Client approaches a DWI roadblock. Smells of alcohol and performs ok on field tests though she does so some signs of NHTSA clues of impairment. She admits to drinking and blows positive for presence of alchol on the portable breath test. She is taken to the mobile breath testing bus at the checkpoint. She is alleged to have willfully refused to blow.
Client has significant oral trauma from a recent accident and has serious dental implants that cause slurred speech and pain when using or moving mouth. She cannot blow well enough to provide a sufficient breath sample. DMV rules that there was no willful refusal and rescinds the refusal revocation.
There was no blood test given.
Criminal court rules that state has failed to carry their burden of proof beyond a reasonable doubt because the field sobriety tests were not enough on their own to prove that my client had lost the normal control of her physical faculties. There was no evidence of mental impairment.
Not Guilty.
Author Bio
J. RUSSELL W. DeMENT III
RALEIGH CRIMINAL DEFENSE LAWYER
Russell W. “Rusty” DeMent III is a trial lawyer and managing partner at DeMent Askew Johnson & Marshall. A former Wake County Assistant District Attorney, he brings decades of courtroom experience to defending serious criminal charges in both state and federal courts, including DWI, violent crimes, and drug offenses.
Regularly recognized in Best Lawyers in America, Super Lawyers, and Business North Carolina’s Legal Elite, Rusty is a Fellow of the National College for DUI Defense and the Litigation Counsel of America. His legal insight and calm command in high-stakes cases make him a trusted advocate across North Carolina.
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