In most cases brought to trial, a defendant has submitted to breathalzyer testing, and there is a reported BAC level. In those cases, the State of North Carolina only has to prove that an accused driver was (1) driving; (2) in the county where charged; and (3) a BAC level of 0.08 or greater. However, in some cases, there is no BAC level, and the State must then prove that the driver’s ability to safely drive was “materially and appreciably impaired.” Examples of such cases include: (1) a BAC level of below 0.08 (yes, these cases are routinely prosecuted even though they are below the “legal limit”); (2) the defendant refuses to submit to breathalyzer testing; and/or (3) the defendant is impaired by some substance other than alcohol (either prescription or illegal drugs)

Appreciable Impairment Defined

According to case law, “appreciable impairment” has been defined as a “loss of control of one’s mental and physical faculties so as to appreciably impair their mental and physical faculties.” See generally, State v. Harrington 336 S.E.2d 852 (1985). Black’s Law Dictionary defines “impairment” as a “weakening, making worse, or diminishment.” See Black’s Law Dictionary 677 (5th ed. 1979). The actual standard seems rather vague, and therefore, will necessarily be factually intensive. In other words, the ultimate outcome of each case will depend on the evidence presented at trial.

Proving Appreciable Impairment

As with any criminal proceeding, the State bears the sole burden of proving appreciable impairment beyond a reasonable doubt. The prosecutor will attempt to show this standard by presenting evidence of impairment. The results of field sobriety tests will be introduced as well as any form of bad driving will be presented. And, any incriminating statements or admissions made by the defendant will surely be shown. Typical examples of driver conduct showing appreciable impairment include slurred speech, trouble exiting the vehicle, leaning on the vehicle for support, falling down, or evidence of open alcohol containers or drugs. Examples of driving that have been characterized as “appreciable impairment” include weaving within a lane, crossing lines, swerving, hitting a curb or scausing an accident, or the inability to stop the vehicle in a safe and proper location. Impairment cues demonstrated in the field sobriety tests will also be introduced. In the HGN test, 4 out of 6 cues is considered impairment. On the walk and turn test, 2 out of 8 is considered failure. During one leg stand, 2 out of 4 cues shows impairment.

Defending Appreciable Impairment Cases

At each stage of the criminal prosecution, the defense lawyer must counter the State’s case. How is this done? After careful and thorough review of all evidence, defense counsel must highlight all of those cues of impairment that the defendant did not exhibit. There are a total of 24 cues available under NHTSA guidelines. Only one (1) cue or other legal basis (expired tag, etc.) is sufficient for a police officer to stop a vehicle. However, the absence of cues can be argued to show the driver was not impaired.

The same challenge to the Standardized Field Sobriety Tests (SFSTs) applies. Mr. Reeves has undergone the same training as police and has received his NHTSA certificate for “DWI Detection and Standardized Field Sobriety Testing.” As a result, he can use the NHTSA Training Manual to show whether or not the roadside tests were administered properly. If not, the NHTSA manual specifically says in Section 8, page 19 that the results are compromised and invalidated. Any other non-standardized tests (counting, alphabet, finger to nose, etc.) can similarly be challenged as these “tests” have not been recognized or subjected to scientific validation.

In cases where there is video and no BAC level, judges and especially juries tend to resolve questions of quilt or innocence on how a defendant looks and acts. Typical examples of conduct which should be highlighted is whether the driver’s speech is slurred, is he/she engaging, is their speech coherent? When walking, do they sway, stagger, or fall? And finally, in every case, there will usually be at least one, sometimes more, “defining moment” where the defendant does something that someone truly impaired could not do. Show that moment to the judge or jury several times. Let them draw their own conclusion and then ask for an acquittal.