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North Carolina General Statute 20-138.1 | Impaired Driving Defense
N.C.G.S. 20-138.1 is the criminal statute governing impaired driving in North Carolina. While commonly called “DUI,” “DWI,” or “drunk driving,” the law reaches well beyond alcohol. It criminalizes operating a vehicle while under the influence of an impairing substance, driving with an alcohol concentration of 0.08 or more at a relevant time after driving, and driving with any amount of a Schedule I controlled substance or its metabolites in the body. Impairing substances include alcohol, certain illicit drugs, and some prescription medications that can interfere with mental or physical faculties required for safe driving.
At the Powers Law Firm, we help clients navigate these complex charges in the Charlotte-metro region, including Union, Iredell, Gaston, Lincoln, and Rowan counties. We also provide legal representation for serious felony allegations, such as Death by Vehicle, throughout North Carolina on a select basis. Understanding the specific theory of liability under which you have been charged, whether it is "Appreciable Impairment" or the objective "0.08" standard, is the first step in crafting a defense strategy. The following guide breaks down the statutory elements, sentencing guidelines, and critical defenses available under North Carolina law.
Understanding the specific theory of liability under which you have been charged, whether it is "Appreciable Impairment" or the objective "0.08" standard, is the first step in crafting a viable legal defense. The following guide breaks down the statutory elements, sentencing guidelines, and critical defenses available under North Carolina law.
The Core Statute | What is N.C.G.S. 20-138.1?Impaired Driving in North Carolina requires the State to prove beyond a reasonable doubt that the Defendant drove a vehicle on a highway or public vehicular area (PVA) while falling under one of three distinct categories of impairment.
The statute is not a "one-size-fits-all" law. It provides the State (the Assistant District Attorney assigned to prosecute the matter) with three separate evidentiary paths to a conviction. A verdict of guilty can be returned if the jury finds the State has proven any one of these three prongs.
Prima Facie Impaired Driving | Essential Elements of Impaired Driving in North CarolinaUnder Subsection (a) of the statute, the State can prove impairment via the following independent methods:
1. The "Under the Influence" Prong (N.C.G.S. 20-138.1(a)(1))This is the subjective standard. It relies heavily on the officer's observations and opinion testimony.
- The Legal Standard: The State must prove the driver’s faculties were "appreciably impaired."
- Definition of Appreciable: As defined in legal precedent such as State v. Harrington, "appreciable" means sufficient to be recognized and estimated. It does not require the driver to be "drunk," "hammered," or "falling down." It simply means the driver has lost the normal control of their bodily or mental faculties to a noticeable degree.
Impaired to an appreciable extent means that the defendant’s physical or mental faculties were noticeably impaired.
That definition traces directly to State v. Harrington, 78 N.C. App. 39, 45, 336 S.E.2d 852, 855 (1985), where the Court of Appeals held that proof of impairment under N.C.G.S. § 20-138.1(a)(1) does not require evidence of a chemical result or proof that the defendant was legally intoxicated. The State need only show a noticeable effect on mental or physical faculties attributable to an impairing substance.
As such, impairment under N.C.G.S. § 20-138.1(a)(1) may be proven by showing that the defendant was “under the influence of an impairing substance.” That means the substance affected the defendant to an appreciable extent.
Harrington is consistently relied upon alongside earlier Supreme Court authority explaining the same concept. Consistent State v. Rogers, 273 N.C. 208, 159 S.E.2d 677 (1968), impairment exists if alcohol appreciably affects the defendant’s ability to operate a vehicle safely, even when the defendant does not appear “drunk” in the common-sense meaning of that word. The focus is not on drunkenness. The focus is on functional impact.
North Carolina pattern jury instructions for IMPAIRED DRIVING | MISDEMEANOR reinforce this interpretation. Jurors are instructed that a person is impaired if alcohol or another substance has caused a noticeable, “appreciable” effect on the defendant’s physical or mental faculties. The instruction intentionally avoids words like intoxicated or drunk because the statutory standard is broader and lower than those everyday terms suggest.
