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DRIVING WHILE IMPAIRED – Defining “Driving”

As always, we begin our analysis by reviewing the relevant law, N.C.G.S. 20-138.1: “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: While under

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DRUGGED DRIVING IN NORTH CAROLINA

Drugged Driving – or Drug DWI – is a form of “Impaired Driving,” under N.C.G.S. 20-138.1. This is the same law that the State uses to convict drunk drivers. In other words, the same law governs drunk driving and drugged driving. But, operating under the influence of drugs, and operating under the influence of alcohol, are two very different things.

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Serious cases require serious representation.
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DRUGGED DRIVING

DRUGGED DRIVING - OR DRUG DWI - IS A FORM OF IMPAIRED DRIVING UNDER N.C.G.S. ⸹ 20-138.1. This is the same law that the State uses to convict drunk drivers. In other words, the same law governs drunk driving and drugged driving. But, operating under the influence of drugs, and operating under the influence of alcohol, are two very different things.
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FLETCHER LEGAL IS A CHARLOTTE-BASED LAW PRACTICE DEDICATED TO HELPING OUR CLIENTS NAVIGATE BOTH THE JUDICIAL PROCESS, AND LIFE’S MOST DIFFICULT MOMENTS. We constantly push the limits of what’s possible when it comes to integrating technology into solo practice with the goal of reducing client fees and expanding access to law. We believe in treating people the way we want to be treated.

WE FIRMLY BELIEVE THAT RESULTS SPEAK FOR THEMSELVES, BUT RESULTS AREN’T EVERYTHING. We believe that relationships are key, and we only accept clients that we feel we can have a successful partnership with to reach the best results. We believe that legal emergencies rarely occur during business hours, and that it is essential for clients to have Attorney Fletcher’s personal cell phone number.

WE ACCEPT CLIENTS, NOT CASES, AND WE GO WHERE WE ARE NEEDED, ACROSS ALL 100 NORTH CAROLINA COUNTIES. We stick to what we’re good at, continually pushing the envelope and streamlining process steps. We always set our clients up for the best possible outcome.

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DRIVING WITH ANY AMOUNT OF A SCHEDULE I DRUG IN THE BLOODSTREAM IS GROUNDS FOR CONVICTION.

DRUGGED DRIVING – OR DRUG DWI – IS A FORM OF IMPAIRED DRIVING UNDER N.C.G.S. ⸹ 20-138.1. This is the same law that the State uses to convict drunk drivers. In other words, the same law governs drunk driving and drugged driving. But, operating under the influence of drugs, and operating under the influence of alcohol, are two very different things.

IT’S NOT ILLEGAL TO DRINK AND DRIVE IN NORTH CAROLINA; IT’S ILLEGAL TO BE DRUNK AND DRIVE. North Carolina’s current laws leave little to no room for the recreational marijuana user who, after after hitting his vape pen, gets behind the wheel.

DRIVING UNDER THE INFLUENCE OF DRUGS, EVEN DOCTOR PRESCRIBED MEDICATION, IS ONE OF THOSE AREAS WHERE THE LAW JUST HASN’T KEPT UP WITH REALITY. Police officers and departments do a great job of catching drunk drivers: they have been trained on what signs to look for, and how to determine whether a driver is too drunk to be behind the wheel.

POLICE OFFICERS ARE NOT, HOWEVER, ALWAYS ADEQUATELY TRAINED OR GIVEN THE PROPER RESOURCES TO DETERMINE WHETHER SOMEONE IS DRIVING HIGH. Drugged Driving is difficult to prove, especially if the police do not get a chemical test. Moreover, a special type of police officer, known as a Drug Recognition Expert (DRE) is generally needed to assess and render a professional opinion as to whether a driver is impaired by drugs.

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N.C.G.S. ⸹ 20-138.1 CREATES THREE DIFFERENT TYPES OF IMPAIRED DRIVING CHARGES

Prosecutors typically proceed under a Substantial Impairment theory when, for whatever reason, a chemical test is either unavailable or inadmissible. This could happen for a variety of reasons: perhaps the crime lab has improperly erred tracking the chain of custody, or in cases where the driver refused to blow, a chemical test of simply not available. Here, facts such as weaving, speeding, performance of SFST’s, and admission(s) to drinking become especially important.

