What is DUI in North Carolina?

It seems everyone has different ways to describe impaired driving charges. Some people call it “getting arrested for DUI,” while others may refer to the offense simply as “drunk driving.” WHAT IS DUI IN NORTH CAROLINA?

The truth is, DWI charges can be a bit complicated if not downright confusing at times.

There is more than one way to be convicted and DUI in NC doesn’t necessarily mean you were “drunk” or “drunk driving.”

That’s one reason we think it’s a good idea to carefully analyze the alleged DWI offense and get answers to your questions.

We also recommend you establish an attorney client relationship and begin gathering materials for your defense.

DUI penalties in North Carolina can be quite serious and can result in a license suspension by the North Carolina Department of Transportation / Division of Motor Vehicles (NCDMV), community service, fines, substance abuse assessment and treatment, court costs, and even jail in certain circumstances.

If you’ve been charged with DWI in North Carolina, obtain legal counsel as quickly as possible – Bill Powers, Charlotte DUI Lawyer 

An attorney can help you understand the charges against you and can work with you to develop a defense strategy. We can also explain what happens to your driver’s license and whether you may be entitled to a limited driving privilege.


Call our law office today to schedule a free consultation. We would be happy to discuss your case with you and answer any questions that you may have.  

What do the NC DWI laws say?

Driving while impaired is specifically defined in the North Carolina DWI laws.  It’s in Chapter 20 of the motor vehicle laws.

That law may be found within North Carolina General Statute 20-138.1.

As you might understand, there are also other, related DWI laws in NC that help explain the offense and what happens if you’re found guilty.

For example, there’s a law that requires the installation of an ignition interlock device on your vehicle if you’re convicted of DWI with a blood alcohol content (BAC) reading of .15 or higher.

What is DUI? Is it different than DWI?

A recent North Carolina Court of Appeals opinion helps explain what is DUI or Driving Under the Influence. What is DUI in North Carolina - Driving Under the Influence

That opinion is formally known as North Carolina v. James Matthew Kitchen. Criminal lawyers may also refer to the Court of Appeals ruling as State v. Kitchen.

It’s a 2019 Carteret County case with a DWI conviction for Habitual DWI (felony DUI due to multiple convictions) that was appealed by the Defendant, Mr. Kitchen. At the trial level, the State of North Carolina was represented by the District Attorney’s office Carteret County.

The North Carolina Court of Appeals issued its opinion in State v. Kitchen in May 2022. The case also involved stipulations of prior convictions for DWI and an indictment for Habitual Driving While Impaired, (felony DWI), as indicated by a record/history of multiple prior DWI conviction.

Specifically, the Defendant complains that the Court improperly admitted blood test evidence, alleging the State of North Carolina improperly obtained the same in violation of the Constitutional Rights.

The Courts opinion in North Carolina v. Kitchen is interesting. It stands for the precept that there is more than one way people accused of violating 20-138.1 can be found guilty – Bill Powers, Author of the NC DWI Quick Reference Guide

What is Impaired Driving?

NCGS 20-138.1 makes it illegal to operate any vehicle on any street, highway or “PVA” Public Vehicular Area in North Carolina.

The law does not refer to DUI or DWI or impaired driving. It is entitled Impaired Driving. But what is that?

It’s important to understand, driving with an alcohol concentration of .08 (or more) is separate and distinct from driving while under the influence of an impairing substance.

N.C.G.S. 20-138.1 specifically uses the word “OR.”

Impaired Driving in NC is either:

  1. Driving While Under the Influence or DUI of an impairing substance OR
  2. Blood Test or Breath Test result of .08 or higher.

DWI trials in North Carolina commonly involve evidence of both, meaning the State may introduce evidence of driving under the influence and a reading or BAC, which often as a .08 or higher – Bill Powers, DWI Lawyer in Charlotte NC

An experienced lawyer can explain what happens with DWI convictions, whether jail time is possible, and how impaired drug and alcohol related driving is a serious offense.

What does DUI stand for?

DUI is an acronym for Driving Under the Influence.

In North Carolina, it is illegal to operate a motor vehicle while impaired by alcohol or drugs. Indeed, the statute refers to both Driving Under the Influence (DUI) and Impaired Driving (DWI).

Can I drive after getting arrested for DUI?

Driving under the influence includes prescription medications and over-the-counter medications that may impair your ability to drive.

