“Ferguson Motion” to Suppress Evidence & Dismiss the DWI
When an officer asks a driver to submit to an
alcohol breath test at the police station, the officer must inform the driver of his constitutional and statutory rights to have a witness observe the test.
State v. Ferguson, 90 N.C.App. 513, 369 S.E.2d 378 (1988) states that the purpose of this rule is to give an independent witness the opportunity or observe the driver’s sobriety and present that evidence at trial. I will file a “
Ferguson Motion” and demand that the court dismiss the DWI charge if the officer
- failed to notify the driver of his right to a witness;
- failed to let the driver use a telephone;
- failed to wait a full 30-minutes before requesting the test; or
- failed to check the DWI waiting room for the presence of a witness.
Breath test results can be the prosecutor’s strongest evidence of impairment and suppressing them greatly increases the likelihood of obtaining a not guilty verdict. If the court also concludes that the officer violated the driver’s constitutional right to have an independent witness observe his sobriety, the court will dismiss the DWI.