Prosecutors proceed under Prong II impairment theorys when they have chemical tests at their disposal showing that at any relevant time after driving, the driver had a blood alcohol content of .08 or higher. This is typically obtained through a breathalyzer machine, preformed at the jail rather than on the side of the road.

In suspected drugged driving cases, or where the driver refuses to blow, but police demand a blood test, a driver can be found guilty of DWI if any amount of a Schedule I substance is detected in their blood or urine. This applies even if the medication detected was doctor-prescribed.

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WHAT THE STATE MUST PROVE TO SECURE A DRUG DWI CONVICTION

THE BEST PLACE TO BEGIN IS BY READING THE STATUTE, N.C.G.S. ⸹ 20-138.1. The burden is on the State to prove each of the following elements beyond a reasonable doubt:

  • (A) That the Defendant drove; (and)

  • (B) A vehicle; (and)

  • (C) Upon a street, highway, or public vehicular area; (and)

    • (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.

The State must prove elements A, and B, and C all beyond a reasonable doubt, and must also prove ONE of the bullet points. In the business, we call these bullet points “Prongs.”

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"DO I BLOW?"

MANY OF MY CLIENTS MISTAKENLY BELIEVE THAT IF THEY DON’T BLOW, OR OTHERWISE CONSENT TO A CHEMICAL TEST, THE STATE WON’T HAVE A CASE. THIS IS UTTERLY AND COMPLETELY WRONG. I know what you want to ask me: “Derek, if I get stopped, do I blow or not?” Short answer: it’s complicated. But, I absolutely promise that throughout these posts, I will teach you everything I know about handling a DWI traffic stop. And, “everything that I know” may just come in helpful for you one day.

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NORTH CAROLINA DRIVERS HAVE THR RIGHT TO REFUSE A CHEMICAL TEST

A CHEMICAL ANALYSIS IS A REST OF A PERSON’S BREATH, BLOOD, URINE, OR OTHER BODILY FLUID…to determine the person’s alcohol concentration or presence of an impairing substance. N.C.G.S. 20-4.01(3a). Generally, a person has the right to refuse chemical testing, but if you do so in North Carolina:

  • EVIDENCE OF YOUR REFUSAL MAY BE USED AGAINST YOU in court as an implication of guilt.

  • YOUR NORTH CAROLINA DRIVER’S LICENSE WILL BE IMMEDIATELY REVOKED, and a person who has refused a chemical test will not become eligible for a Limited Driving Privilege Until at least 6 months have passed;

  • THE CHEMICAL ANALYST OR ARRESTING OFFICER MAY STILL REQUEST A SEARCH WARRANT from the Magistrate to conduct a blood test, against your will, and even if you have refused.
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SUBSTANTIAL IMPAIRMENT (PRONG 1) OCCURS WHEN THE STATE LACKS A CHEMICAL TEST

UNDER PRONG 1 DRUGGED DRIVING PROSECUTIONS, THE STATE MUST SUBMIT OTHER EVIDENCE OF IMPAIRMENT, such as: the driver caused an accident, was speeding, driving too slowly, swerving, admitted to drug use, hostile/violent behavior, pinpoint pupils; I could go on and on ad infinitum.

A HOT TOPIC IN DRUG-DWI LITIGATION RIGHT NOW IS WHETHER THE RESULTS OF STANDARDIZED FIELD SOBRIETY TESTS (SFST’s) SHOULD BE ADMISSIBLE IN DRUG-DWI CASES to show that defendant was operating under the influence of drugs. I believe that NHTSA developed SFST’s to detect alcohol impairment, not drug impairment, and that SFST’s are irrelevant in Drugged Driving cases. Moreover, the Massachusetts Supreme Court agrees with me, see Commonwealth v. Gerhardt, 477 Mass. 775 (2017).