In courtroom application, appreciable impairment is established almost entirely through observational evidence, not chemistry. Prosecutors rely on officer testimony describing indicators such as odor of alcohol, red or glassy eyes, speech patterns, balance, divided-attention failures, driving behavior, or demeanor and performance on SFSTs - Standardized Field Sobriety Tests. None of those factors alone may prove impairment. The Finder of Fact is called to consider the totality of the circumstances in determining appreciable impairment. The question is whether the totality of the evidence supports that the defendant’s faculties were noticeably affected at the time of driving.
What matters legally is not whether the defendant was unsafe, reckless, or incapable of driving, but whether the substances in the body caused any observable reduction in normal mental clarity or physical coordination. That is why a case can be submitted to the jury without any breath or blood result at all. As such, chemical testing is not a required element for proving impairment under subsection (a)(1).
It is equally important to recognize what “appreciable impairment” does not mean. It does not require proof of blood alcohol concentration at or above 0.08. It does not require proof of visible intoxication. It does not even require proof of unsafe driving. A driver can operate a vehicle without obvious errors and still meet the standard if there is evidence that alcohol or another substance caused noticeable mental or physical effects.
For your reference, the key appellate citations most commonly used are:
Those cases remain the backbone of how “appreciable impairment” is defined, taught to juries, argued by prosecutors, challenged by defense counsel, and interpreted by trial judges across North Carolina courts.
| Legal Concept | Definition & Application | Controlling Authority |
| The Statutory Standard | The State must prove the Defendant was "Under the Influence" of an impairing substance. This is a subjective standard relying on the totality of the circumstances. | N.C.G.S. 20-138.1(a)(1) |
| "Appreciable" Defined | "Appreciable" means sufficient to be recognized and estimated. It does not require the driver to be "drunk" or "hammered." It requires only a noticeable loss of normal control of bodily or mental faculties. | State v. Harrington 78 N.C. App. 39 (1985) |
| Functional Impact | Impairment exists if the substance appreciably affects the ability to operate safely. The focus is on the functional impact on faculties, not on the common-sense definition of "drunkenness." | State v. Rogers 273 N.C. 208 (1968) |
| Evidentiary Basis | Proof relies on observational evidence (odor of alcohol, red eyes, speech, balance, SFSTs). Chemical testing (Breath/Blood) is not a required element for this prong. | N.C. Pattern Jury Instructions (Impaired Driving Misdemeanor) |
| Scope of "Impairment" | The standard is broader and lower than "intoxication." A driver can operate a vehicle without obvious errors (unsafe driving) and still be appreciably impaired if noticeable mental or physical effects are present. | State v. Harrington |
2. The “0.08 Concentration” Prong (N.C.G.S. 20-138.1(a)(2))
This is the objective method of proving impaired driving based exclusively on chemical analysis rather than observational testimony or opinion evidence.
The Legal Standard: The State must prove beyond a reasonable doubt that the defendant had an alcohol concentration of 0.08 or more at any relevant time after the driving.
Key Distinction: Under this prong, the State is not required to prove erratic driving, unsafe operation, or outward signs commonly associated with intoxication. The offense is defined by the chemical result itself, not by the observable effect of alcohol on the defendant. However, the State must still establish that the chemical analysis was lawfully obtained, properly administered, scientifically reliable, and admitted in compliance with the defendant’s statutory testing rights and the procedural safeguards governing breath, blood, or urine analysis.
