FERGUSON MOTION TO DISMISS DWI AND DUIIN RALEIGH, WAKE COUNTY
Driving While Impaired (DWI & DUI) is a unique charge because voluntary mental or physical impairment is an element of the crime. Since impairment is evaluated at the time the defendant was driving, evidence gathered near that time is relatively more important. Hours after the driving, evidence of sobriety is relatively less important because people tend to sober-up over time. A person's body metabolizes (processes and expels) impairing substances over time.
When preparing for trial, Attorney McCoppin always looks for witnesses who observed the defendant near the time the officer observed him drive. If these witnesses can testify that the defendant was sober, coordinated, and articulate, then their testimony can be used to challenge the officer's opinion that the defendant was impaired.
In State v. Ferguson, 90 N.C.App. 513, 369 S.E.2d 378 (1988), the North Carolina Court of Appeals reminded the lower courts that every defendant arrested for suspicion of driving while impaired has a constitutional and statutory right of access to a witness to observe the breathalyzer test at the police station. Defendant Ferguson testified that his arresting officer informed him of his right to call a witness to observe his breath test and he called his wife to appear as a witness. Defendant Ferguson's wife testified that she received her husband's call to appear as a witness and arrived at the jail to witness the breath test before the 30 minute waiting period had expired. She further testified that the jail refused to allow her to witness her husband's breath test. The court held that in any denial of a motorist's statutory right to have a witness present during the administration of a breathalyzer test, in cases where the State's sole evidence of a DWI offense was personal observations of law enforcement authorities, would constitute a flagrant violation of a motorist's right to obtain a witness and would require that charges be dismissed. Const. Art. 1, ¬ß 23; G.S. ¬ß¬ß 20-16.2, 20-138.1.
Asking The Court To Dismiss a DWI Based Upon A Ferguson Violation
In Wake County Court, a defendant charged with Driving While Impaired must file a written motion asking the court to dismiss the charge based upon a Ferguson violation. If the defendant does not file this written motion, then the court will not consider this objection. At McCoppin & Associates, we fill a Ferguson Motion to Dismiss in every DWI case where the defendant called a witness to appear, the witness arrived before the deadline, and the witness was denied access to observe the test.