Question: "Can I be arrested and convicted of
DWI even if my BAC was .08 or less?"
The Attorney Replies: Yes, under North Carolina law (N.C.G.S. 20-138.1), a person may be convicted
of the criminal offense of Driving While Impaired even if their Blood
Alcohol Concentration (BAC) is equal or less than .08. The person may
be arrested and convicted under what is known as the 'appreciable
impairment' theory or prong. Under the 'appreciable impairment'
theory, a person may be arrested and convicted for the offense of Driving
While Impaired when the person's mental and physical faculties are
appreciably impaired at the time of driving. The appreciable impairment
theory is also used in conjunction with the drug prong of N.C.G.S. 20-138.1
to prove impairment when someone is driving after "having any amount
of a Schedule I substance in his or her system."
When prosecutors (Assistant District Attorneys) are attempting to prove
a Driving While Impaired case, they "the State" has the burden
to prove beyond a reasonable doubt all the elements of Driving While Impaired
have been satisfied. The State must prove the following elements for Driving
While Impaired in North Carolina:
- A vehicle was being driven; and
- The vehicle being driven was on a street, highway, or public vehicular area; and
The defendant had any amount of a Schedule I substance in his system, or
had a BAC of .08 or greater at a relevant time after driving to show that
the alcohol had been consumed during or prior to driving, or the defendant
consumed a sufficient quantity of an impairing substance such that the
person's bodily or mental faculties were
appreciably impaired at the time of driving.
An initial side regarding 'vehicles' under the amended 2006 statute,
N.C.G.S. 20-138.1(e), the North Carolina General Assembly specifically
exempted horses from classifying as 'vehicles' under the statute.
Returning to the 'appreciable impairment' theory, it must be noted
that appreciably impaired is just that, visibly or demonstrably impaired,
not grossly impairment, but also not just simply impaired. In
State v. Harrington, 78 N.C. App. 39, 336 S.E.2d 852 (1985), the North Carolina Court of Appeals
defined 'appreciable impairment' in the Driving While Impaired
context as not rising to the level of gross impairment where one is falling
down drunk, but the smell of alcohol or consumption of alcohol alone is
not indicative of appreciable impairment. Appreciable impairment is that
level of impairment which is noticeable and measurable.
When a person is charged with Driving While Impaired, the experienced trial
team at Dummit Fradin can greatly assist them in making sure they are
informed of the strengths and weaknesses of their case, and the Dummit
Fradin team diligently strives to leave no stone unturned when litigating
Driving While Impaired cases. Specifically, in regards to Driving While
Impaired cases predicated upon 'appreciable impairment' the seasoned
trial team at Dummit Fradin endeavors to vindicate our clients and their
rights by arguing against the appreciable impairment theory.
The Dummit Fradin Driving While Impaired attorney group challenges the
appreciable impairment theory by utilizing the National Highway Transportation
Safety Administration (commonly referred to as NHTSA) guidelines associated
with impairment. Specifically, in the 'Vehicle-in-motion' phase,
there are multiple clues of impairment that law enforcement officers are
trained to recognize such as weaving, straddling, drifting, swerving,
almost striking something, turning with wide radius, stopping problems,
accelerating for no reason, slow speed, and so forth. Additionally, during
the 'stop-phase', there are several clues of impairment including:
attempt to flee, no response to light/siren, abrupt swerve, sudden stop,
and striking curb or object. Moreover, and perhaps most importantly, during
the 'personal contact phase' there are a battery of clues associated
with impairment such as bloodshot eyes, soiled clothing, fumbling fingers,
alcohol containers, drugs and paraphernalia, slurred speech, admission
to drinking and so forth. Lastly, NHTSA has multiple 'post-stop'
clues such as difficulty with motor vehicle controls, difficulty exiting
the vehicle, fumbling driver's license or registration, etc. that
law enforcement officers are trained to look for when assessing an individual's
level of impairment.
The DWI attorney practice team at Dummit Fradin do not accept these clues
as a given in any case. In contrast, Dummit Fradin attorneys diligently
prepare and challenge appreciable impairment cases, especially in the
absence of evidence of the aforementioned clues.
In conclusion, yes. A person can be arrested and convicted for Driving
While Impaired with a BAC equal to or less than .08 under the 'appreciable
impairment' theory or prong. However, the Driving While Impaired practice
team at Dummit Fradin is trained and equipped to litigate Driving While
Impaired cases founded on appreciable impairment. Contact Dummit Fradin
today to learn more.