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DRUGGED DRIVING IN NORTH CAROLINA

Drugged Driving – or Drug DWI – is a form of “Impaired Driving,” under N.C.G.S. 20-138.1. This is the same law that the State uses to convict drunk drivers. In other words, the same law governs drunk driving and drugged driving. But, operating under the influence of drugs, and operating under the influence of alcohol, are two very different things.

Remember, it’s not illegal to have a drink and drive; it is illegal to be drunk and drive. North Carolina’s current laws leave little to no room for the recreational marijuana user who, after after hitting his vape pen, gets behind the wheel.

Driving under the influence of drugs, even doctor prescribed medication, is one of those areas where the law just hasn’t kept up with the reality. Police officers and departments do a great job of catching drunk drivers: they have been trained on what signs to look for, and how to determine whether a driver is too drunk to be behind the wheel.

Police are not however, always adequately trained or given the proper resources to determine whether someone is driving high. Drugged Driving is difficult to prove, especially if the police do not get a chemical test. Moreover, a special type of police officer, known as a Drug Recognition Expert (DRE) is generally needed to assess and render a professional opinion as to whether a driver is impaired by drugs.

N.C.G.S. 20-138.1 NORTH CAROLINA’S IMPAIRED DRIVING LAW

As usual, let’s start by reading the statute, N.C.G.S. 20-138.1. The burden is on the State to prove each of the following elements beyond a reasonable doubt:

  • That the Defendant drove; (and)
  • A vehicle; (and)
  • Upon a street, highway, or public vehicular area; (and)
    • With any amount of a Schedule I controlled substance, as listed in G.S. 90-89, or its metabolites in his blood or urine.
    • While under the influence of an impairing substance; or
    • After having consumed sufficient alcohol that he has, at any relevant time after the driving, an alcohol concentration of 0.08 or more; or

The results of a chemical analysis shall be deemed sufficient evidence to prove a person’s alcohol concentration. The State must prove elements A, and B, and C all beyond a reasonable doubt, and must also prove ONE of the bullet points. In the business, we call these bullet points “Prongs.”

SUBSTANTIAL IMPAIRMENT (PRONG 1)

A lot of clients believe that if they don’t blow, the State won’t have a case. That is totally and completely wrong. I know what you want to ask me: “Derek, if I get stopped, do I blow or not?” Short answer: it’s complicated. But, I absolutely promise that throughout these posts, I will teach you everything I know about handling a DWI traffic stop. And, “everything that I know” may just come in helpful for you one day.

A chemical analysis is a test of a person’s breath, blood or other bodily fluid…to determine the person’s alcohol concentration or presence of an impairing substance. N.C.G.S. 20-4.01(3a). Generally, a person has the right to refuse chemical testing, but if you do so in North Carolina, your driver license will be revoked immediately for one year.

Without a chemical test, the State will prosecute a Drugged Driving case under the “Substantial Impairment” theory (AKA: Prong 1), which states: “while under the influence of an impairing substance”. To find the defendant guilty, the State does not need to provide the results of a chemical test, field sobriety tests, or other “reliable” impairment evidence. Prong 1 is intentionally vague. Without the results of a chemical test, proving impairment beyond a reasonable doubt can be difficult for the State.

Under Prong 1 Drugged Driving prosecutions, the State will submit other evidence of impairment, such as: the driver caused an accident, was speeding, driving too slowly, swerving, admitted to drug use, hostile/violent behavior, pinpoint pupils; I could go on and on ad infinitum.

A very hot topic in Drugged Driving litigation right now is whether the results of Standardized Field Sobriety Tests (SFST’s) should be admissible in court to show that defendant was operating under the influence of drugs. I believe that NHTSA developed SFST’s to detect alcohol impairment, not drug impairment, and that SFST’s are irrelevant in Drugged Driving cases. Moreover, the Massachusetts Supreme Court agrees with me, see Commonwealth v. Gerhardt, 477 Mass. 775 (2017).

