Appreciable Impairment for DWI’s

The majority of Americans are aware that it is illegal to operate a motor vehicle while under the influence of alcohol. However, despite this widespread awareness, there is a common misconception pertaining to the legal standard for Driving While Intoxicated (DWI) or Driving Under the Influence (DUI). Many believe in order to be charged with a DWI or DUI, the driver must be drunk or have a blood alcohol level of 0.08 or higher. Despite this common misconception, in North Carolina drivers can be charged with a DWI or DUI even if their blood alcohol concentration (BAC) is below 0.08, under what has been classified as the theory of appreciable impairment.

Pursuant to N.C.G.S. 20-138.1, aside from a BAC of 0.08, a driver can be charged with a DWI or DUI upon a showing that the consumption of an impairing substance caused the driver to lose his mental and/or physical faculties to such a degree that there was appreciable impairment to his faculties. In other words, in order to charge a driver with a DWI or DUI, the State need only prove that the driver had a BAC of 0.08, or that the driver was appreciably impaired.

The standard for proving appreciable impairment is extremely fact intensive and each case will depend on the evidence admitted. The prosecutor is tasked with proving beyond a reasonable doubt that the driver was appreciably impaired while operating a motor vehicle. Evidence commonly presented to meet this burden includes:

• Field sobriety tests: the walk and turn test, the horizontal gaze nystagmus (HGN) test or pen test, one leg stands, etc.
• Testimony of witnesses and/or arresting officer(s), concerning actions made by the driver exhibiting impairment, such as slurred speech, difficulty exiting the vehicle, or red glassy eyes.
• Evidence of open containers or drugs in the vehicle.
• Reckless driving, such as weaving, swerving, hitting a curb, causing an accident, or the inability to stop the vehicle in a safe and proper location upon being pulled over by law enforcement.

The State can use a range of evidence in proving to a court that a driver was operating a motor vehicle while appreciably impaired.

Appreciable impairment is an extremely fact driven determination. This is because impairing substances affect each individual person differently. For example, drinking a glass of wine like affects a 21-year-old female who weighs 120 pounds differently than a 50-year-old male who weighs 210 pounds. The biological and physical factors that come into play when determining the effects of introducing an impairing substance to one’s body are highly personal. Whether it be one beer or ten, any amount of impairing substance that causes a person to lose the normal control of their bodily and/or mental faculties to such an extent that there is an appreciable impairment of either of their faculties can be used as grounds for charging a person with a DUI or DWI.

It is important that drivers are aware that in the event they are pulled over by law enforcement under a suspicion of driving while impaired or under the influence, they are not required to perform any field sobriety tests, such as those mentioned above, if requested to do so by an officer. In addition, a driver is within his rights to refuse a roadside breath test. In the event that a driver refuses to undergo any type of chemical analysis, an officer may charge them with an implied-consent offense under N.C.G.S. 20-16.2. Under the implied-consent law, a driver may refuse any test, but his driver’s license will be revoked for one year and could potentially be revoked for a longer period of time. In addition, an officer can compel a driver who refuses a test to be tested under other laws. It is important to note that while an officer can compel a driver to be tested, he must follow strict procedures.

If you have been charged with DUI or DWI under an appreciable impairment theory, it is important that you contact an attorney as soon as possible. At Arnold & Smith, PLLC, our attorneys have extensive experience in handline DUI and DWI cases. Our attorneys have a track record of success in representing clients facing DUI or DWI charges pursuant to the appreciable impairment theory. Schedule an initial consultation with one of our experienced defense attorneys today to discuss your legal options. Call our office at 704.370.2828 or fill out our contact form online. Now taking cases throughout North Carolina with offices in Charlotte, Lake Norman, and Union County.