Exceeding a Safe Speed & Driving While Impaired, Not Guilty

State Failed to Prove Elements of the Crime

On September 30, 2012 our client was charged with exceeding a safe speed and driving while impaired. The allegations were that she called the police to report an accident she was in where the car flipped on its side. When the officer arrived on the scene, one of the neighbors had come out and the client was outside the vehicle.

The officer had her do a horizontal gaze nystagmus (HGN), a walk and turn test, and a one leg stand. He then performed an Alcosensor. But at trial, the officer admitted that he didn’t follow the proper health regulations, and the “positive” results were not allowed into evidence. After performing this test he arrested her for driving while impaired. On the scene, she advised that she was driving the car and reported the wreck as she was required to do under N.C.G.S. 20-166. While she was at the dentention center downtown she exercised her 5th amendment rights to remain silent.

At trial, the State failed to present evidence with regard to what time the accident occurred and failed to prove that her impairment of a .09 was at a relevant time after driving. One of the fundamental elements of any per se DWI is to prove that the chemical test was performed at a “relevant time.” While the State may have clear evidence of when the test occurred (it is printed on the breath slip), if the State fails to prove when the driving occurred, they have not proven the test was performed “at a relevant time after driving.”

Thus, at the close of the case the court found her not guilty based upon the State’s failure to meet one of the elements of the crime. In this case, we had planned on contesting a different issue during trial, but when the State missed an element, we won on an issue we could not have predicted. As with many cases, if the State had all of its witnesses present and had put its case forward correctly, the State may have been able to prove her guilty. However, as trials move quickly, it is often the case that the State fails to meet an element when the matter actually goes to trial. We are very proud of our firm for litigating a case that many firms would have advised her to plead guilty.