Drunk Driving Defenses

The term “drunk driving” refers to the crime of operating a vehicle while a person is impaired by alcohol or any other substance that can affect a person’s driving. In some states, the crime is known as “driving under the influence” (DUI). In other states, the crime is referred to as “driving while intoxicated” or “driving while impaired” (DWI).

In other states, the crime is known as “operating under the influence” (OUI), “operating while impaired” (OWI) or “operating while intoxicated” (OUI).

Many states also have a zero tolerance law for minors or people under 21 and drivers with commercial driver’s licenses. Many states have zero tolerance laws that apply to school bus drivers and drivers who work for childcare facilities as well.

The blood alcohol concentration (BAC) at which a driver is always charged with DUI is 0.08% in all states. A BAC of 0.08% is often referred to as the “legal limit.” However, if a driver is under the age of 21 years, they can be charged if they have a BAC of 0.01 to 0.02 in most states. The laws that specify the lower limit for the BAC of drivers under 21 and others are called “Zero Tolerance” laws.

In North Carolina, it is illegal for a person under 21 to consume any amount of alcohol or drugs and drive. If they are stopped and found to have alcohol or drugs in their system, they are subject to an immediate 30-day revocation of their driver’s license, even before a trial. Other states have the same zero tolerance laws as North Carolina or laws that are quite similar.

As for commercial drivers in North Carolina, the first offense leads to a 10-day suspension of their license to operate a commercial vehicle. Their driver’s license can be revoked for a second or subsequent offense, and the person may not be allowed to operate any vehicle.

It is important to note that drunk driving is considered to be more serious than a simple traffic citation. Drunk driving is considered a criminal offense, which means that if a person is charged and convicted, the conviction appears on the person’s criminal record. Depending on the facts of the case, the crime can be charged as a misdemeanor or a felony.

What Tests Determine Whether a Driver Is Intoxicated?

Before a police officer can administer a test in order to determine if a driver is intoxicated, they first need probable cause to believe that the driver has committed a crime. As a practical matter, this means that the officer must have witnessed the driver operating their vehicle so that the officer has reason to believe they are driving under the influence of alcohol or some other substance that impairs their driving. Or, it might be the case that the officer encounters the driver after the driver has caused an accident.

An example of this would be if the driver were speeding or weaving across the road from side to side. Another example would be if the officer pulled the driver over for something such as a broken tail light but observed an open container of alcohol or drug paraphernalia in the vehicle.

Once the officer has established probable cause, they may ask the driver to step out of their vehicle so they may administer the field sobriety tests to the driver. The following are common law enforcement tests for sobriety that can be administered after a traffic stop:

• Field Sobriety Tests: Field sobriety tests are usually administered at the scene of the stop. They comprise a set of different activities designed to test a person’s balance and agility. They are administered because a drunk person is considered not to have the balance and agility needed to perform the actions required by the tests.
  • This is because the motor skills of a person who is intoxicated are typically impaired. The Field Sobriety Tests are three tests that include the horizontal gaze nystagmus (HGN), the walk-and-turn, and the one-leg stand tests.
  • The officer who administers the tests makes observations and concludes the driver’s possible state of impairment;
• Chemical Breath Test: This test is commonly known as a breathalyzer test. A handheld device measures the concentration of alcohol in a person’s system when the person blows into the device.
  • A chemical breath test may be administered at the scene of the vehicle’s stop or a police station. Drivers can refuse to take a breathalyzer test, as the evidence gathered is likely to be used against the driver in court. However, there are negative consequences for the refusal to take a breathalyzer test in all states, e.g., suspension of the person’s driver’s license;
• Blood or Urine Tests: A sample of the driver’s blood or urine may be collected in order to measure the concentration of alcohol or any other chemical substance in their system. These tests are mostly accurate, as they detect traces of a substance a person has ingested.
  • However, blood and urine tests require a medical professional to obtain the sample, so they are not administered at the scene. Additionally, the police need to obtain a search warrant before they can administer a blood or urine test if the driver does not consent to it.

Are There Any Defenses to Drunk Driving?

There are defenses to a charge of drunk driving. Whether they are available to a person depends on the specific facts of their case. Some of the most common defenses to a DUI charge are as follows:

• Faulty Test Results: As previously mentioned, a person’s BAC level is tested in one of three ways, with a breathalyzer or through a lab test of the person’s blood or urine. If the person can prove that the test was in some way faulty and therefore the results inaccurate or suspect, that may serve as a drunk driving defense.
• No Impairment: A person may argue that they were not impaired while they were driving or at the time they were tested. This would involve attacking the credibility of any evidence that shows otherwise, e.g., test results and the testimony of officers who may have witnessed the person’s driving.
• No Probable Cause: As previously mentioned, a police officer must have probable cause to detain a driver and test their sobriety and fitness to drive. They need probable cause to stop and then arrest a person for drunk driving. If the officer did not have probable cause to stop a driver and then probable cause to arrest the person, this could defeat a prosecution because any evidence of intoxication that the officer obtained after the stop or arrest would be excluded from a trial.
• Not Driving at the Time of Detention: Some states require a police officer to actually witness a driver operating a vehicle while intoxicated in order to arrest them for this crime. The person would have had to have been driving when the officer stopped them on the road. If an officer cannot testify that they saw the person operating a vehicle, this may defeat the prosecution for the DUI.

Or, some other witness must be available to testify to having seen the person driving. If the police officer only observes a person sitting in a parked car, they may not have probable cause to detain the person and investigate them to determine their state of impairment. So, if the driver has caused an accident and another driver is available to testify that the driver was in fact operating a car.

However, some states allow a person to be charged with DUI if the person was in a parked car with the keys in the ignition. For example, if the person fell asleep in the car after drinking, it depends on where the keys were in the car and where the person was sleeping.

The availability of any defense depends on the facts of the case and the law of the state in which the person is charged. It is always best to consult with a local lawyer to determine what defenses are available given the facts of a particular case and the state’s law where the case is pending.

Do I Need the Help of a Lawyer if I Have Been Charged With Drunk Driving?

Drunk driving laws and available defenses vary from state to state and case to case. In some cases, an expert witness may be required to provide input about breath, blood, or urine tests.

Therefore, it is in your best interests to consult with a skilled DUI/DWI attorney if you have been charged with DUI. An experienced criminal defense attorney can help you understand your rights, as well as any defenses that may be available to you. Finally, an attorney can represent you in court as needed.