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 the influence of an impairing substance; or
  • After having consumed sufficient alcohol that he has, at any relevant time after the driving, an alcohol concentration of .08 or more. The results of a chemical analysis shall be deemed sufficient evidence to prove a person’s alcohol concentration; or
  • With any amount of a Schedule I controlled substance, as listed in N.C.G.S. 90-89, or its metabolites in his blood or urine.” N.C.G.S. 20-138.1.

Let’s begin by examining the introductory paragraph of this statute. Virtually every word of this statute has been litigated and decided by North Carolina Appellate Courts, beginning with the word “Driving.”


The term “driver” is defined at N.C.G.S. 20-4.01(7) as being synonymous with the term “operator,” defined in N.C.G.S. 20.4.01(25). Both words (and similar words, such as drive, driving, operate, operating) share the same meaning. An operator is “[a] person in actual physical control of a vehicle which is in motion or which has the engine running.”

Defendant’s purpose for taking physical control of the vehicle is irrelevant when considering whether defendant was driving. For crimes where driving is an essential element of the offense, the State does not need to establish that the vehicle was in motion with defendant behind the wheel, or that defendant started the car for purposes of driving it.

In State v. Fields, 77 N.C. App. 404 (1985), a police officer came upon a vehicle sitting in the right hand lane of the road. The vehicle was motionless, and defendant was seated behind the wheel. The vehicle’s owner was seated on the passenger side. Both defendant and passenger testified at trial that the passenger had been driving, and stopped the vehicle on the street so that they could use the bathroom. Defendant got back into the driver’s seat of the car and started it because he was cold. The Court of Appeals found that this constituted sufficient evidence of driving in defendant’s DWI prosecution.


In State v. Dula, 77 N.C. App. 473 (1985), the Court found sufficient evidence to justify the inference that defendant was driving where the driver of another car saw black tire marks on the highway, dust in the air, and a car, with its headlights on, lying on its top in a field near a highway. The driver of the other car stopped at the scene, and found defendant in the overturned car, the doors of which were closed, and the windows rolled up. He did not notice anyone else in the area. The investigating officer saw tire marks leading from the black marks on the highway across from the highway shoulder and into the field where the overturned car was located. The officer could not open the car doors. At trial, the defendant called a witness who testified that he (the witness) had in fact been driving the car, but fled the scene before police arrived. This testimony did not render the state’s evidence insufficient.

In State v. Riddle, 56 N.C. App. 701 (1982), the court allowed the case to proceed to the jury where the defendant was seen getting out of the car immediately after the collision, and no one else was seen in or near the car. Defendant said that his friend has been driving and left the scene of the accident, fleeing through the woods. A witness and law enforcement officer checked the woods, and discovered no evidence to support defendant’s claim. When the wrecker arrived, defendant pulled the keys to the car out of his pocket and handed them to the wrecker driver.

Contrast Dula and Riddle with State v. Ray, 54 N.C. App. 701 (1982), where the court found insufficient evidence to support an Impaired Driving charge where the only evidence that defendant was driving was that he was sitting “halfway [in] the front seat.” Id. at 475. In Ray, an officer responded to an accident call, and saw the defendant seated in a car that had hit two parked cars. There was no evidence that the car had been operated recently, or that the motor was running.


N.C.G.S. 20-138.1 prohibits Impaired Driving in North Carolina, including both Drugged Driving and Drunk Driving. To be found guilty, the State must prove beyond a reasonable doubt that defendant was “driving.” The State does not need to prove that defendant’s vehicle was in motion with defendant behind the wheel, or that defendant started the car for purposes of driving it. Case law has held defendants were driving where their vehicles were parked, stationary, crashed, defendant was out of the vehicle, and even where another witness testified in court that he (and not defendant) was actually driving.

In our next post, we will continue breaking down the North Carolina Impaired Driving statute, and finish defining some of its key terms.

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