SCHEDULE 1 CONTROLLED SUBSTANCE (PRONG 3)

If the State does possess the results of a chemical analysis, and the test shows positive for a Schedule 1 drug, defendant will be prosecuted under Prong 3. Here, defendant is guilty of Impaired Driving if he operates a vehicle, on a street, highway, or PVA, “with any amount of a Schedule I controlled substance, as listed in G.S. 90-89, or its metabolites in his blood or urine.” N.C.G.S. 20-183.1(a)(3).

What drugs are classified as Schedule 1? For a fully itemized link, click here. If you’d rather not comb through a medical textbook disguised in legalese, let me break it down for you: almost all opiates, fentanyl, codeine, heroin, morphine, MDMA, mescaline, peyote, psilocybin, and any type of synthetic cannabinoid.

The easiest way for the State to prove impairment is by introducing the results of a chemical test at trial. This is especially true in drunk driving, breath-test cases. These test results are admissible in court without the legal foundation necessary concerning introduction of other types of scientific evidence. N.C.G.S. 20-139.1(a) provides that, in an implied consent case, “a person’s alcohol concentration or the presence of any other impairing substance in the person’s body as shown by a chemical analysis is admissible in evidence,” as long as the test was carried out in accordance with the other provisions of N.C.G.S. 20-139.1.

ARE THERE A LOT OF PEOPLE DRIVING AROUND HIGH?

Short answer: yes.

Between 2013 and 2014, the National Highway Traffic Safety Administration (NHTSA) conducted the National Roadside Survey of Alcohol and Drug Use by Drivers. The test was entirely voluntary, and anonymous. NHTSA had conducted similar tests in the early 1970’s and early 1990’s. Those results were recorded, studied, and compared. The 2013-2014 National Roadside Study of Alcohol and Drug Use by Drivers Study found a significant decreasing trend in alcohol use from the first study in 1973. During weekend, nighttime driving, when the most drunk drivers are on the road, only 8.3% of drivers tested alcohol positive, with only 1.5% having a blood alcohol content (BAC) greater than .08.

The same study (Drug Results) also tested drug presence through voluntary blood tests. While the mere presence of drugs in a driver’s bloodstream does not necessarily indicate impairment, the results are nonetheless surprisingly high.

In the 2013-2014 study, NHTSA found that 22.5% of weekend, nighttime drivers tested positive for drugs in their bloodstream. More than 1 out of every 5 drivers on the road tested positive for drugs! And remember, those were just the people that consented to a voluntary government blood draw! The morning commute isn’t much better: during weekdays, between 9:00 am and 5:00 pm, 19% of all drivers tested positive for drugs.

Results of the NHTSA studies tend to show that although drunk driving is trending down, drugged driving is rising fast!

SUMMARY

To be found guilty of Driving While Impaired in North Carolina, the State must prove three things beyond a reasonable doubt:

That defendant was driving, a vehicle, upon a street, highway, or public vehicular area (PVA), plus either Prong 1 (Substantial Impairment), Prong 2 (BAC >.08), or Prong 3 (Schedule 1 Drug). If the State has the results of a chemical test, they will proceed under Prong 2 in Drunk Driving cases, and Prong 3 in Drugged Driving cases. Without a chemical test (or if defense counsel can suppress the chemical test), the State must proceed under Prong 1, the hardest for the State to prove.

In our next post, we will begin breaking down the statute itself and defining its key terms.


IF YOU HAVE BEEN CHARGED WITH DRUGGED DRIVING, CALL FLETCHER LEGAL NOW FOR A FREE CONSULTATION.


DRIVING WHILE IMPAIRED – DEFINING “Street,” “Highway,” and “Public Vehicular Area.”

As always, we begin our analysis by reviewing the relevant law, N.C.G.S. 20-138.1:

“A person commits the offense of Impaired Driving if he drives any vehicle upon any highway, any street, or any public vehicular area within this state:

· While under the influence of an impairing substance; or

· After having consumed sufficient alcohol that he has, at any relevant time after the driving, an alcohol concentration of .08 or more. The results of a chemical analysis shall be deemed sufficient evidence to prove a person’s alcohol concentration; or

· With any amount of a Schedule I controlled substance, as listed in N.C.G.S. 90-89, or its metabolites in his blood or urine.” N.C.G.S. 20-138.1.

First, let’s examine the introductory paragraph of this statute. Virtually every word of this statute has been litigated and decided by North Carolina Appellate Courts, starting with the word “Driving.”