Attorney Insight | The “Per Se” Misnomer
Referring to this offense as “per se impairment” or as a form of “strict liability” misstates North Carolina law. The statute does not create an automatic or irrebuttable finding of guilt based solely on a numerical result. Instead, the General Assembly has designated an alcohol concentration of 0.08 or more as one specific evidentiary method by which the offense of impaired driving may be proven. Liability still depends on the State first satisfying its burden of establishing the accuracy, admissibility, scientific reliability, and procedural compliance of the chemical testing evidence. Absent that foundational proof, the numerical result cannot support a conviction under subsection (a)(2).
| Legal Concept | Definition & Application |
| Method of Proof | This is the objective method of proving impaired driving based exclusively on chemical analysis rather than observational testimony or opinion evidence. |
| The Legal Standard | The State must prove beyond a reasonable doubt that the defendant had an alcohol concentration of 0.08 or more at any relevant time after the driving. |
| Key Distinction | The State is not required to prove erratic driving, unsafe operation, or outward signs commonly associated with intoxication. The offense is defined by the chemical result itself. However, the State must still establish that the chemical analysis was lawfully obtained, properly administered, scientifically reliable, and admitted in compliance with statutory testing rights. |
| Per Se Misnomer | Referring to this offense as “per se impairment” or “strict liability” misstates North Carolina law. The statute does not create an automatic finding of guilt based solely on a numerical result. It is a specific evidentiary method. Liability depends on the State first satisfying its burden regarding the accuracy, admissibility, and procedural compliance of the testing evidence. |
3. The “Schedule I” Prong (N.C.G.S. 20-138.1(a)(3))
This prong establishes a chemical-presence-based method of proving impaired driving that is fundamentally different from both the observational impairment standard of subsection (a)(1) and the 0.08 concentration standard of subsection (a)(2).
The Legal Standard: The State must prove that the defendant drove a vehicle while any amount of a Schedule I controlled substance, or its metabolites, was present in the defendant’s blood or urine. Unlike the alcohol and “under the influence” prongs, the statute does not require proof that the substance had any impairing effect on the defendant’s ability to drive. Guilt under this subsection flows from chemical presence alone, once admissible and reliable testing establishes the existence of the prohibited substance or metabolite.
Examples: Schedule I substances include heroin, LSD, MDMA (ecstasy), and psilocybin, among others. These substances cannot be lawfully prescribed under medical supervision. As a result, the statute treats any detectable presence as sufficient to establish the offense, without regard to dosage, timing of ingestion, demonstrable impairment, or observable driving behavior.
Legal Characterization and Constitutional Context:
Although courts frequently avoid using the label “strict liability,” subsection (a)(3) functions closer to that concept than any other portion of the impaired driving statute. Liability does not depend on mental state, behavioral impairment, or unsafe driving. Once the State establishes the presence of a Schedule I substance or its metabolite through admissible chemical testing, the statutory elements are met.
Notably, the constitutionality of this approach, particularly as applied to inert or non-impairing metabolites, has been only sparingly litigated in North Carolina and remains largely untested at the appellate level. Existing cases have generally upheld the statute’s enforcement, but there has been no definitive judicial examination of whether felony-level or misdemeanor guilt based solely on metabolic remnants that produce no impairing effect satisfies due-process principles.
This creates a sharp legal distinction between subsection (a)(3) and the rest of N.C.G.S. § 20-138.1. Subsections (a)(1) and (a)(2) still require the State to prove either functional impairment or a qualifying alcohol concentration through reliable evidentiary foundations. Subsection (a)(3), by contrast, centers exclusively on the chemical presence of substances that the legislature has deemed categorically incompatible with lawful driving, regardless of their actual effect at the time of operation.
