A message from Sean:
Hey everyone,
My name is Sean Dillenbeck. This section of my website for you to have the opportunity to get to know me a little bit better.
A Native Charlottean
First thing you may be interested to know about me is that I am a native Charlottean. I grew up off of Rea Road in South Charlotte. If you have lived in Charlotte for any period of time, I think you will agree that nowadays it is something that is quiet rare. Not many of us that were raised in this community are still residing here. This community was instrumental in shaping me into the man I am today, and that is the reason why I came back. It certainly prepared me for college and law school at the University of Georgia. Therefore, I wanted to return home and give back to the people and the community that gave me so much, such as working with mentoring programs in the Charlotte-Mecklenburg School System.
My Practice:
I am a young ambitious attorney. It is my goal to have the best and absolute legal practice in Charlotte, with respect to DWI Defense and Consumer Bankruptcy. This is something that I am pursuing with an unbridled passion. My practice of law is a bit different than most of young attorneys that are striking it out on their own. Many young attorneys will take cases in a wide range of practice areas in order to make money. I am approaching this differently, with the goal of being the best attorney one can obtain. I exclusively focus with on DWI Defense and Consumer Bankruptcy. By doing so, I can work full time on learning those laws and their subtleties through and through, thus putting myself ahead of the game with respect to both areas of law.
The Most Accessibility Attorney in Charlotte
I am much more accessible than the average attorney is. The reason for that is twofold:
-A judge in Georgia once said, The best trial attorneys were those who really like their clients. Based on my court room experience, I have found this to be true. When you have a client that is likable, you tend to not see them as a client, but as a friend. Therefore, when you have got a friend that is in trouble, your natural reaction is to go the extra mile for them. Beyond that, if they are your friend, then they should have an easy means of contacting you. I provide that to my clients.
-For clients I could not see myself being friends with outside of the attorney-client relationship, I am still very aware of the fact that they have serious legal issues their ongoing lives and they are scared about how those legal issues will impact their future lives. Thus, beyond me being a zealous advocate for them in the court room, my clients need me to be a counselor to them and to give them whatever reassurance or guidance I can through this difficult process. I am very conscientious of that fact and I abide by it.
Rather than do what a lot of attorneys do, and put layers of insulation between you and myself forcing you talk to my secretary, my legal assistant, my paralegal before reaching me I give my clients my direct personal cell phone number (704-236-0184). It is the same number I use to talk to my family and close friends. That way, you will not have to worry about having to run through circles to get in contact with me. This provides a better means of accessibility than any other attorney in Charlotte is providing.
The Most Affordable Rates in Charlotte
In this current economic recession, I have noticed a good number of DWI defendants that are handling their own cases. Fortunately, we have good judges here in Charlotte that will not allow that, because a DWI charge is a very serious matter. Even if your prior criminal record is squeaky clean, your first DWI conviction depending on the facts could land you two years in jail and a $4,000 fine. This is something that you do not want to mess around with. When you are facing severe legal consequences, you need to give yourself the best opportunity of coming out of that case a winner. Hiring legal counsel is only going to do that for you. With that said, I believe that you should not have to go broke by taking that route.
If you have any further questions or concerns, please feel free to give me a call. My number is 704-231-1488.
First and foremost a person pulled over by the police on suspicion of DWI has the absolute right to remain silent. You do not have to answer polilce questions if you do not want to. However, if you smell of alcohol, have blood shot eyes or otherwise given the police a reasonable, articulable suspicion (i.e., probable cause) to believe you have committed a DWI, than they will probably arrest you.
Second, you do not have to submit to any of the field sobriety tests including the road side breath tests. However, your failure to submit to a breath test (including one at jail) could have adverse consequences for you (See Should I submit to a roadside breath test below).
Should I submit to a breath test at the Police Station?
