Part I shall include a brief introduction to DWI's in North Carolina and an explanation of the elements needed to convict someone of Driving While Impaired.
Driving While Impaired (DWI) is the informal name given to the formal crime of Impaired Driving. “DUI” is another synonym used in other states but here in North Carolina it is referred to as a “DWI.” DWI’s are the most prevalent and popular type of an implied consent criminal offenses. What is implied consent? In North Carolina, it means that any licensed driver (NC license or another state’s license) by virtue of having a driver’s license and driving on public roads consents to submit to a chemical analysis of their breath, urine or blood for the detection of any impairing substances if charged with a DWI.
Felony DWI vs. Misdemeanor DWI
DWI is usually a Misdemeanor but can be a Felony. Unless a person charged with a DWI has three prior DWI convictions within the last 10 years (Habitual Impaired Driving – felony) or someone dies as a result of a person’s impaired driving (2nd Degree Murder, Involuntary Manslaughter, Felony Death by Motor Vehicle), the DWI will be a Class 1 misdemeanor. Misdemeanors have four classes from most serious to least serious: A1 (most serious), 1, 2, 3(least serious). Unlike almost all other misdemeanors, DWI’s have their own special Levels and Sentencing.
The DWI level will be dependent on the existence or absence of aggravating and/or mitigating factors (will be explained in Part II). From most serious to least serious the six (6) DWI levels are: Aggravated 1 (most serious), Level 1, Level 2, Level 3, Level 4, Level 5 (least serious)
The Three Elements of DWI
A person commits the offense of impaired driving (DWI) if:
(1.) S/He operate a motor vehicle;
(2.) Upon any highway, any street, or any public vehicular area;
( 3.) While under the influence of an impairing substance
( a.) Or having a blood alcohol concentration (BAC) at or above a .08
(b.) Or with any amount of a Schedule I controlled substance
Element #1: Driving/Operating a Motor Vehicle
Most often this means exactly what it says, that the person charged with a DWI was actively driving the motor vehicle. The vehicle does not have to be an automobile it can be a motorcycle, bicycle, scooter, go-kart BUT NOT a Horse!
Element #2: Upon any Highway, Street or Public Vehicular Area
Any public street or highway will meet this element. "Public" means any road that the general public has access to. A private, gated driveway is an example of a road that is not “public.” What is a public vehicular area? It is a catchall term for any public surface that is used by vehicles such as parking lots or alleyways.
Element #3: While Under the Influence of an Impairing Substance
This element can be met in three (3) different ways:
( 1.) "While under the influence of an impairing substance" is called the “Appreciable Impairment” prong. You can be found guilty of a DWI under this prong even if you never submitted to a breath, urine or blood test if the evidence shows that due to the consummation of an impairing substance your mental and/or physical faculties were appreciably impaired.
(2.) Having a blood alcohol concentration (BAC) at or above .08. This prong is known by most folks. However, a .08 BAC is not the legal limit, it’s the illegal limit. If your BAC is a .08 you will be arrested and charged with a DWI. This prong does require a breath or blood test.
(3.) Having any amount of a Schedule I controlled substance in your system. The most well-known North Carolina Schedule I Controlled Substances are: Heroin, Ecstasy, LSD and Opiates like Morphine. This prong also requires a blood or urine test.
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