| Legal Concept | Definition & Application |
| Method of Proof | This prong establishes a chemical-presence-based method of proving impaired driving. It is fundamentally different from both the observational impairment standard of subsection (a)(1) and the 0.08 concentration standard of subsection (a)(2). |
| The Legal Standard | The State must prove that the defendant drove a vehicle while any amount of a Schedule I controlled substance, or its metabolites, was present in the defendant’s blood or urine. The statute does not require proof that the substance had any impairing effect on the ability to drive. Guilt flows from chemical presence alone, once admissible and reliable testing establishes the existence of the substance. |
| Examples & Application | Schedule I substances include heroin, LSD, MDMA (ecstasy), and psilocybin, which cannot be lawfully prescribed. The statute treats any detectable presence as sufficient to establish the offense, without regard to dosage, timing of ingestion, demonstrable impairment, or observable driving behavior. |
| Legal Characterization | Although courts avoid the label "strict liability," this subsection functions closer to that concept than any other portion of the statute. Liability does not depend on mental state, behavioral impairment, or unsafe driving. Once presence is established through admissible testing, the statutory elements are met. |
| Constitutional Context | The constitutionality of this approach, particularly regarding inert or non-impairing metabolites, has been only sparingly litigated and remains largely untested at the appellate level. There is no definitive judicial examination of whether guilt based solely on metabolic remnants satisfying due-process principles. |
| Distinction from Other Prongs | A sharp legal distinction exists between this and the rest of the statute. While subsections (a)(1) and (a)(2) require proof of functional impairment or a qualifying alcohol concentration, subsection (a)(3) centers exclusively on chemical presence, regardless of the substance's actual effect at the time of operation. |
Critical Legal Definitions in NC DWI Law
To navigate a defense, one must understand how North Carolina courts define specific terms within the statute. These definitions often dictate the outcome of a Motion to Dismiss.
"Vehicle"The definition of a vehicle in NC is broad, but N.C.G.S. 20-138.1(e) provides a specific exception.
- Includes: Cars, trucks, motorcycles, mopeds, bicycles, lawnmowers, and golf carts.
- Excludes: Horses. The statute explicitly states that for the purposes of this section, a horse is not a vehicle.
You do not have to be on a public road to be charged. A PVA generally includes areas open to and used by the public for vehicular traffic at any time, including parking lots of businesses, hospitals, schools, and apartment complexes.
NC DWI Sentencing Levels | N.C.G.S. 20-179Impaired Driving is a Misdemeanor, but sentencing is governed by a unique statutory framework (N.C.G.S. 20-179) rather than the standard Class 1/2/3 misdemeanor chart. Punishment is determined by weighing "Gross Aggravating," "Aggravating," and "Mitigating" factors.
| Level of Punishment | Qualifying Factors | Maximum Jail Time | Fines |
| Aggravated Level One | Three or more Gross Aggravating Factors | 36 Months | Up to $10,000 |
| Level One | Children in car (<18) OR Two Gross Aggravating Factors | 24 Months | Up to $4,000 |
| Level Two | One Gross Aggravating Factor | 12 Months | Up to $2,000 |
| Level Three | Aggravating Factors outweigh Mitigating Factors | 6 Months | Up to $1,000 |
| Level Four | Factors are Balanced | 120 Days | Up to $500 |
| Level Five | Mitigating Factors outweigh Aggravating Factors | 60 Days | Up to $200 |
Attorney Insight | The Cultural Shift in NC DWI Enforcement
By Bill Powers, Board Certified Specialist in Criminal Law by the National Board of Trial Advocacy / National Board of Legal Specialist Certification
Driving While Impaired in North Carolina has become increasingly complicated since the days of “drunk driving” and the 0.10 BAC. While always a charge with the potential for substantial harm, historically, it was often discounted by the public as "bad luck."
That mentality was rooted in dangerous assumptions, such as:
- "Only very stupid people get arrested for drunk driving."
- "DUI applies solely to alcohol."
- "You have to be falling-down drunk to be convicted."
The concept of “drunk driving” in the era of Uber, Lyft, and consumer-driven services has changed. Serving as legal counsel to clients accused of impaired driving in the 21st century requires a level of "re-education." We often hear clients say, "I would never do that. I’m against drunk driving." Yet, they find themselves in handcuffs because they did not understand that "Appreciable Impairment" is a far lower threshold than "Drunkenness."
The Disconnect Between Intent and LawThere is a disconnect between personal actions and legal accountability. People charged with DWI rarely comprehend the extent of their behavior related to an arrest. For example, while Canada’s DWI laws are swift and often viewed as part of a restorative process, they are severe regarding admissibility into the country. Furthermore, a common myth is that a DWI can be expunged. Under North Carolina law, a conviction for DWI is generally not eligible for an expungement. It remains on your record permanently.
