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Category: Criminal Law
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Experience:  30 years legal experience
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I received a 2nd DUI in NC in 2 1/2 years of my 1st DUI. I

Resolved Question:

I received a 2nd DUI in NC in 2 1/2 years of my 1st DUI. I SLIGHTLY grazed a pole (there isn't even a dent in my car as I was slowly backing out of a parking spot) but the police called that Hit and Run. My attorney is a good attorney, and he will fight for me. I had gastric bypass in March and I only had 2 glasses of wine for the first time in 6 months. However, when I pulled into the parking spot, I got sick. I couldn't breathe, so I took my albuterol inhaler, and then just decided to leave. I was watching the people behind me so as not to hit them, and grazed the pole. The cop stopped me down the block & asked me to do a field test. I told him I had bad knees from the excess weight and ACL surgery, so I would have trouble, but he did it anyway. I told him I was sick and he arrested me anyway. My question: If I am found guilty, will I lose my license completely for 2 years since it was only 2 1/2 years ago since my last one? Do I have any chance at getting a limited privilege?
Submitted: 7 years ago.
Category: Criminal Law
Expert:  LawTalk replied 7 years ago.
Good morning,

I'm sorry to hear of your dilemma.

What was your tested alcohol level?
Customer: replied 7 years ago.

Initially, he told me it was .12, but he didn't give me the strip. But he didn't give me the strip to go along with it. In discovery, he gave the strip to my attorney, and it stated .15.


Again; however, I did get sick right before I took the test which my attorney said could greatly affect the outcome of the BAC.

Expert:  LawTalk replied 7 years ago.
Good morning,

While I strive to give you an accurate and applicable answer to your question, and if I can possibly provide a legal avenue for you to have a successful legal outcome I will, I don't have the ability to provide you with favorable law if it doesn't exist.

I will presume that if you underwent gastric bypass this year that you have still not reached your weight goal yet.

By-pass surgery or not, if your weight is 150 or more, there should be no way that your blood alcohol level was above the legal limit after 2 glasses of wine---unless you drink your wine from a very large wine glass. Illness can affect the test---of that there is no doubt. That is something that your attorney will want to argue vigorously.

However, if your blood alcohol level was above the legal limit, or if your driving, appearance and field sobriety test results constituted "appreciable impairment" under the law, regardless or the picky reason you were pulled over, a second conviction for DUI in SC within 3 years of the first bring with it some very stiff penalties.

In the state of North Carolina, if you have a second DUI conviction within three years of your first, you will face harsher penalties. For a second offense within 3 years you are facing:

  • A misdemeanor conviction.
  • Driver's license revocation for a mandatory 4 years.
  • Up to a $2000 fine and/or up to 24 months in jail.
If you are convicted, there is a reasonable chance that you will be allowed a limited privilege if you can show a need based on one of the following criteria:

1. Court ordered treatment
2. Community service
3. Emergency medical care
4. maintenance of your household.

I wish you well.

Thank you very much for having allowed me to assist you. It would be greatly appreciated if you would click the green Accept icon so that I can receive credit for having assisted you.


Best regards,




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