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Can I be arrested for a DWI without being impaired?

Many people assume that a person must be impaired or a .08 or above in order to be arrested and charged with a driving while impaired offense. This is simply false. Innocent people – that is, people who are not appreciably impaired and who have not had a .08 BrAC or BAC or any amount of any opiate or metabolite thereof in their system at a time relevant to the driving – are arrested all of the time.

How does this happen?

DWI Checkpoints

The Fourth Amendment to the Constitution creates a legal presumption against detaining someone, whether they be driving in their cars, or walking on the streets. However, the Supreme Court has established exceptions to this general rule, and these exceptions are beginning to swallow the rule. One of these exceptions is that a checkpoint may be established by police to detain people briefly for a proper programmatic purpose.

The North Carolina Supreme Court has established very broad rules, such that even seatbelt and license checks are constitutional. And, of course, DWI checkpoints have been ruled constitutional.

Consequently, someone can be stopped, driving home from a restaurant, and can be asked whether they had a glass of wine or beer at dinner. If they answer yes, they may be asked to perform Standardized Field Sobriety Tests.

Since these SFSTs are so subjective, and poor performance can be the result of naturally poor balance, bad footing, high heels, a sloped surface, or nervousness about having to perform these tests in front of a uniformed officer under the glare of checkpoint floodlights, a person may do badly on the SFSTs, resulting in his arrest.

Poor Performance on SFSTs

The Standardized Field Sobriety Tests – walk and turn, one legged stand, and horizontal gaze nystagmus – are, to put it bluntly, flawed. There is not independent scientific literature that validates these tests, other than that literature produced by the National Highway Traffic Safety Administration, the same agency that created the SFSTs in the first place.

In addition, performance on the SFSTs is in the eye of the beholder. Since these tests are rarely performed in ideal settings, and frequently never filmed by the video cameras that exist in probably 40 percent of the police cruisers in the Wake County area, how someone performed on these tests is up to the police officer.

Even an honest police officer acting in good faith may judge someone’s performance differently from another honest police officer acting in good faith.

It’s always best to decline to perform any HGN, Walk and Turn, One Legged Stand, counting, alphabet or other so-called sobriety tests. Politely refuse.

Poor performance, which can be the result of any number of factors, may result in an arrest, even though someone isn’t impaired.

Drug Recognition Experts

The entire DRE enterprise was exposed as essentially junk science in an extensive 8-day hearing last year in Maryland. But North Carolina has written the Drug Recognition Expert into our code of Evidence, and so it’s here to stay for a while.

Admission that you have consumed even a lawfully prescribed medicine may cause a so-called DRE to start poking and prodding you, using a pupilometer, and conducting quasi-medical exams (even though they are unlicensed) on drivers in order to determine whether the person is impaired on the medicine.

Even though there may be no signs of actual impairment, the officer may claim impairment because of the “results” of the drug recognition evaluation.

These are just three ways that someone can be charged with a DWI when in fact they are completely innocent.



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