DEFINING THE MEANING OF “DRIVING”

The term “driver” is defined at N.C.G.S. 20-4.01(7) as being synonymous with the term “operator,” defined in N.C.G.S. 20.4.01(25). Both words (and similiar words, such as drive, driving, operate, operating) share the same meaning. An operator is “[a] person in actual physical control of a vehicle which is in motion or which has the engine running.”

Defendant’s purpose for taking physical control of the vehicle is irrelevant when considering whether defendant was driving. For crimes where driving is an essential element of the offense, the State does not need to establish that the vehicle was in motion with defendant behind the wheel, or that defendant started the car for purposes of driving it.

In State v. Fields, 77 N.C. App. 404 (1985), a police officer came upon a vehicle sitting in the right hand lane of the road. The vehicle was motionless, and defendant was seated behind the wheel. The vehicle’s owner was seated on the passenger side. Both defendant and passenger testified at trial that the passenger had been driving, and stopped the vehicle on the street so that they could use the bathroom. Defendant got back into the driver’s seat of the car and started it because he was cold. The Court of Appeals found that this constituted sufficient evidence of driving in defendant’s DWI prosecution.

DRIVING CAN BE ESTABLISHED BY CIRCUMSTANTIAL RATHER THAN DIRECT EVIDENCE

In State v. Dula, 77 N.C. App. 473 (1985), the Court found sufficient evidence to justify the inference that defendant was driving where the driver of another car saw black tire marks on the highway, dust in the air, and a car, with its headlights on, lying on its top in a field near a highway. The driver of the other car stopped at the scene, and found defendant in the overturned car, the doors of which were closed, and the windows rolled up. He did not notice anyone else in the area. The investigating officer saw tire marks leading from the black marks on the highway across from the highway shoulder and into the field where the overturned car was located. The officer could not open the car doors. At trial, the defendant called a witness who testified that he (the witness) had in fact been driving the car, but fled the scene before police arrived. This testimony did not render the state’s evidence insufficient.

In State v. Riddle, 56 N.C. App. 701 (1982), the court allowed the case to proceed to the jury where the defendant was seen getting out of the car immediately after the collision, and no one else was seen in or near the car. Defendant said that his friend has been driving and left the scene of the accident, fleeing through the woods. A witness and law enforcement officer checked the woods, and discovered no evidence to support defendant’s claim. When the wrecker arrived, defendant pulled the keys to the car out of his pocket and handed them to the wrecker driver.

Contrast Dula and Riddle with State v. Ray, 54 N.C. App. 701 (1982), where the court found insufficient evidence to support an Impaired Driving charge where the only evidence that defendant was driving was that he was sitting “halfway [in] the front seat.” Id. at 475. In Ray, an officer responded to an accident call, and saw the defendant seated in a car that had hit two parked cars. There was no evidence that the car had been operated recently, or that the motor was running.

SUMMARY

N.C.G.S. 20-138.1 prohibits Impaired Driving in North Carolina, including both Drugged Driving and Drunk Driving. To be found guilty, the State must prove beyond a reasonable doubt that defendant was “driving.” The State does not need to prove that defendant’s vehicle was in motion with defendant behind the wheel, or that defendant started the car for purposes of driving it. Case law has held defendants were driving where their vehicles were parked, stationary, crashed, defendant was out of the vehicle, and even where another witness testified in court that he (and not defendant) was actually driving.

In our next post, we will continue breaking down the North Carolina Impaired Driving statute, and finish defining some of its key terms.


IF YOU HAVE BEEN CHARGED WITH DRUGGED DRIVING, CALL FLETCHER LEGAL NOW FOR A FREE CONSULTATION.

DON’T WASTE ANYMORE TIME – THE STATE HAS BEEN GATHERING EVIDENCE! IT’S TIME TO BUILD YOUR DEFENSE!



CAN YOU BE CHARGED WITH DWI RIDING AN ELECTRIC SCOOTER? Defining “Vehicle”

In our last post, we discussed North Carolina’s DWI statute, N.C.G.S. 20-138.1, and began breaking down a few of its key terms, particularly what it means to “drive.” This week, we take an in-depth look at the word “vehicle,” to try and determine whether a person can be charged with DWI for having a few too many and hopping on one of the million electric scooters you find scattered downtown.

