North Carolina DWI FAQ

1. What is a DWI?

A DWI is an acronym which stands for “Driving While Impaired.” Every state has a law against impaired driving, in North Carolina its referred to as a “DWI” but technically the crime is called “impaired driving.” A DWI is a Class 1 misdemeanor in North Carolina carrying a maximum sentence of 36 months incarceration.

2. Is a DWI different than a DUI?

No, a DWI and a DUI are different names used for the same crime (impaired driving). Here in North Carolina, most attorneys and other members of the criminal justice system refer to impaired driving as “DWIs.”

3. What are the elements of a DWI?

A person is guilty of a DWI if they operate a motor vehicle on a public street, highway, or public vehicular area (PVA) while under the influence of an impairing substance.

4. Can I get convicted of a DWI if law enforcement never determined what my blood alcohol concentration (BAC) was nor did they draw my blood for a chemical analysis?

Yes. There are three ways to prove element #3 (being under the influence of an impairing substance):

  1. having a BAC of .08 or above;
  2. being appreciably impaired or;
  3. having a Schedule 1 controlled substance in system.

In this scenario, you were convicted because the judge or jury (depending on the court level) believed beyond a reasonable doubt that you operated a motor vehicle on a public street while being appreciably impaired due to an impairing substance. The answer for what “appreciably impaired” means is below.

5. What does it mean to be appreciably impaired?

It means that your mental and/or physical faculties were impaired due to an impairing substance; and that impairment was visible or apparent to the officer. This standard is not concrete but on a spectrum. The impairment does not have to be extreme, you do not need to be “hammered” or unable to walk. However, the impairment has to be more than slight impairment. Usually in this scenario, the factfinder (judge or jury) will look at the following to determine if you were appreciably (apparently) impaired including but not limited to:

  1. your performance on field sobriety tests (or refusal to do them);
  2. the officer’s observations regarding your driving;
  3. the officer’s observations regarding your speech (was it slurred);
  4. your demeanor (belligerent, rude, inappropriate behavior towards an officer?);
  5. any difficulty with complying with the officer’s commands (exiting the vehicle; handing over driver’s license and registration);
  6. time of night/day;
  7. any odors coming from your person (marijuana, alcohol) and
  8. refusal of breath test if offered.

6. I was in the driver’s seat with the engine running but the car was “in park,” can I still get a DWI?

Yes. Operating a motor vehicle means having physical control (99% of the time that means being in the driver’s seat) of the vehicle which is in motion or which has the engine running.

7. Can I get a DWI on private property?

No, a person can only be charged with a DWI if they operate a motor vehicle on a public street, highway or public vehicular area (PVA). However, the word “public” does not necessarily mean state owned. You can be charged with a DWI while on a private street (a parking lot owned by Walmart for instance) that is open to public traffic. A common example is a road in a private community or subdivision, the road may be maintained and owned by an HOA or even an individual but since it is open to the public, it is considered a public street in this context.

8. What is a public vehicular area (PVA)?

The most common example of a PVA is a public parking lot. This is a “catch-all” for any and all surfaces/areas used by public traffic like alleys, roundabouts, cul-de-sacs, gravel lots, drive-thrus, etc.

9. I got charged with a DWI but I was not drinking, how can that be?

DWIs are not purely alcohol related crimes. The most common impairing substance is alcohol but a person can be impaired on other substances. Therefore, one can be convicted of a DWI even if they were impaired from ingesting marijuana, ecstasy or even a sleeping pill (Ambien for example).

10. They took my blood when I was arrested for a DWI, but I only have taken my prescription medication. Can I be found guilty?

Yes. This is very common. People get DWIs all of the time due to their legally prescribed medication causing impairment. Some of the most common prescription medications that are impairing substances are: Xanax, Ambien, Vicodin, Lortab, OxyContin, and Hydrocodone. A legal prescription to such medication is not a defense to a DWI. The crime is driving impaired, DWI law does not care about the legal status of the impairing substance.

11. I was pulled over and charged with a DWI but I was having complications due to being a diabetic. Can I be convicted of a DWI?

No. A DWI only deals with impairing substances. A valid medical condition/illness that causes impairment or mimics impairment is a defense. It is a defense because you have not acted with any intent. You did not intentionally ingest any impairing substance. If you suffer from any disease or ailment that may cause such issues tell the officer immediately and ask for medical attention.

12. What happens if I refuse to take field sobriety tests?

A law enforcement officer cannot force you to take field sobriety tests. However, your refusal to perform such tests will be considered evidence of guilt if you went to trial. Additionally, refusing to perform such tests may cause the law enforcement officer to go ahead and arrest you. Either way, it is usually best to refuse said tests if you believe you are impaired.

13. What happens if I refuse to submit to a breath test at the jail or stationhouse?

You will forfeit your driver’s license for one year. Even if you got the DWI dismissed or were acquitted at trial, that one year ban would still be in effect. You may be eligible to get a limited driver’s privilege during that revocation period but it is not guaranteed. Additionally, the law states that refusing a chemical analysis test is evidence of guilt and admissible at trial.

14. I refused to blow at the jail. I was then taken to a hospital where the police officer had a nurse take my blood. Is that legal?

If the officer followed the law (which is not an automatic) then yes. If the officer read you your implied consent rights prior to requesting you submit to a breath test and you refused, the officer can then seek to obtain a search warrant. If the officer is successful (99% chance they will be) in obtaining the warrant within a reasonable period of time then you can be transported to a medical facility and medical personnel will pull your blood after reviewing the warrant.