Most driving-while-impaired (DWI) arrests are made upon the basis of alleged probable cause. As you may know, the Fourth Amendment to the Constitution of the United States provides that persons cannot be "seized" or arrested "but upon probable cause."
Probable cause is the standard that officers use to make warrantless arrests and is also the standard by which magistrates issue warrants for arrest. The North Carolina Supreme Court has described probable cause this way: Whether a "man of reasonable caution who, in good faith and based upon practical consideration of everyday life, believed the suspect committed the crime for which he was later charged."
Whether they secure a warrant for arrest or make an arrest without a warrant, police officers must testify in front of magistrates and must describe why they believe they have or had probable cause to arrest someone. If an officer is applying to a magistrate for a warrant, and if the magistrate believes probable cause exists to arrest someone for a crime, the magistrate may issue a warrant for the person's arrest.
In other instances-and in most DWI cases-the order of this process is reversed, and an officer makes an arrest based on probable cause and then must have the arrest validated by a magistrate through a post-arrest showing of probable cause.
Most DWI cases involve warrantless arrests as a result of the common factual patterns that give rise to DWI charges. In most DWI cases, a driver is pulled over while operating a motor vehicle on the roadway, or is stopped at a DWI checkpoint, and either no magistrate is present or it is not feasible for an officer to obtain a warrant before arresting a person.
The actions and statements of a driver suspected of DWI are critical, because these form the officer's basis for pulling someone over and, if warranted, arresting the person. If the officer did not have sufficient suspicion to pull someone over or to reasonably believe that a person was operating a motor vehicle while impaired, then the evidence against a driver may be excluded and the DWI case dismissed.
What to say and do-and what not to say and do-when pulled over and suspected of DWI in North Carolina, are discussed in greater detail elsewhere on this site. The purpose of this publication is to apprise drivers in North Carolina of their rights after they have been arrested for DWI.
When police officers arrest people, they have certain duties to the arrested people imposed by state law, regardless of whether an arrest was made with or without a warrant. First, officers must "inform the person arrested of the charge against him or her or the cause for his arrest" and must "without unnecessary delay advise the person arrested of his or her right to communicate with counsel and friends and must allow him reasonable time and reasonable opportunity to do so."
It is important that drivers in North Carolina know and understand their rights. If a person is suspected of driving-while-impaired, it is critical that the person be advised of one's rights and equally critical-if feasible-that those rights be exercised. N.C. Gen. Stat. § 15A-501. If a person arrested for DWI is able to reach a family member or friend who can be present at or near the time the person was suspected of driving while impaired, the family member's or friend's testimony regarding the accused person's demeanor may be critical in defending against a DWI charge.
Furthermore, if an officer either purposefully or mistakenly fails to adhere to the legal requirements regarding post-arrest processing, a person accused of DWI may successfully petition a court to dismiss the charge, because one's defense was irretrievably prejudiced by the officer's failure to follow the law.
If you have been charged with DWI and feel that the arresting officer did not have probable cause to initiate the arrest, you should call Arnold & Smith, PLLC today at (704) 370-2828. Our experienced team of DWI defense attorneys are in courtrooms across the Charlotte Mecklenburg County region nearly every day fighting on behalf of persons accused of DWI. Let us help you through this stressful ordeal. Contact us now.