There are a variety of ways to defend against a DWI charge in North Carolina. Don’t let anyone tell you that the number you blow on the police machine at the station is the end of the issue. You can attack/challenge the stop of your vehicle, the arrest, the post arrest procedure, and even the steps that the magistrate took in deciding whether or not you should be released on a secured bond.
A Ferguson Motion references the 1988 holding in the case of North Carolina v. Walter Ferguson. Mr. Ferguson contended that he was denied his constitutional and statutory rights of access to a witness to observe the breathalyzer test. As a result, a ‘Ferguson Motion’ is the phrase used when attempting to get a DWI dismissed because your witnesses arrived timely to observe your testing procedures, but they were not allowed access to the intox room to observe the breath test. North Carolina recognizes that those charged with a crime have the right to prepare a defense for themselves. In implied consent offense situations, (DWI’s), there is an exigent need to allow defendants access to witnesses as quickly as possible.
When you are arrested for DWI, you will be taken to a local substation to participate in a breath test. The test is conducted by a certified chemical analyst on the police force – often times your arresting officer. You do not have to participate in any testing. However, refusing to blow into the officer’s machine at the station can result in a suspension of your driving privileges for one year. (Most people don’t realize that under the law in North Carolina, every time they drive their car they are impliedly consenting to give over a sample of their breath or blood of an officer feels he has probable cause to believe the driver is appreciably impaired.)
In order for you to understand these issues, the officer is tasked with a reading of your rights. These rights include having 30 minutes to contact a witness and have that witness come down to the station to observe your breath test.
If the officer does not read you these rights, or your witness arrives and is not allowed back to the intox room for observation purposes, you may have a defense to your case. It doesn’t matter what you end up blowing on their machine. North Carolina recognizes the right to have access to witnesses to prepare a defense and you need to be informed of these rights. If your witness arrives in the time frame allotted and is denied access to you, then you can argue a Ferguson Motion. If successful, the judge can order that the results of your breath test are suppressed or maybe even dismiss your case.
It doesn’t matter what the number on the machine is if you’ve been improperly denied your right to a witness. Don’t let an attorney tell you during a consultation that it looks like you’ll probably need to plead guilty if you blew above the legal limit. There are always alternatives to catering to the government’s desires, our talented Raleigh DWI lawyers can help.
