Can I Get a DWI for Blowing Less Than a 0.08?

Many people believe that the only way to get convicted of a DWI is by driving with a blood alcohol concentration (BAC) of .08 or more. However this is not the case in North Carolina. A person may be charged with DWI if they operate a motor vehicle on a public street or highway while under the influence of an impairing substance or with a blood alcohol concentration of 0.08 or higher at any relevant time after driving.

Appreciable Impairment

If your BAC is less than 0.08 the prosecutor may attempt to convict you of a DWI by proving appreciable impairment. While it is true that a blood alcohol concentration of a 0.08 is the magic number for a DWI conviction, it is not mandatory. In fact, a person can be convicted of a DWI with no blood alcohol concentration at all. In order for this to happen the prosecutor must be able to show that your physical and mental faculties were appreciably impaired by alcohol or another impairing substances such as methamphetamine (meth), opioids, or marijuana. Appreciable impairment is argued based on observations made by the arresting officer. Some of these observations include:

• how the person was driving, for example: weaving, excessive speed, driving slowly, driving left of center etc,
• how the person performed on standardized field sobriety tests such as walk and turn test, one-leg stand test, and horizontal gaze nystagmus (HGN),
• other observations made during the stop for example: odor of alcohol, blood shot eyes, difficulty exiting the vehicle, slurred speech, and fumbling with driver's license or registration.

Appreciable impairment is also the theory prosecutors use for DWI refusals which is when a person refuses to blow into the breathalyzer.

Fortunately, appreciable impairment is very difficult to prove. The prosecutor must prove that the appreciable impairment is the result of an impairing substance. For example, if a person performs poorly on the one-leg stand test it does not necessarily mean that the person is impaired. Perhaps the person suffers from vertigo, which is a condition that is notorious for causing people to lose their balance. Additionally a person with slurred speech may in fact suffer from Parkinson's disease. Additionally Parkinson's disease inhibits all of the motor skills of everyone who is diagnosed with Parkinson's. One of the most common reasons a person may perform poorly during field sobriety testing occurs because the person is tested immediately after a car accident. Obviously, a person who is injured or has just been involved in a car accident is likely going to be too traumatized to adequately perform during field testing. A charge of driving while impaired where there is no blood alcohol concentration or the BAC is less than 0.08 requires special attention to achieve the best result possible.

Do I Need an Attorney if My BAC was Less Than 0.08?

Absolutely, it is a misconception that just because your BAC was less than the legal limit that your DWI charge will automatically be dismissed. That is not the case. DWI charges that are based on appreciable impairment require a more diligent defense than other types of DWI charges.