Appreciable Impairment

Question From an Avvo Reader: Is the Burden of proof really on the state to be convicted of a DWI?

Here are the facts of her or his case: “Blood draw was sent off for alcohol came back within 3 months with a reading of a 0.00 and has been sent off again for further testing. The results have not come back yet but is now taking longer than the first test. I understand the backlog but I wonder why is the second test taking longer. Also, how can the state prove impairment? Assuming they don’t find any opiates or any other schedule 1 controlled substances in the blood. From my understanding there is not yet a legal per se law for other drugs in the State of NC not listed above in those categories so how would they know limits?”

Short Answer: Yes, the burden is on the prosecution.

Long Answer:
Blood draws are initially tested only for alcohol. The legal limit for alcohol is a blood-alcohol-concentration (BAC) of 0.08 at the time of driving/operating your vehicle. If the BAC is below 0.08, the blood is re-tested for a panel of drugs. If your blood comes back with a BAC at or above this number you are per se impaired. This does not mean you will automatically be convicted.

There are other defenses to a DWI. For example, you can argue that your BAC was not above the legal limit at the time of driving. (For example, I won a case a few years ago in which the defendant had a BAC over 0.25, but there was such a delay between my client’s single car crash and the State Trooper showing up at the hospital that the Trooper and prosecutor could not show when my client became impaired. This is a “State vs Eldred” defense. Please note that all cases are unique and success in one case doesn’t mean anything relative to your case.) You can argue that the prosecution can’t prove you were the driver. You can argue that the officer performed all the Standard Field Sobriety Tests wrong (which they often do!). You can argue that the police didn’t have a right to pull you over or didn’t have probable cause to make you take a breath/blood test or arrest you. These, and many others, are the sorts of issues a good lawyer will look into on your behalf.

While there is no corresponding per se limit for drugs like there is for alcohol, the prosecutor can still argue that you were “appreciably impaired”. (Prosecutors can/will also do this if your BAC is below 0.08. Don’t expect your case to be dismissed just because your BAC was below the legal limit, I’ve tried cases with BACs as low as 0.05 and 0.04.)

The burden of proof is still on the prosecution in an appreciable impairment case. Prosecutors have to prove that (1) there was a noticeable impairment of your faculties at the time you drove, and (2) that impairment was caused by an impairing substance (not, for example, by disability or illness). Appreciable impairment prosecutions are common in situations such as drug-only DWIs, marijuana-only DWIs, cases with BACs below 0.08, and cases where the defendant refuses to take a breath/blood test. The defenses listed above apply in this situation as well.

The final question is what happens if the drug panel of your blood comes back with nothing at all, no impairing substances. You would expect a prosecutor to dismiss your case because they cannot prove you had an impairing substance in your system. You would think this would be ethically required. And many prosecutors will. However, some prosecutors offices will still prosecute you, and will claim that there must have been an impairing substance in your blood, one that isn’t tested for in the blood panel.

Published by wilsondurhamlaw

Criminal Defense Attorney serving Durham, Orange, and Chatham counties.

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