In this second part of a three-part series, criminal defense attorney Patrick Mincey weighs in as a guest columnist and offers his insight into handling drinking and driving during the holidays. 

1. Do I have to submit to a breath test?

There are two types of breath tests in DWI investigations: a handheld device often used by officers during the roadside investigation; and a calibrated machine called the Intoxymeter. 
You do not have to submit and blow into the handheld device on the side of the road. If you willfully refuse the Intoxymeter, law enforcement can also take you to the hospital to compel a blood draw, which will be submitted for chemical analysis. 

If you willfully refuse to blow into the Intoxymeter after you have been arrested, your North Carolina driving privilege will be civilly revoked for one year, even if you are not guilty of DWI. 

2. What is the legal limit to be charged with a DWI?

The legal limit for alcohol in North Carolina is having a blood-alcohol content of .08 at any relevant time after driving. Of course, you may also be charged with DWI if you have other impairing substances in your system, such as opiates, which do not affect blood-alcohol content. 

3. If I am under 21 years old and test below the legal limit, can I be charged with DWI?

If your blood-alcohol content is over the legal limit of .08, or if you are suspected of DWI because of another impairing substance, you can still be charged and convicted of DWI. 

If you are under 21 and have alcohol in your system - even if you are below a .08 - you can still be charged and convicted of the separate offense of driving after consuming.

4. Can an officer search my clothing or pat me down after I have been pulled over?

Yes. An officer can conduct a limited search that allows the officer to pat you down even prior to an arrest.

5. What if the officer asks to search my vehicle during the stop?

You have no obligation to consent to a search of your vehicle. If an officer asks for permission to search, you do not have to give it.

You should discuss the particular aspects of your case with an attorney.  In the last part of this series, Patrick will offer guidance for what happens after you are charged with a DWI.

John D. Martin is a trial lawyer and the managing partner of the Cranfill Sumner & Hartzog LLP’s Wilmington, North Carolina office. Martin concentrates his practice in the medical malpractice and professional liability defense practice groups. He has tried numerous medical malpractice and personal injury cases throughout eastern North Carolina. Many of his cases involve brain injury, birth trauma, paraplegia and wrongful death. Additionally, Martin has experience with large construction litigation, premises liability and hospital/workplace security. To contact Martin, call (910) 777-6018 or email him at [email protected].