Frequently Asked Questions About N.C.G.S. 20-138.1Is Impaired Driving (DUI/DWI) a Felony or Misdemeanor?
A standard charge of Impaired Driving under N.C.G.S. 20-138.1 is classified as a misdemeanor criminal charge in North Carolina. However, the offense may be elevated to a felony under specific statutory circumstances involving recidivism or serious bodily harm or a fatality proximately caused by the impaired driving.
Habitual Impaired Driving A driver may be charged with Habitual Impaired Driving under N.C.G.S. 20-138.5 if they have been convicted of three or more prior offenses involving impaired driving within ten years of the date of the current offense. This is a Class F Felony requiring a mandatory minimum active prison term of 12 months.
Felony Serious Injury by Vehicle If impaired driving proximately causes serious injury to another person, the State may pursue charges under N.C.G.S. 20-141.4 for Felony Serious Injury by Vehicle. This is typically a Class F Felony. If the defendant has a prior conviction involving impaired driving within seven years, the charge is elevated to Aggravated Felony Serious Injury by Vehicle, a Class E Felony for sentencing purposes.
Felony Death by Vehicle If impaired driving proximately causes the death of another person, the offense is Felony Death by Vehicle in violation of North Carolina Criminal Law 20-141.4(a1). The offense level is a Class D Felony. If the defendant has a prior conviction involving impaired driving within seven years, the offense is Aggravated Felony Death by Vehicle. Repeat offenders with a prior Felony Death by Vehicle conviction may face Class B2 Second Degree Murder charges.
Can I get a “Wet Reckless” in North Carolina?
North Carolina does not recognize a statutory “Wet Reckless” offense or plea reduction. A charge of impaired driving under N.C.G.S. § 20-138.1 is ordinarily resolved in one of three ways. The case may end in a conviction of DWI, an acquittal at trial, or a dismissal. A dismissal may occur by court order following a proper Motion to Dismiss or Motion to Suppress, or it may result from a prosecutorial dismissal when the State lacks sufficient admissible evidence to prove the charge.
Unlike states that allow prosecutors to amend or plea bargain impaired driving charges down to reckless driving, North Carolina law does not authorize any formal reduction of DWI to reckless driving as a substitute offense. Reckless driving is not a lesser included offense of impaired driving under North Carolina law, and there is no procedural mechanism that allows a DWI charge to be converted into a reckless driving plea in lieu of a DWI conviction.
While related traffic or misdemeanor charges may sometimes be dismissed or resolved through negotiation, the DWI charge itself does not transform into any form of “Wet Reckless.” There is no plea category, statutory designation, or sentencing classification for that result in North Carolina’s impaired driving framework.
What is the “Look-Back” period for prior Impaired Driving (DWI/DUI) in North Carolina?
For standard sentencing under N.C.G.S. 20-179, North Carolina courts apply a strict seven-year look-back period. This window is calculated by measuring from the date of the prior conviction to the date of the current offense. It is not based on the court date or conviction date of the new charge.
Any prior impaired driving conviction that falls within this seven-year window constitutes a Grossly Aggravating Factor. A single Grossly Aggravating Factor mandates a Level Two punishment. While this level of punishment requires a mandatory active term, that requirement does not always mean time in a local jail.
Under specific statutory provisions, the Court may authorize alternatives to incarceration to satisfy the mandatory active term. These alternatives can include credit for time spent in an inpatient substance abuse treatment facility or, in certain circumstances, a court-ordered period of Continuous Alcohol Monitoring (CAM).
Distinction for Habitual Impaired Driving
It is important to distinguish the sentencing rule from the felony recidivist rule. For the charge of Habitual Impaired Driving under N.C.G.S. 20-138.5, the State applies a ten-year look-back period. This distinction creates a scenario where a prior conviction may be too old to be a Grossly Aggravating Factor for misdemeanor sentencing but is still recent enough to count as a predicate conviction for Class F Felony liability.
