If you blew a .08, and if your lawyer cannot challenge the admission of that into evidence (using the techniques described above regarding Phase I, Phase II, and Phase III), and if your lawyer can’t show that the number you blew was within the margin of error of the breathalyzer machine, then you stand a likelihood of being convicted.

However, most judges require some additional evidence of impairment with a .08 or .09 breathalyzer result. So, if you failed the Field Sobriety Tests, for instance, then that in addition to the .08 or .09 might be enough to convict you.

Note that you do have legal defenses, and your lawyer should look at all of them. But if those defenses do not work, and the test result is admitted into evidence, then the District Attorney has proved what is called “per se” impairment.

“Per se” impairment means that a judge or jury can find you guilty on the BAC number alone of impairment. The DA does not need to prove any other facts regarding your impairment.

If you blew or got a blood test that show you were below .08, then you are not out of the woods. That’s because under North Carolina law, the police officer can offer into evidence other facts that could be used to convict you. For instance, the police officer could point to your driving, your slurring of words, unsteadiness on your feet, your admission of how much you had to drink, etc. etc. to show that you were impaired, even if the breathlyzer machine revealed a result lower than .08.

This is called “common law” proof of impairment. It’s the old way – before the introduction of breathalyzer machines – of showing the driver was impaired, and it is still frequently used where the police don’t have a result at all or don’t have a result showing a breathalyzer of .08 or above.

When your breathalyzer result or blood test result is below a .08, your attorney may wish to have that fact introduced into evidence to prove that you were not impaired. You want to talk to your DWI lawyer about this so you can understand his strategy.

Damon Chetson - 1008 posts

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.

Raleigh Criminal Lawyer