We recently had a Driving While Impaired case that dealt with the issue of probable cause. In the State of North Carolina, a police officer cannot make an arrest without first establishing probable cause. Probable cause for a DWI is based on the officer’s opinion that a defendant is appreciably impaired, or that his mental and/or physical faculties were impaired by an impairing substance, at the time they were operating a vehicle on a North Carolina Street, Highway or Public Vehicular Area. The Court decided that you don’t necessarily have to be a trained expert in order to determine whether someone is appreciably impaired or not. So in many ways, a lay person would be able to form the opinion that a person is intoxicated based upon their personal observations of the defendant. So when an officer is making the determination of appreciable impairment they will use their personal observations of the defendant and faulty driving or other evidence of impairment. For the purposes of this discussion, I would really like to dissect each of these elements because they may or may not be an issue that could arise in your case.
We previously mentioned that faulty driving was as one of the indicators of impairment along with the officer’s personal observations of the defendant. This becomes a very controversial issue when there is not a lot of evidence for impairment that the State of North Carolina can rely on to meet their burden of proof. Specifically because their is not clear cut definition of “faulty” driving. Common law has, in many cases, pointed to weaving, failing to maintain lane control, or reckless driving as indicators of faulty driving. But what about speeding? Speeding, without any other indicators of faulty driving, is not an indicator of impairment. In fact, the National Highway Traffic Safety Administration has specifically stated that speeding alone, is not an indicator of impairment. We argued in our case that traffic violations, such as speeding, should not be an indicator of impairment especially when there was no indication of braking erratically, weaving within the lane or abrupt lane changing taking place.
So when you look at the evidence in your case just remember, the Police Officer must form a probable cause in order to arrest. If the defendant refuses to perform field sobriety tests or a portable breath test, or answer any questions, it forces the officer to rely on his personal observations from his or her interaction with the defendant and the defendant’s driving. If speeding was the reason the officer made the stop, then there is less evidence of Appreciable Impairment for the State to use against you. There needs to be more sufficient evidence to withstand a motion challenging Probable Cause.