Does an Impaired Driving (DWI/DUI) Charge in North Carolina Revoke my License?
An immediate Civil Revocation (CVR) of the driver's license occurs under N.C.G.S. 20-16.5 if a driver registers an alcohol concentration of 0.08 or higher (on a breath or blood test) or willfully refuses to submit to chemical testing. This thirty-day revocation is an administrative action separate from the criminal case and takes effect before any conviction.
Obtaining a Pretrial Limited Driving Privilege (LDP)
A driver may be eligible for a limited driving privilege after 10 days of the revocation have passed. To grant this privilege, the District Court Judge must make specific findings of fact consistent with AOC-CVR-10A, including:
- License Status: At the time of the alleged offense, the applicant held either a valid drivers license or a license that had been expired for less than one year.
- No Other Pending Impaired Driving Charges: The applicant does not have any unresolved pending charges involving impaired driving except for the charge which led to the current revocation.
- No New Convictions: The applicant has not had any convictions for an offense involving impaired driving since being charged for the violation.
- Assessment: The applicant has obtained and filed a substance abuse assessment and registered for any recommended training or education.
Willful Refusal
While a willful refusal triggers the immediate 30-day civil revocation, drivers with a willful refusal are generally ineligible for the Pretrial Limited Driving Privilege. A refusal further triggers a separate, mandatory one-year revocation by the NCDMV.
What is Impaired Driving and is there a difference between DUI and DWI in North Carolina?
N.C.G.S. 20-138.1 establishes the single criminal offense of Impaired Driving. This statute applies to the operation of a vehicle while subject to any impairing substance. Although frequently referred to as DUI (Driving Under the Influence) or DWI (Driving While Impaired), North Carolina law makes no legal distinction between the terms. The offense is identical whether the impairment results from alcohol, illicit drugs, or prescribed medications.
What is “Per Se DUI” and is that the law in North Carolina?
The term “Per Se DUI” is a common legal colloquialism, but it is technically a misnomer under North Carolina law. The General Statute does not create a strict liability offense or an automatic presumption of impairment based solely on a number. Instead, the legislature has established an alcohol concentration of 0.08 or higher as one specific evidentiary method to prove the offense of Impaired Driving. The State must still establish the admissibility, reliability, and procedural accuracy of the chemical analysis before a jury can return a guilty verdict based on this prong.
Do you go to jail for DWI / DUI in North Carolina?
Active jail time is a distinct possibility for certain Impaired Driving convictions in North Carolina, but is not automatic in every case. North Carolina utilizes a separate and distinct sentencing protocol, ranging from Level Five (least severe) to Aggravated Level One (most severe) for misdemeanor impaired driving.
Mandatory Active Terms Offenders sentenced at Level Two, Level One, or Aggravated Level One face mandatory active terms of imprisonment. However, the law allows the Court (the sentencing Judge) to authorize alternatives to physical incarceration in appropriate circumstances, such as credit for inpatient substance abuse treatment or a period of Continuous Alcohol Monitoring (CAM).
Suspended Sentences Offenders sentenced at Level Five, Level Four, or Level Three often receive a suspended sentence, although an active period of incarceration is possible (although rare) in any DWI/DUI conviction. The Court may place the driver on supervised or unsupervised probation and may require community service, fines, and substance use assessment and treatment (as may be recommended) rather than an active jail term.
Can you get a hardship or “Cinderella License” for DUI / DWI in NC?
North Carolina law authorizes a Limited Driving Privilege (LDP) for eligible drivers, which serves a similar function to what other states call a “Work License,” "Hardship License" or "Cinderella" license. A Limited Privilege is a Court order allowing a person with a revoked license to drive for essential purposes, such as employment, education, religious worship, and household maintenance. It is not available in every circumstance and there is no “right” to drive.
