Can I Be Charged With a DWI for Blowing Lower Than a .08?

Many people believe that they can only be convicted of a DWI if they are caught driving with a blood alcohol concentration (BAC) of .08% or higher. However, in North Carolina, a driver can be charged with a DWI even if they have a blood alcohol concentration under the legal limit.

If you have been charged with a DWI, it is important that you understand North Carolina's DWI laws so you can better navigate the criminal justice system. As with any other criminal charge, the sooner you hire an experienced attorney, the more time your attorney will have to prepare your legal defense.

If your BAC is less than .08%, you may assume you cannot be convicted of a DWI. That is not the case, and many prosecutors will attempt to prove a DWI by showing that defendants had an “appreciable impairment” when operating a motor vehicle on a public street or highway. Prosecutors are not required to prove that a defendant has a blood alcohol concentration at all.

However, it is more challenging for prosecutors to secure a conviction for DWI without a blood alcohol test. They can try to prove that the driver was impaired, specifically that the driver's mental and physical faculties were appreciably impaired by alcohol or another impairing substance such as opioids, marijuana, or methamphetamine. Police officers can determine whether a driver has appreciable impairment based on their observations. Some of these observations include the following:

• How a person was driving. For example, If a driver is using excessive speed, driving slowly, swerving in and out of the lane, driving left of center, or weaving in between cars, this could indicate that the driver is impaired by alcohol or drugs
• How a person performs on a standardized field sobriety test, such as the one-leg stand test, walk and turn test, and horizontal gaze nystagmus (HGN)
• Police officers can use other observations they make during the stop, such as the odor of alcohol or marijuana, the driver's bloodshot eyes, slurred speech, difficulty exiting the vehicle, and inability to smoothly retrieve their driver's license or registration

Additionally, when a driver refuses to blow into the breathalyzer test, prosecutors must rely on the legal theory of appreciable impairment to convict the driver.

Appreciable impairment is challenging to prove. Prosecutors must prove that the appreciable impairment is the result of an appearing substance, such as alcohol, marijuana, controlled substances, or any other substance that can impair a person's ability to think, drive, and move safely. It is hard for police officers and prosecutors to prove that a driver is appreciably intoxicated compared to because the standard is relatively subjective.

What may seem like a clear sign of impairment to one person could be caused by a factor other than alcohol or drug impairment? For example, a driver could be fatigued or on medication that makes it look like they are intoxicated. A driver may have a medical condition that causes shakiness. Suppose a driver performs poorly on a field sobriety test, such as being unable to walk in a straight line.

That does not necessarily mean that the driver is impaired by alcohol or another substance. They may suffer from vertigo, which causes people to lose their balance. The driver may have recently had hip replacement surgery and have difficulty balancing and walking in a straight line.

A person with slurred speech may have Parkinson's disease or another medical condition. A person who is injured in a car accident or has been traumatized by the shock of the accident may not be able to perform various tests immediately after the accident. The police officer may conclude that the driver is intoxicated when, in fact, they have signs of shock or injury.

If you have been charged with a DWI based on an officer's conclusion that you had a substantial impairment, you will benefit from speaking to a skilled criminal defense attorney. The Charlotte-based DWI defense attorneys at Arnold & Smith, PLLC, have extensive experience representing clients charged with DWIs. Do not hesitate to contact Arnold & Smith, PLLC, to schedule a complimentary case evaluation and learn more about how we can fight for you and your rights.