According to case law, appreciable impairment has been defined as a lost of control of one's mental and physical faculties as to appreciably impairment their mental and physical faculties. See Generally State v. Harrington 336 S.E.2d 852 (1985). Black's Law Dictionary defines impairment as a weakening, making worse, or diminishment. See Black's Law Dictionary 677 (5th ed. 1979). The standard, therefore, is vague and fact intensive, each case will depend on the evidence admitted at trial.
Proving Appreciable Impairment
As with any type of criminal proceeding, the prosecutor must prove appreciable impairment beyond a reasonable doubt. The prosecutor will attempt to prove this standard by presenting evidence of impairment. The field sobriety tests will be introduced, any form of bad driving will be presented and statements of guilt made by the defendant. Examples of facts of appreciable impairment could be slurred speech, trouble exiting the vehicle or evidence of open containers or drugs. Driving that can be characterized as bad includes weaving, swerving, hitting a curb, causing an accident, or the inability to stop the vehicle in a safe and proper location.
Impairment cue involved in the field sobriety tests will also be introduced. On the walk and turn test there are a total of 8 cues, 2 out of 8 is considered impairment. In the HGN test or pen test, 4 out of 6 cues is impairment. During one-leg stand 2 out of 4 cues can be considered impairment.
NC DWI Statute N.C.G.S. 138.1
(a) Offense. - A person commits the offense of impaired driving if he drives any vehicle upon any highway, any street, or any public vehicular area within this State:
(1) While under the influence of an impairing substance; or
(2) After having consumed sufficient alcohol that he has, at any relevant time after the driving, an alcohol concentration of 0.08 or more. The results of a chemical analysis shall be deemed sufficient evidence to prove a person's alcohol concentration; or
(3) With any amount of a Schedule I controlled substance, as listed in G.S. 90-89, or its metabolites in his blood or urine.
(a1) A person who has submitted to a chemical analysis of a blood sample, pursuant to G.S. 20-139.1(d), may use the result in rebuttal as evidence that the person did not have, at a relevant time after driving, an alcohol concentration of 0.08 or more.
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