Pretrial vs. Post-Conviction Drivers may be eligible for a Pretrial Limited Driving Privilege 10 days after a civil revocation for a 0.08 alcohol concentration. Separately, drivers convicted of Level Three, Four, or Five DWI generally may be eligible for a Post-Conviction Limited Driving Privilege.
Level 2 Expansion Recent amendments to N.C.G.S. 20-179.3 have expanded eligibility for a Limited Driving Privilege to certain drivers sentenced at Level Two. A driver may now be eligible for a limited privilege if the sole Grossly Aggravating Factor was a prior conviction for impaired driving within the preceding seven years. To qualify, the driver’s alcohol concentration must have been below 0.15. If granted, this privilege requires the installation of an Ignition Interlock Device.
Is Impaired Driving the same thing as Drunk Driving in North Carolina?
Impaired Driving encompasses a broader and lower legal standard than the common understanding of Drunk Driving. To obtain a conviction under the "Appreciable Impairment" prong of N.C.G.S. 20-138.1, the State is not required to prove the driver was "drunk," "intoxicated," or unable to drive safely.
The Legal Standard The State need only prove that the driver’s mental or physical faculties were appreciably impaired, meaning they were noticeably affected by an impairing substance. A driver may appear to be operating a vehicle safely and still be convicted if the "Totality of the Circumstances" indicates a noticeable reduction in normal mental or physical capabilities.
Full Text of N.C.G.S. 20-138.1
20-138.1. Impaired driving.
(a) Offense. - A person commits the offense of impaired driving if he drives any vehicle upon any highway, any street, or any public vehicular area within this State:
(1) While under the influence of an impairing substance; or
(2) After having consumed sufficient alcohol that he has, at any relevant time after the driving, an alcohol concentration of 0.08 or more. The results of a chemical analysis shall be deemed sufficient evidence to prove a person's alcohol concentration; or
(3) With any amount of a Schedule I controlled substance, as listed in G.S. 90-89, or its metabolites in his blood or urine.
(a1) A person who has submitted to a chemical analysis of a blood sample, pursuant to G.S. 20-139.1(d), may use the result in rebuttal as evidence that the person did not have, at a relevant time after driving, an alcohol concentration of 0.08 or more.
(b) Defense Precluded. - The fact that a person charged with violating this section is or has been legally entitled to use alcohol or a drug is not a defense to a charge under this section.
(b1) Defense Allowed. - Nothing in this section shall preclude a person from asserting that a chemical analysis result is inadmissible pursuant to G.S. 20-139.1(b2).
(c) Pleading. - In any prosecution for impaired driving, the pleading is sufficient if it states the time and place of the alleged offense in the usual form and charges that the defendant drove a vehicle on a highway or public vehicular area while subject to an impairing substance.
(d) Sentencing Hearing and Punishment. - Impaired driving as defined in this section is a misdemeanor. Upon conviction of a defendant of impaired driving, the presiding judge shall hold a sentencing hearing and impose punishment in accordance with G.S. 20-179.
(e) Exception. - Notwithstanding the definition of "vehicle" pursuant to G.S. 20-4.01(49), for purposes of this section the word "vehicle" does not include a horse.
A charge under N.C.G.S. 20-138.1 can feel overwhelming, but an arrest is not a conviction. The complexities of "Appreciable Impairment," the science of chemical testing, and the procedural strictures of North Carolina's implied consent laws provide multiple avenues for a robust defense. Whether challenging the stop, the field sobriety tests, or the admissibility of forensic evidence, a strategic legal defense focuses on the details that matter most.
Bill Powers and the DWI/DUI defense lawyers at Powers Law Firm help clients in the Charlotte-metro region, including Union, Iredell, Gaston, Lincoln, and Rowan counties. We also, for serious death by vehicle charges, help clients throughout NC on a select basis. We understand that navigating the court system and DMV protocols can be confusing and stressful. We are here to answer your questions, explain the legal process, and provide the guidance necessary to help you determine the most appropriate path forward for your specific situation. Please TEXT or call 704-342-4357 to schedule a confidential consultation.
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