This is a difficult question to answer. While refusing a breath test will make it more difficult for the state to prove that you were over the legal limit or otherwise under the influence, there are some adverse consequences to to refusing a breath test. First, the police can still demand that you take a blood test. Second, by refusing to take
a breath test it looks like you have something to hide or were worried that you couldn't pass a breath test (read above the legal limit). Third, the State of North Carolina will suspend your driver's license for a full year if you refuse a breath test (EVEN IF YOU ARE NOT CONVICTED OF DWI). Moreover, you will not be eligible for a limited driving privilege for the first six months of your suspension.
If it were me, I'd honestly submit to the breath test and then request an independent blood test upon reaching the station. My reason for this is two-fold. First, even if you have not been drinking, losing your driving privilege for a year will make your life substantially more complicated than it otherwise could be if you submitted to the breath test. Even if you have been drinking and now you would fail a breathylizer test and ultimately be convicted of DWI, there's a good chance that you will still be able to get a limited driving privilege immediately upon the revocation of your driver's license. (Note your BAC was 0.15 or higher that you would have to wait 45 days after your DWI conviction before being able to get a limited driving privilege).
Moreover, from an evidentary stand point failing a road side breath test may not necessarily be a kiss of death. Because the breathylizer attempts to measure blood alcohol concentration by measuring alochol concentration on your breath, the breathylizer does not directly measure your BAC. Moreover, scientific research has shown that the ratio used to translate breath alcohol concentration into blood alcohol concentration, the breathylizer will overestimate the BAC of approximately 20% of the people stopped for DWI. (For more information on the science of the breathylizer, please see Dillenbeck DWI Blog). Moreover, if you had only a small amount of alcohol prior to failing the breath test, you may very well pass the blood test and thus strengthen the evidence that you were not guilty of DWI. Because a blood test takes more time to procure, your body has more time to metabolize the alcohol and thus more time to reduce your blood alcohol concentration. Moreover, even if this limited example would not apply to your circumstances (due to high alcohol consumption) and you would still fail a blood test, as mentioned above there's a good chance your life would still be easier since you might be able to apply and get a limited driving privilege right away. Even if you must wait 45 days because your blood alcohol concentration was 0.15 or higher, it still is a shorter period of time than the 6 period have to wait by refusing the breath test.
The vast majority of DWI arrests are warrantless arrests. This is important because the law favors arrests coming through the issuance of a warrant. As such, law enforcement must meet a heightened evidentary burden in order to arrest someone without a warrant. More specifically, a warrantless arrest must be supported by probable cause in order to be lawful.
What is probable cause?
Probable cause has been defined a number of times by both the United States Supreme Court and the North Carolina Supreme Court. The United States Supreme Court defined probable cause as follows:
* At the time of the arrest the officer has within his knowledge reasonably trustworthy facts and circumstances sufficient to warrant a reasonably prudent person to believe that the suspect has committed or is committing a crime. Beck v. Ohio, 370 U.S. 89 (1984)
The North Carolina Supreme Court has defined Probable Cause as follows:
* Probable cause for an arrest has been defined to be a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing the accused to be guilty. State vs. Shore, 285 N.C. 328 (1974)
It should be noted that the evidence necessary to meet the probable cause standard is the same as the standard necessary to secure a conviction (beyond a reasonable doubt?). Rather, the probable cause standard is lower (i.e., requires less evidence) than the beyond the doubt standard.
How does the probable tests apply in the real world of police traffic stops?
Generally speaking, law enforcement officers must have multiple clues or evidence that a driver has committed a DWI before an arrest can be made. Thus, alco-sensor and other preliminary breath tests ALONE do not constitute probable cause to arrest a driver for DWI. However, preliminary breath tests inconjunction with other evidence (blood shot eyes, odor of alcohol on the breath, field sobriety test results) would constitute probable cause to arrest a suspect for DWI.