As usual, let’s begin by reviewing the relevant law, N.C.G.S. 20-138.1:

“A person commits the offense of Impaired Driving if he drives any vehicle upon any highway, any street, or any public vehicular area within this state….”

Because DWI cases in North Carolina have been so heavily litigated, virtually every word of this statute has been ruled on and defined by North Carolina Appellate Courts. The word “Vehicle” is no exception.

WHAT CONSTITUTES A “VEHICLE” FOR AN IMPAIRED DRIVING CHARGE

The term “vehicle” is defined at N.C.G.S. 20-4.01(49) as:

“Vehicle. – Every device in, upon, or by which any person or property is or may be transported or drawn upon a highway, excepting devices moved by human power or used exclusively upon fixed rails or tracks; provided, that for the purposes of this Chapter bicycles and electric assisted bicycles shall be deemed vehicles and every rider of a bicycle or an electric assisted bicycle upon a highway shall be subject to the provisions of this Chapter applicable to the driver of a vehicle except those which by their nature can have no application. This term shall not include a device which is designed for and intended to be used as a means of transportation for a person with a mobility impairment, or who uses the device for mobility enhancement, is suitable for use both inside and outside a building, including on sidewalks, and is limited by design to 15 miles per hour when the device is being operated by a person with a mobility impairment, or who uses the device for mobility enhancement. This term shall not include an electric personal assistive mobility device as defined in subdivision (7b) of this section. Unless the context requires otherwise, and except as provided under G.S. 20-109.2, 47-20.6, or 47-20.7, a manufactured home shall be deemed a vehicle. “

The North Carolina Court of Appeals, as well as the North Carolina Supreme Court have had to work through this complex, confusing statute over time as technology has advanced, leading to some interesting legal holdings:

  • Lewis v. Watson, 229 N.C. 20 (1948), held that a handcart, “moved solely by human power,” did not constitute a vehicle.
  • State v. Green, 251 N.C. 141 (1959), held that a farm tractor was sufficient to support a DWI conviction.
  • State v. Dellinger, 73 N.C. App. 685 (1985), held that a horse was sufficient to support a DWI conviction. After this case, the General Assembly amended the statute to specifically exclude horses from the definition of “vehicle.”
  • State v. Crow, 175 N.C. App. 119 (2005), held that a stand-up scooter with an electric motor (described as “a skateboard with handlebars on the front”) was sufficient to support a DWI conviction.

STATE v. CROW

Crow, the most recent decision, is also the most interesting. In May, 2003, Officer Shane Bryan was traveling south in a marked patrol car on Ocracoke Island when he observed defendant and another person run a stop sign on their stand-up scooters. Both scooters were powered by electric motors, and described as basically skateboards with handlebars. Each scooter had two wheels, approximately six to eight inches in diameter, and arranged in tandem much like the wheels of a bicycle. Officer Bryan approximated their speed at 10 miles per hour.

After running the stop sign, defendant and the other person were observed weaving erratically within their lane of traffic. Officer Bryan followed them for about a block and half, then used his patrol car’s public address system to order the two to pull over. The other person immediately complied, but defendant ignored the order and kept riding. Officer Bryan, after pursuing defendant another six blocks, followed defendant into a parking lot where he stopped his scooter.

Upon speaking with defendant, Officer Bryan noticed a strong odor of alcohol, in addition to glassy, bloodshot eyes, slurred speech, and being unsteady on his feet. Officer Bryan asked defendant to submit to Standardized Field Sobriety Tests (SFST’s), to which defendant refused. Officer Bryan called for backup, and the two officers took defendant into custody.

After refusing to submit to an alcosensor test (also called a “portable breath test” or “PBT”), defendant was taken to jail where he agreed to submit to an Intoxilyzer 5000 test, which reported a BAC of .13. Defendant was charged with Driving While Impaired, found guilty by a jury, and sentenced to 12 months of supervised probation, including 14 days jail time, plus costs.

WAS CROW’S “SKATEBOARD WITH HANDLES” A VEHICLE?