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SCHEDULE 1 CONTROLLED SUBSTANCE (PRONG 3) OCCURS WHEN THE STATE HAS AN ADMISSIBLE CHEMICAL TEST

IF THE STATE DOES IN FACT POSSESS THE RESULTS OF A CHEMICAL ANALYSIS, AND THE TEST SHOWS POSITIVE FOR A SCHEDULE 1 DRUG, THE DEFENDANT SHOULD BE PROSECUTED UNDER PRONG 3. Here, defendant is guilty of Impaired Driving if he operates a vehicle, on a street, highway, or PVA, “with any amount of a Schedule I controlled substance, as listed in G.S. 90-89, or its metabolites in his blood or urine.” N.C.G.S. 20-138.1(a)(3).

Schedule I drugs include (but are not limited to):

  • Almost all opiates;

  • fentanyl;

  • codeine;

  • heroin;

  • morphine;

  • MDMA.
  • mescaline;

  • peyote;

  • psilocybin;

  • any type of synthetic cannabinoid.

THE EASIEST WAY FOR THE STATE TO PROVE IMPAIRMENT IS BY INTRODUCING THE RESULTS OF A CHEMICAL TEST AT TRIAL. This is especially true in drunk driving, breath-test cases. These test results are admissible in court without the legal foundation necessary concerning introduction of other types of scientific evidence. N.C.G.S. 20-139.1(a) provides that, in an implied consent case, “a person’s alcohol concentration or the presence of any other impairing substance in the person’s body as shown by a chemical analysis is admissible in evidence,” as long as the test was carried out in accordance with the other provisions of N.C.G.S. 20-139.1.

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ARE THERE A LOT OF PEOPLE DRIVING AROUND HIGH?

SHORT ANSWER: YES!

BETWEEN 2013 AND 2014, THE NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION (NHTSA) CONDUCTED THE NATIONAL ROADSIDE SURVEY OF ALCOHOL AND DRUG USE BY DRIVERS. The test was entirely voluntary, and anonymous. NHTSA had conducted similar tests in the early 1970’s and early 1990’s. Those results were recorded, studied, and compared.

THE 2013-2014 NATIONAL ROADSIDE STUDY OF ALCOHOL AND DRUG USE BY DRIVERS STUDY FOUND A SIGNIFICANT DECREASING TREND IN ALCOHOL USE FROM THE FIRST STUDY CONDUCTED IN 1973. During weekend, nighttime driving, when the most drunk drivers are on the road, only 8.3% of drivers tested alcohol positive, with only 1.5% having a blood alcohol content (BAC) greater than .08.

THE SAME STUDY ALSO TESTED DRUG PRESENCE THROUGH VOLUNTARY BLOOD TESTS. While the mere presence of drugs in a driver’s bloodstream does not necessarily indicate impairment, the results are nonetheless surprisingly high.

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RESULTS OF THE 2013-2014 NATIONAL ROADSIDE STUDY OF ALCOHOL AND DRUG USE

IN THE 2013-2014 STUDY, NHTSA FOUND THAT 22.5% OF WEEKEND, NIGHTTIME DRIVERS TESTED POSITIVE FOR DRUGS IN THEIR BLOODSTREAM. MORE THAN 1 OUT OF EVERY 5 DRIVERS ON THE ROAD TESTED POSITIVE FOR DRUGS! And remember, those were just the people that consented to a voluntary government blood draw! The morning commute isn’t much better: during weekdays, between 9:00 am and 5:00 pm, 19% of all drivers tested positive for drugs.

RESULTS OF THE NHTSA STUDIES TEND TO SHOW THAT ALTHOUGH DRUNK DRIVING IS TRENDING DOWN, DRUGGED DRIVING IS RISING FAST!

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BURDEN OF PROOF TO CONVICT IMPAIRED DRIVER IN NC FOR DRUG DWI

TO BE CONVICTED OF DRIVING WHILE IMPAIRED IN NORTH CAROLINA, the State must prove 1 of 3 “prongs” beyond a reasonable doubt; either:

  1. The driver was substantially impaired; or

  2. The driver had a BAC of .08 or higher; or

  3. The driver had a Schedule I controlled substance in their bloodstream during operation.

HOW THE STATE DETERMINES WHAT METHOD OF PROSECUTION TO USE. If the State is able to successfully introduce the results of a chemical test obtained from the driver’s blood, breath, or urine, they will likely proceed under either Prong 2 or Prong 3. Prong 2 is used in drunk driving cases; Prong 3 is used in drugged driving cases. The hardest prong of the 3 to prove is Prong 1, or “Substantial Impairment,” which is limited to cases where the state does not have the results of a chemical test to introduce at trial.

