So I received a call over the weekend that, though was not that uncommon for me, is probably shocking to the majority of you all. A husband was calling for a Raleigh DWI Attorney for his wife who was charged with a DWI over the weekend. She was involved in a fender-bender in a parking lot. Both his wife and the driver of the other vehicle agreed there was no damage and no need to involve the police. Regardless, the police showed up and ultimately charged this young lady with a DWI. What is surprising is the fact that she had a Breath-Alcohol Concentration of .06. Now, in all fairness, I haven't seen the police report yet, so there could be factors unknown to me that would cause the police to charge her with such a low BAC, but the reality is, whether there is or is not, this type of situation does happen, a lot.
You see, most people believe that only if you have a BAC of .08 or more, you will not receive a DWI charge in North Carolina. While the statute does state that a Defendant can be convicted with a BAC of .08, that is only half of the statute when it comes to impairment. You see, the statute allows for a conviction based on 'Appreciable Impairment.' Now, appreciable impairment is in place for those that may be impaired by something other then alcohol that may be hard to quantify to demonstrate it's impairing effects; like marijuana, cocaine, oxycodone, etc.
There are two problems with appreciable impairment; 1. it is a subjective concept to operate at the whim of the investigating officer and 2. it is used too often for alcohol related DWI's where the BAC was below a .08. Now, don't get me wrong, I understand the purpose of appreciable impairment. Proving impairment can be difficult without some test that supposedly gives a definitive level when someone is impaired or not (like a BAC of .08). But the reality is that too much deference is given to the officers in a lot of these cases where reasonable doubt should prevail. Worse though, is when an officer has a case with a low BAC, instead of letting common sense prevail, their go to is to charge.
I've heard from many clients (and officers as well) that Officers indicate some doubt they have as to the probability the defendant is guilty of the alleged crime, but elect to charge them anyways and 'let the court sort it out.' As if that will be an easy function for a Defendant to handle. The reality is, even a perfectly innocent person charged with a crime is going to have, at a minimum, a severe interruption to their life by having to go to court and try and convince someone of their innocence, and at worse, pay thousands of dollars to an attorney to see the case is dismissed. Worse still, what if the Defendant was arrested, now their mug shot is public record and WILL show up on line. Add to all of this that it will likely take multiple court visits to clear this matter up and you can start to see what a headache this can be. And for those who are charged with a DWI that probably shouldn't have been, they will face a 30 day license suspension just for having been CHARGED with the crime (as in, NOT convicted yet), plus a $100 civil revocation fee.
This idea that the officer believes they don't have a case but elect to charge an individual anyways is ludiciris. Officers are the first gatekeepers in our justice system and it is not their duty to 'pass the buck' as it were. If they have serious doubts about the guilt of the Defendant, they need to let the Defendant go. In a case where someone is charged with a DWI with a .06 BAC, there is absolutely no reason to proceed with charging them beyond some serious exigent circumstances. Perhaps that was the situation in this case. Perhaps this woman was under the influence of something other then alcohol. But I have seen these type of cases enough to know that it is likely the officer got certain the Defendant was driving while impaired and he wasn't going to let some little matter like a low BAC get in his way.
The point of the story is, understand that even perfectly innocent people get charged with a crime, so be careful out there and know your rights!