While there are technical distinctions between the two, Defense lawyers understand the NC DWI law is written broadly and is intended to be expansive. That means the State is not limited to one type of evidence for a conviction.

In fact, the State can proceed under either theory of Impaired Driving in North Carolina. They can introduce evidence consistent with Driving Under the Influence of an impairing substance (DUI) OR a reading of .08 or higher or a combination of both.

Appreciable Impairment

You can be appreciably impaired by a combination of both legal and illegal drugs and alcohol.

As such, even if your reading is below .08, it is possible to get convicted of DUI in North Carolina based solely on evidence of appreciable impairment.

While some people may refer to the legal limit as 0.079, that’s a bit of a misnomer. It isn’t always a magic number or blood alcohol concentration like .08 or higher.

Evidence of appreciable impairment, even without a reading, can be enough for the person accused to be convicted of a DWI charge.

What does Under the Influence mean?

Being under the influence of an impairing substance means your mental or physical faculties, or both, are appreciably impaired by some type of impairing substance.

Beer, wine, and other types of alcohol are all types of impairing substances. So are things like marijuana and other types of controlled substances, be they legal or illegal.

Appreciable, in the context of being legally impaired, means noticeable or sufficient to be estimated or recognized or described.

The odor of alcohol itself cannot be the sole basis of an arresting officer’s opinion of impairment.

What is Driving While Intoxicated?

As an interesting side note, the Court of Appeals website referencing the published opinions from May 3, 2022 and summarizing the legal issues, describes State v. Kitchen as:

Driving while intoxicated; motion to suppress medical record evidence; Fourth Amendment right to be free from warrantless search and seizure; harmless beyond a reasonable doubt; no prejudicial error.

Judge Allegra Collins in her opinion did not specifically address whether the State’s introduction of the hospital blood test results was in fact a statutory or constitutional violation.

Indeed, Judge Collins uses the term assuming arguendo. That’s a term of art used by lawyers and Judges. It basically means, “for the sake of argument.”

It assumes either a hypothetical or alleged statement of fact is accurate, at least for the purposes of working through the legal argument.

Therefore, the Court “assumes” for the purposes of the legal argument in the Kitchen case that the blood results were in fact introduced in error and/or contrary to the North Carolina DWI law or another constitutional precept.

That does not necessarily mean the blood results were in fact improperly admitted.

Indeed, one key aspect of the Court’s opinion in Kitchen is that there was other, substantial evidence of driving under the influence or DUI, the blood results were not necessary for a conviction.

Put simply, even if improperly admitted, the State presented overwhelming evidence of driving under the influence such that the reading, the blood test result, was not necessary.

Can a prior conviction be admitted as evidence for DWI charges?

Generally speaking, “character evidence” is not admissible for the purpose of showing someone has a propensity to commit crimes.

That means it likely would be improper to argue, “The DWI Defendant did it before, and to prove this new DWI charge, he probably did it again.

What are punishments for North Carolina DWI?

If you are convicted of DUI in North Carolina, you could face severe penalties, including jail time in appropriate circumstances, fines, and a driver’s license suspension. You may be required to obtain a substance abuse assessment and follow any recommendations.

When should you hire a DUI lawyer?

Again, if convicted, the Court considers at a sentencing hearing aggravating and mitigating factors. Aggravating factors must be proven Beyond a Reasonable Doubt by the State.

Driving privileges are not authorized for Level A1, Level 1, and Level 2 DUI charges in NC.

What are mitigating factors? What are aggravating factors?

Aggravating factors include things like gross impairment, especially dangerous or reckless driving, and negligent driving. Mitigating factors include obtaining an alcohol assessment and complying with recommendations, slight impairment (.09 or less), and a safe driving record, among other things.

The Court also considers something called Grossly Aggravating Factors. Grossly aggravating factors include a prior conviction of DWI within seven years, serious injury to another person caused by impaired driving, or having a child under the age of eighteen in your vehicle at the time.

If proven beyond a Reasonable Doubt, the Court may set a minimum jail sentence as well as a maximum possible term of incarceration. DWI convictions are serious stuff, especially if you have prior offenses (convictions) or prior DWI conviction.

DWI penalties also may be related to whether mitigating factors outweigh aggravating factors. For information about DWI in North Carolina and sentencing, check out our NC DWI Quick Reference Guide.

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