No, under North Carolina Law a DWI conviction cannot be expunged from your criminal record. However, if you were charged with DWI and the charges were eventually dismissed OR you were found not guilty of DWI OR not responsible then you can apply for expungement under NCGS 15A-146 (Expunction of records when charges are dismissed or there are findings of not guilty). For more information on North Carolina Expungement Laws please click the following Link: North Carolina Expungement Law.
The Breathylzer Machine Can Be Wrong!
As mentioned under the "Important Information about DWI" section, the breathalizer machines calculate your blood alcohol content based on your breath alcohol content. The breathylzer works on the presumption that there is a universal ratio (for all people) between the amount of alcohol disolved in the blood to the amount of alcohol exhaled in the breath at any given point in time. (Note: The blood/breath ratio utilized in all jurisdictions of the United States assumes that 2100 parts of breath contain the same equivalent as one part of blood. This blood/breath ratio is now as the Partition ratio).
This presumption is flat out wrong! Research has shown that the blood breath ratio varies from 1300:1 to 3100:1 or wider among individuals and within a given individual over time. Assuming a true (and US legal) blood-alcohol concentration of .07%, for example, a person with a partition ratio of 1500:1 would have a breath test reading of .10%over the legal limit.
What causes the differences in the partition ratio of people?
Well, body fat for one. The partition ratio erroneously assumes that all people of a given height and weight will absorb ethanol into their blood stream evenly. Fatty tissues do not absorb ethanol. As such, if there are two people of even height and weight, one being muscular and the other overweight, the overweight person will have a higher BAC because there is less non-fatty tissue in his body to absorb the alcohol in his blood stream. Thus, given that people of identical height and weight can vary in the amount of fatty tissue in their bodies, people of identical height and weight can have different BACs.
How many people will erroneously test positive on a breathylzer? About 1 in every 4!
Research indicates that breath tests vary at least 15% from actual blood alcohol concentration. At least 23% (that's about one out of every four) of all individuals tested will have a BAC reading higher than their actual BAC. Ther fore about 1 in every 4 people arrested for DWI are arrested for DWI are innocent drivers!
Other things which can impact breathylzer accuracy:
Breathing more decreases your BAC where as holding your breath increases it: Research shows that BAC can vary based on your breathing rate. More specifically, hyperventilation for 20 seconds has been shown to reduce Breathylzer readings by approximately 32%. Another study found that breathylzer readings decreased by 11 to 14% after subjects ran up one flight of stairs. This same study found that the breathylzer reading decreased by 22-25% after the subjects ran up two flights of stairs. In contrast, research has shown that holding one's breath for 30 seconds causes BAC results to increase by about 28%.
Mouth Alcohol:
Mouth Alcohol refers to alcohol that did not come from alveolar air (air exhaled deep from the lungs). Thus this is alcohol that was not absorbed through the stomach and intestines and was passed through the blood to the lungs. Mouth alcohol causes erroneous breathyzler readings because the breathylzer machine automatically applies the "partition ratio" and thus multiplies the reading. In Order to guard against mouth-alcohol contamination, breath test operators are trained to carefully observe a test subject for 15 to 20 minutes.
Sources of Mouth Alcohol:
Acid reflex can cause mouth alochol. Acid reflex diease occurs when the valve separating the the stomach from the throat becomes irritated. When someone with Acid Reflex diease consumes alcohol there is nothing to prevent alcohol from rising up and permeating the esophagus and the mouth.
Dental devices and dental diease can also create mouth alcohol. Dentures trap alcohol. Periodental disease can also create pockets in the gums which will contain the alcohol for longer periods.
Perhaps the most common source of mouth alcohol is burping or bleching. According to American Medical Association's Manual for Chemical Tests for Intoxication (1959), "True reactions with alcohol in expired breath from sources other than the alveolar air (eructation, regurgitation, vomiting) will, of course, vitiate the breath alcohol results." In order to combat erroneous readings created by mouth alcohol, police officers are suppose to keep a DWI suspect under observation for 15 to 20 minutes prior to administering a breath test. Moreover, modern breathylzers like the Intoxilyzer 5000 have a built in feature to account for burping. The feature is known slope paramter. It detects any decrease in alcohol concentration of .006 g per 210L of breath in 6/10th's of a second, a condition indicative of residual mouth alcohol, and will result in an "invalid sample" warning to the operator, notifying the operator of the presence of the residual mouth alcohol. PBT's, however, feature no such safeguard.
