.08 Is the Law, but Impairment Starts Much Earlier

Laws reflect the moral values of society and impose limits in order to promote the greater good and to make our communities safer places to live.

Though progress has been made, impaired driving continues to defy solution and remains a serious local problem that tragically affects many citizens annually. When a person’s sensibility fails to restrain them from exceeding boundaries which have been established by the law, it becomes the responsibility of the judicial system to address the matter in a fair and rational manner; without bias or favoritism. Unwarranted leniency on the part of the system puts us all at risk.

In North Carolina, the offense of driving while impaired (General Statute 20-138.1) may be proved in one of two ways when an individual drives a vehicle (as defined by statute) on a highway, street or public vehicular area. Both of the following conditions do not need to be present in order for a conviction:

1. By showing that the driver’s physical or mental faculties have been “appreciably impaired” by alcohol, a controlled substance, or another drug/psychoactive substance. To convict on the basis of this prong, the amount of the impairing substance which has been consumed is not relevant.

2. By showing that the driver’s alcohol concentration is 0.08 or more at any relevant time after the driving. To convict on the basis of this prong, whether or not the driver showed outward signs of impairment is not relevant as clarified by the court of appeals in State v. Arrington (August 16, 2011), “It is not necessary for the state to prove that the defendant was appreciably impaired, uncooperative or driving in an unsafe manner in order to prove that defendant is guilty of a violation of N.C. Gen Stat. 20-138.1(a2). To prove guilt, the state need only show that the defendant had an alcohol concentration of 0.08.

Why then I ask, when I monitor Cumberland County’s traffic court, is it not uncommon to hear a “not guilty” verdict for defendants who have been shown to have an alcohol concentration of 0.08 or 0.09 by a valid test, administered in compliance with all statutory and regulatory procedures?

Is it the consequence of “good lawyering“, the result of weak prosecution or possibly an arbitrary desire on the part of the court to “not ruin” the defendants record in hopes they’ll take it upon themselves to change their ways?

Alcohol is a central nervous system depressant which impacts, among other things, one’s ability to concentrate, multitask, see clearly and react at a concentration significantly below the current “legal” limit of 0.08. Well documented studies show substantial crash risks exist at an alcohol concentration of 0.05.

No one drives as well as usual after drinking alcohol, even though some people may look and act as though they are unaffected. So why then does the court appear to tolerate violations of this law?

I am not a prohibitionist and have limited objection to someone who drinks, but then follows a plan which does not place themselves behind the wheel of a vehicle. Years ago, I took less interest in the issue of impaired driving as it did not seem to concern me. However, that has all changed.

I now know first hand what it feels like to lose a loved one to a drunk driver. Hopefully you will never have to share the experience, but chances are you may if impaired driving is not more stringently addressed as the public safety hazard and potentially violent crime it is.