DWI CASES ARE MORE TECHNICAL AND COMPLEX THAN MURDER CHARGES. Drug Impaired Driving cases are – by far – some of the very most technical, and most difficult, types of criminal charges to defend in North Carolina. The consequences – and the stakes – are very serious, including the possibility of mandatory jail time, expensive fees and costs, as well as a mandatory license revocation. Don’t attempt to handle something like this on your own – always call in a professional!
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HOW A LAWYER CAN HELP WITH YOUR CRIMINAL CHARGE(S)

SENTENCING. Once you’re past the guilt or innocence phase, and the judge is about to enter judgment, your lawyer has an opportunity to recommend a particular sentence to the court. A good lawyer can clearly and convincingly articulate to the judge why you acted the way you did, what you have done to repair the damage you caused, and any other factors that mitigate your culpability in the offense. Defense Counsel’s primary duty, at this stage, is to seek (and persuade a judge) to sentence the defendant near the minimum sentence. This isn’t always easy; especially when a District Attorney adamantly demands he be sentenced to the max.
MITIGATING FACTORS. An experienced attorney will learn what remedial actions his client has taken pre-trial, and explain how they should mitigate the sentence. Has the defendant voluntarily entered substance abuse treatment after being charged with a DWI/DUI? If so, Counsel should mention that the client sought treatment voluntarily, whether the treatment was inpatient or outpatient, how long the program lasted, whether the client has a sponsor, how many AA or NA meetings a week they attend, and that they just picked up a 90 day chip.

Experienced lawyers know what facts will mitigate the damage at sentencing, and can be the difference between community service and active jail time.

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WHERE WE GO: GEOGRAPHIC PRACTICE AREAS

Although we travel across the entire State of North Carolina – to each and every District and Superior Court – we are based in Charlotte. You could say that our home base consists of the following:

Serving: Mecklenburg, Union, Gaston, Cabarrus, Iredell, Rowan, Cleveland, Lincoln, Stanly, Davidson, Catawba, and Anson Counties, as well as Charlotte, Huntersville, Cornelius, Davidson, Lake Norman, Mooresville, Troutman, Statesville, Matthews, Mint Hill, Harrisburg, Weddington, Waxhaw, Indian Trail, Monroe, Wadesboro, Wingate, Polkton, Concord, Kannapolis, China Grove, Salisbury, Lexington, Thomasville, High Point, Denver, Lincolnton, Newton, Conover, Hickory, Belmont, Lowell, Mt. Holly, Lowesville, Gastonia, Dallas, Bessemer City, Kings Mountain, Shelby, Pineville, Midland, Locust, Albemarle, Rockingham, Asheville, Winston-Salem, Greensboro, Raleigh, and Wilmington.

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FLETCHER LEGAL HELPS CLIENTS JUST LIKE YOU!

SERIOUS CASES REQUIRE SERIOUS REPRESENTATION. If you or someone you know has questions restoring their firearm rights, or to begin the process of restoring your gun rights now, call FLETCHER LEGAL at 704-747-7262, shoot that number a text, step into our virtual lobby for a video call, or book an appointment now for your free case evaluation. Fletcher Legal has helped clients restore North Carolina firearm rights, appeal from pistol purchase denials, and challenge concealed carry decisions. We conduct independent investigations in every case we take, which reduces denials, and ensures a smooth hearing.
VIRTUAL SERVICES REDUCE CLIENT EXPENSES. Schedule an appointment today to speak with Attorney Fletcher, either by video call, text message, or phone call. We offer flexible payment arrangements, independent investigations, and 24 x 7 emergency services. Book an appointment online now to begin building your defense.
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