North Carolina law limits the circumstances under which a person can get an expungement. Under North Carolina Law, a person MAY BE able to get an expungement under the following circumstances:
1. Convictions :
* Certain misdemeanors convictions/Pleas by those under 21 OR 18:
o Persons who were convicted of non-traffic related misdemeanors while they were under the age of 18 so long as they had no prior criminal record (except for misdemeanor traffic violations) AND no subsequent convictions (except for traffic related misdemeanors), and no outstanding restitution or outstanding civil judgments representing restitution owed. Moreover, the person seeking expungement under this provision must wait until the later of two years from the date of conviction OR the completion of probation. (NCGS 15A-145);
o Persons convicted of misdemeanor possession of alcohol while under the age of 21 pursuant to NCGS 18B-302(b)(1) so long as they had no prior criminal record (except for misdemeanor traffic violations) AND no subsequent convictions (except for traffic related misdemeanors), Moreover, the person seeking expungement under this provision must wait until the later of two years from the date of conviction OR the completion of probation. (NCGS 15A-145)
* Certain Drug Offenses for those 21 and under:
o Misdemeanor convictions: If a person, while they were 21 years or younger AND with no prior convictions for possession of controlled substances OR paraphernalia., was convicted OR pled guilty to misdemeanor possession of a controlled substance under Schedules II through VI (defined under Article 5B of Chapter 90 of the North Carolina General Statutes) or paraphernalia (as outlawed by NCGS 90-113.21) and agreed to probation in lieu of a court judgment, and maintained good behavior during probation (i.e., no subsequent criminal convictions other than traffic violations) than the person may apply to have all official records of his arrest, trial, finding of guilty expunged (NCGS 90-96). (NOTE: There are specific items which must be included in the application for expungement under this provision).
o Felony convictions: If a person, while they were 21 years or younger AND with no prior convictions for possession of controlled substances OR paraphernalia., was convicted OR pled guilty to felony possession of less than one gram of cocaine (prohibited by NCGS 90-95(a)(3)) or paraphernalia (as outlawed by NCGS 90-113.21) and agreed to probation in lieu of a court judgment, and maintained good behavior during probation (i.e., no subsequent criminal convictions other than traffic violations) than the person may apply to have all official records of his arrest, trial, finding of guilty expunged (NCGS 90-96). (NOTE: There are specific items which must be included in the application for expungement under this provision)
2. Non-Convictions, Reversal of Convictions & Mistaken Identities
* Expungement of the Entire Criminal Record if you are not convicted: If you are found not guilty, not responsible, or otherwise have the charges dismissed against you, may be able to get all public (court) records of the investigation and prosecution expunged under North Carolina Law. (NCGS 15A-146 Expunction of records when charges are dismissed or there are findings of not guilty).
* Expungement of DNA evidence if your conviction is overturned on appeal OR if you are granted a pardon of forgiveness: If you were convicted of a felony or a violent crime against person and that conviction is subsequently overturned on appeal OR if you are granted a pardon of forgiveness than DNA evidence collected and recorded (including your profile and DNA sample maintained with the State DNA Database) may be destroyed via an expungement (NCGS 15A-148).
* Prosecution or Conviction due to identity theft: If an innocent person is charged with a crime (misdemeanor or felony) as a result of the wrongdoer using the innocent person's identification AND the charge against the innocent person is dismissed, a finding of not guilty is entered OR the conviction is set aside than the innocent person may apply to have all official court records of his apprehension, charge and trial expunged (NCGS 15A-147).
3. Expungement of records involving juveniles: COMING SOON!
