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The odor of alcohol alone is not enough to support a conviction of DWI and is not enough by itself to justify probable cause to arrest. It is not illegal to drive after drinking, it is just illegal to drive while impaired which in North Carolina impairment is a BAC of .08%. North Carolina looks at the totality of the circumstances when determining if probable cause to arrest exists, meaning, the court will examine all the surrounding circumstances. An examination of existing case law in North Carolina suggests that the odor of alcohol on someone’s breath without more is not enough to justify an arrest.
In Atkins v. Moye, 277 N.C. 179 (1970), the court held that an odor of alcohol on a driver’s breath is evidence of drinking , however this alone is not enough to support finding he is under the influence of an intoxicant. The court further went on to state that if this was to be considered in connection with faulty driving or any other conduct to suggest impairment then that would be enough to show a violation. In a more recent case, State v. Rogers, 124 N.C. App. 364 (1996), a state trooper detected a strong odor of alcohol coming from the driver and after speaking with him administered an Alco-sensor test which revealed a BAC of .13. The court held under these circumstances there was sufficient probable cause to arrest because unlike Atkins the trooper had the results of the Alco-sensor test in conjunction with the odor of alcohol.
If you should find yourself in a situation where you have been charged with a DWI you need to contact an attorney who has the experience and knowledge necessary to handle your case with the care it deserves. We defend DWIs and DUIs in Charlotte, Mecklenburg County, Pineville, Cornelius, Huntersville, Lake Norman, Pineville, Matthews, Mint Hill, and UNCC. For a private, confidential consultation with one of our experienced DWI lawyers, please call 704-499-9000 or toll-free 877-374-5999 even on weekends or holidays.