DWI / DUI Impaired Driving FAQs

Each state has their own impaired driving laws. There are several different ways of referring to impaired driving and the DWI laws.

The general public commonly refers to impaired driving charges as "drunk driving" or "drunken driving." What impaired driving is called is to some extent a matter of semantics. Put simply, it is illegal to operate a vehicle while impaired, intoxicated, or subject to an impairing substance or "alcohol impaired."

You personally may have always heard it referred to as DWI Driving While Impaired or Driving While Intoxicated. Indeed, NC DWI charges were for a long time called, DUI or Driving Under the Influence. That was until the NC DWI laws changed, to include a broader description of the criminal offense.

Sometimes people still use the term "DUI" for Driving Under the Influence, "OUI" for Operating Under the Influence of an Impairing Substance or Intoxication, or "OWI" for Operating While Impaired or Intoxicated. Again, each state is different.

In North Carolina, DWI charges stand for Driving While Impaired, due to alcohol or other legal or illegal impairing substances such as marijuana, benzodiazepines, cocaine, etc. The NC DWI laws are specifically set forth in N.C.G.S. 20-138.1 .

In South Carolina, DUI charges refer to Driving Under the Influence. Some states even have "lesser included" criminal charges like "wet reckless" or a version of impaired reckless driving.**

This is a commonly confused legal issue in the criminal justice system. That is largely due to a misunderstanding of impairment, the DWI laws, and what that all means. It also is to some extent a misstatement of the criminal laws and what in fact is legal and illegal.

It is very important to recognize DWI charges (and DWI convictions) or DUI charges / DUI convictions, depending on the particular state's DWI laws, do not demand a certain over/under reading.

The DWI laws are written in a way to provide the Judge or in some instances the Jury (the Finder of Fact) different options. While a number or "BAC" may be important, it rarely is the sole basis for criminal charges or allegations of impaired driving.

That's because there is more than one way to be "impaired." It does not always require alcohol or the consumption of alcoholic beverages. Indeed, you do need to be "drunk" or "drunk driving" or "drunken driving" to be charged or convicted of "impaired driving."

That sometimes results in an over-reliance on the importance (or non-importance) of BAC in DWI cases.

In every state in the nation, the “legal limit” for Driving Under the Influence of alcohol is technically .079. A BAC Blood Alcohol Concentration (or Content) or BrAC Breath Alcohol Concentration (or Content) of 0.08 is said to be, “legally sufficient” for a jury to convict someone accused of DWI.

But, a jury is not required to convict solely on a numerical figure, BAC, breath reading, or blood result. The so called “per se” limit is a misnomer.

It is important to note that breath results relating to BAC or BrAC, or blood testing for DWI cases, are not the only methods for testing the concentration of substances. Urine tests are allowed in many states, including under the North Carolina DWI laws.

Juries can convict with a BAC of less than 0.08. Juries can also acquit people accused of driving while impaired with a BAC or blood result of 0.08 or more.

To make a blanket statement that juries must convict you for impaired driving, based solely on the numerical reading, BAC, breath or DWI blood tests, exposes a fundamental misunderstanding of the DWI laws.

As a fundamental aspect of our Constitutional Rights, including the Right to a Jury of your peers and Jury Trial, it has always been up to the jury to determine what to believe or what not to believe.

Juries, as the Finder of Fact, are charged with the duty to determine what weight to give any piece of evidence or not give a piece of evidence at trial. . .including whether to believe the results printed out on a "breathalyzer," Intoxilyzer, Intoximeter, Datamaster DMT machine in South Carolina, or other DWI breath test machine.

If that were not the case, we would not need judges or juries to determine guilt or innocence. People accused of DWI charges would be convicted in the breath testing room without a trial.

Normally, driving while impaired or DWI charges are misdemeanor criminal charges. There are important exceptions and legal considerations.

Impaired driving charges (DWI) can be felony criminal charges. That normally would be related to something called "Habitual Impaired Driving." Of important note, there actually is something referred to as "Habitual Habitual" criminal charges, where the Felony DWI charges in NC (Habitual Driving While Impaired NCGA 20-138.5) is the predicate felony offense for Habitual Felony Charges in North Carolina under NCGS 14-7.1.

The NC DWI laws require, under NCGS 20-138.5, three prior criminal convictions of "impaired driving." Those offenses may include:

• Driving While Impaired (DWI) under NCGS 20-138.1 or
• Felony DWI or Habitual Driving While Impaired in North Carolina under NCGS 20-138.5 or
• Driving While Impaired in a Commercial Vehicle under NCGS 20-138.2 or
• Serious Injury by vehicle or Death, due to impaired driving, under NCGS 20-141.4 or
• Murder, due to Impaired Driving, under NCGS 14-17 or
• Involuntary manslaughter, due to impaired driving, under NCGS 14-18 or
• "Substantially similar" criminal offenses (criminal convictions) in other jurisdictions