Does a .08 BAC compel a guilty verdict in a DWI in NC?

North Carolina’s DWI statute – NCGS 20-138.1 – provides the State with three possibilities in convicting a person of Driving While Impaired in North Carolina.  The State can either convict the person upon a showing that the person had a .08 or above Blood Alcohol Concentration at a relevant time after driving, that the person was appreciably impaired at the time he was driving, or that a chemical analysis of the person’s blood showed metabolites of a Schedule I substance.

The question for North Carolina courts (and juries) has been whether a .08 or above on the BAC requires conviction.  In other words, if the state has no other evidence of impaired driving except for the .08 or above reading, is a jury required to find the person guilty of a DWI (provided that the other elements of the DWI offense are proven).

In a recent case – State v. Simmons (No. COA09-862, Filed: July 20, 2010) – the North Carolina Court of Appeals held that a BAC alone does not require a guilty verdict.  The jury may convict on the basis of a .08 or above BAC, but is not required to do so. In that case, the prosecutor had argued in his closing that the jury, because the state had shown that the Defendant registered a .11 on the breathalyzer machine, was required to convict the jury.

But the Court of Appeals wrote:

Accordingly, although the results of the chemical analyses in this case were sufficient evidence from which the jury could have found that Defendant had an alcohol concentration of 0.11 and, thus, could have convicted Defendant of DWI under N.C. Gen. Stat. § 20-138.1 (a)(2), the results did not compel the jury to do so.

What does this ruling mean for the average DWI? It means that, if all the State offers is the number alone, your lawyer can argue that the judge or jury is not required to convict on that basis alone. Your lawyer can also argue other facts, including how long the test was taken after you were stopped, the fact that you were perhaps driving properly with no swerving or other signs of impaired driving, or the fact that you performed the Standardized Field Sobriety Tests properly.

Damon Chetson

Damon Chetson is a Board Certified Specialist in State and Federal Criminal Law. He represents people charged with serious and minor offenses in Raleigh, Wake County, and the Eastern District of North Carolina. Call (919) 352-9411.