Appreciable Impairment     

Today’s blog will attempt to explain the significance of ‘Appreciable Impairment’ as it pertains to North Carolina’s DWI Law.  DWI’s are the most litigated crime in North Carolina, and there are many different facets that create challenges for both the State and the Defense.  However, when dealing with Appreciable Impairment, it’s hard to understate how complicated this argument can be.


Let’s start with what Appreciable Impairment is, and why it is in the statute.  Typically during trial, Appreciable Impairment is defined as a Driver’s “mental and/or physical faculties being appreciable impaired by an impairing substance.”  I know, it’s not helpful to have the term used in it’s definition.  Basically, it is where someone’s mental and/or physical functions are impacted by an impairing substance, and the impact is ‘appreciable’ meaning more then a little bit, noticeable.  Now, Appreciable Impairment is a part of the DWI statute because individuals can be impaired on substances other then alcohol.  You see, with alcohol, we have a standard threshold of .08 grams of alcohol per 210 ml of breath sampled that the laws says, if that threshold is met or exceeded, you can be found guilty of a DWI (in fact, that is a whole other bag of headaches dealing with the inherent burden shifting to Defense with a threshold that creates a ‘prima facia’ case of guilt based on a number, but that’s a blog for another day).  But, when we have substances other then alcohol, how do we determine whether the individual is actually impaired or not?

Well, first, it’s important to note, while there are blood tests available that can test the levels of impairing substances in someone’s system, they can be hard to quantify due to the rate at which it dissipates in any individuals’ systems as well as the fact the law doesn’t have any other ‘thresholds’ like they do for alcohol. Therefore, currently, North Carolina typically only tests for the presenceof an impairing substance, and not the actual amount in the individual’s blood.    Additionally, if an individual is impaired on alcohol, and either is unable to or refuses to provide a breath sample and a blood sample isn’t taken the State is left trying to prove appreciable impairment since there is no number to present as evidence of meeting or exceeding the .08 threshold.


So, that leaves us with ‘Appreciable Impairment,’ which begs the next question, how does the court make the determination that someone is appreciable impaired?  Because appreciable impairment is so subjective, it is up to the State to demonstrate an individuals conduct during the investigation rises to the level to meet the State’s burden of proof at that point of the trial.  The State will present evidence of the Driver’s conduct, both before the stop and after.  From traffic violations like Failure to Maintain Lane Control or running a red light, to how the individual responds to the blue lights when pulling over.  The court will hear about how the individual responds to officer’s questions, how they exited the vehicle.  Did they sway while standing, or have trouble walking. Were their eyes red and glassy or was their speech slurred.  Was there an odor of alcohol?  They will also discuss their performance on the various Standard Field Sobriety Tests they conduct as well as whether a Portable Breath Test was given, and if so, was it positive for the presence of alcohol (in NC, they cannot testify to the number that machine produces).  Obviously, there are many things the State may point to that could, or could not actually be the result of an individual being appreciable impaired.


Two final points about appreciable impairment.  First, one way to challenge a DWI is to argue the Officer lacked Probable Causeto arrest an individual, it’s important to not consent to any part of the investigation you do not have to in order to limit the State’s evidence of appreciable impairment.  You see, for Probable Cause, the State hasto prove you were appreciably impaired at the point you were arrested as the number you may ultimately blow is not admissible at this point in the trial.  So, please remember, you are not required to perform any Field Sobriety Tests, blow into a Portable (i.e. roadside) Breath Test or answer any question. You are only required to produce your license and registration and exit the vehicle if requested.  Additionally, if you are potentially impaired on something other then alcohol (and this can include lawfully prescribed and consumed prescriptions) and/or the substance is alcohol and the State doesn’t get a blood or breath result, then the State is again left arguing appreciable impairment and anything you do to limit potential evidence of that only benefits you.


Second, many attorneys get hung up on the ‘mental and/or physical faculties’ part of the Statute and forget to challenge whether the State has proven that the ‘appreciable impairment’ is actually the result of an impairment substance, and even if it is, that the State can prove what that impairing substance is.  I don’t care if you are falling all over your self, if the State can not prove that what the officer saw was the result of an impairing substance (instead of, for example, a medical condition or reaction) AND what that impairing substance is, then the State cannot meet their Burden of Proof.



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