outline of those procedures.
The Stop
There must be a lawful reason for any traffic stop, which does not include general suspicion of impairment. There are different rules for DWI checkpoints, but in a typical traffic stop, you are protected from unreasonable search and seizure by the Fourth Amendment of the US Constitution. You are also protected from unwarranted traffic stops. This means that there has to be an objective and articulable reason for the initial stop. Some examples of lawful reasons to pull you over include speeding, defective equipment (like a burnt out taillight), or failing to use signals or headlights. A common one in Wake County is the failure to maintain lane control. It is never legal for an officer to pull you over based on a hunch that you may have been drinking. There may be a suspicion based on being close to a bar or based on the time of night, but these are not valid reasons for a traffic stop. Any traffic stops must be conducted with a lawful basis.
An officer will ask for your license and registration and can ask questions during this time to investigate any possibility of impairment. For example, the officer might ask if you’ve been drinking or where you are coming from. You do not have a right to lie to the officer, and if you do, this can be held against you later. You do have a right to politely decline to answer questions without an attorney present. You don’t have to say where you came from or whether or not you’ve been drinking. Answering questions like this can have serious incriminating consequences.
If you do answer these questions, then you may give the officer a reasonable suspicion of impairment. It is also possible for this suspicion to be based on the smell of your breath, slurred speech, bloodshot eyes, or an open container of alcohol that is visible. If this happens, then there are tests that can determine whether or not you are impaired.
Impairment and Intoxication Tests
Before Exiting the Vehicle
There are certain tests that can be conducted while you are still in the vehicle. These include reciting the alphabet (sometimes from one letter to another in the middle), counting backwards, and demonstrating finger dexterity (by touching each finger to the thumb of the same hand – sometimes both hands – while counting).
In most cases, you would be wise to exercise your right to refuse these tests.
SFSTs – Standardized Field Sobriety Tests
There are three Standardized Field Sobriety Tests that are used by North Carolina police officers, which were developed by The National Highway Transportation Safety Administration (NHTSA) in an effort to help police and prosecutors secure convictions. The three tests are:
Three SFSTs are used in North Carolina, and these were all developed by the NHTSA – National Highway Transportation Safety Administration. These include standing on one leg while counting (One-Leg Stand Test), walking heel to toe (Walk Straight Line Test), and following a pen or a light with your eyes (Horizontal Gaze Nystagmus Test).
- One-Leg Stand Test (stand on one leg and count one-one-thousand etc. until instructed to stop)
- Walk Straight Line Test (walk heel-to-toe, then repeat backwards, or some variation thereof)
- Horizontal Gaze Nystagmus Test (follow pen or light with eyes)
Again, you would be wise to exercise your right to refuse these tests.
Portable Breathalyzer and Alco-Sensor
Portable breathalyzer tests and Alco-Sensors are commonly used by officers in traffic stops. These tests are created to provide evidence that you are impaired so that there will be probably cause for arrest and subjection to the more elaborate test at the police station. You cannot refuse the more elaborate test once you’ve been arrested, but you can refuse the traffic stop tests, which could ultimately keep the officer from having the necessary probable cause for arrest.
Again, you would be wise to exercise your right to refuse these traffic stop tests.
EC/IR II Breathalyzer Machine Test
If you have been arrested in North Carolina under suspicion of DWI, the investigation will involve the EC/IR II Breathalyzer Machine, located at the police station. Under the implied consent law in North Carolina, you must submit to this test, or you will lose your license for a year. In the end, you will probably have to submit to a blood test, so it is typically not in your best interests to refuse this test.
Having said that, the officers are required to inform you of your rights before having you take this test. These rights include speaking to a lawyer and/or having a witness present for the testing. You will be allowed half an hour to get a witness of your choice to the police station. You should absolutely do this, because there is no disadvantage to exercising these rights.
Many people are misled by the friendliness of the arresting officers. Ultimately, the police officer’s goal is to ensure that you are convicted of a DWI, and you should never forget this fact. A polite police officer may be able to get more cooperation, but cooperation is not always in your best interests. Always decline to assist in your prosecution if you are able to do so without harming yourself. You should not refuse the EC/IR II test, but you should also not answer questions without an Asheville DWI attorney present and should exercise your right to have a witness present for the test.
Release and Determining Bond Information
When you have been arrested and processed for a DWI, you will have to go in front of a magistrate who will make a decision regarding your release and bond. In some cases, you can be released on the personal promise that you will show up for your court date. In other cases, you will have to post a bond. There also may be some conditions of your release that you must adhere to.