On appeal, defendant’s primary contention was that the trial court erred by not dismissing his case based on insufficient evidence of a violation of N.C.G.S. 20-138.1. Defendant claimed that because the motorized scooter he was riding could not be considered a “vehicle” within the meaning of the statute, the trial court should have dismissed his case.

The Court began by looking at the plain words of the statute: if the language of a statute is clear, then the Court must implement the statute according to the plain meaning of the terms. Correll v. Division of Social Services, 332 N.C. 141 (1992).

The Court found that the scooter was not a horse, bicycle, or lawnmower (devices specifically excluded by statute at that time), and that the scooter therefore met the definition of “a device in, upon, or by which any person or property is or may be transported or drawn upon a highway,” under N.C.G.S 20-4.01(49). Further, the scooter was not “designed for and intended to be used as a means of transportation for a person with a mobility impairment, or who uses the device for mobility enhancement.” Defendant appeared to be a healthy 25-year-old having too much fun on summer break.

On appeal, defendant asked that the Court construe the term “mobility enhancement” broadly; judges declined based on the terms proximity to “mobility impairment,” and because defendant was using the scooter strictly for recreational purposes. And, although N.C.G.S. 20-4.01(49) specifically excludes “electric personal assistive mobility devices” from the definition of “vehicle,” his scooter did not meet the technical requirements to be classified as such.

WHAT IS AN ELECTRIC PERSONAL ASSISTIVE MOBILITY DEVICE?

Short answer: a Segway.

Longer answer: an “electric personal assistive mobility device” is “[a] self-balancing nontandem two-wheeled device, designed to transport one person, with a propulsion system that limits the maximum speed of the device to 15 miles per hour or less.” N.C.G.S. 20-4.01(7b). In the case before them, defendant’s scooter was not self-balancing, and his wheels were in tandem; his appeal thus failed, and his conviction affirmed.

SO, CAN YOU CATCH A DWI ON A MOTORIZED SCOOTER?

Short answer: I’m not absolutely certain, but I wouldn’t risk it…

Long answer: I began by doing a bit of legal magic. Remember that long paragraph you skipped over at the top of this post defining the word “vehicle?” I translated it from legalese to English (which took me a lot longer than you may think), and here is how it broke down:

A vehicle is defined as:

Every device by which any person or property may be transported, except:
A. devices moved by human power, and
B. devices used exclusively upon fixed rails or tracks.

Bicycles and electric assisted bicycles are vehicles; their riders subject to the same laws as vehicle drivers.

The term “vehicle” excludes:
A. a device which is designed for, and
B. intended to be used as a means of transportation;
i. for a person with a mobility impairment, or
ii. for a person who uses the device for mobility enhancement, and
C. the device is suitable for use both inside and outside a building,
D. the device is suitable for use on sidewalks, and
E. the device is limited by design to 15 miles per hour.

Electric Personal Assistive Mobility Devices are not vehicles and must be:

  1. Self-balancing;
  2. Non-tandem;
  3. Two-wheeled device;
  4. Designed to transport one person; and
  5. With a propulsion system that limits its max speed to 15 mph.

ANSWER THE QUESTION, LAWYER! CAN YOU CATCH A DWI ON A MOTORIZED SCOOTER?

In my professional opinion, and choosing to err on the side of caution, I believe that driving impaired on a motorized scooter could support a DWI charge. First, motorized scooters are not EPAM devices because they are tandem and not self-balancing. Second, the statute specifically says that electric assisted bicycles are vehicles – I think that’s exactly what a motorized scooter is. The statute, even after translating it to English, is ambiguous concerning “mobility enhancement.”

So, in North Carolina, if you’re absolutely hammered, try and find a Segway instead of an electric scooter; it might just save you a DWI charge!

In our next post, we will finish breaking down the North Carolina Impaired Driving statute, and wrap-up defining the last of its key terms.


IF YOU HAVE BEEN CHARGED WITH DRUGGED DRIVING, CALL FLETCHER LEGAL NOW FOR A FREE CONSULTATION.

DON’T WASTE ANYMORE TIME – THE STATE HAS BEEN GATHERING EVIDENCE! IT’S TIME TO BUILD YOUR DEFENSE!