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While North Carolina’s DWI statute is quite harsh for drivers in Raleigh and statewide, there is a limit to the State’s ability to prosecute individuals on weak evidence of impairment by alcohol.  Specifically, an officer smelling alcohol on a driver’s breath, by itself, is not enough to support a finding of impairment.

In a civil case, Atkins v. Moye, 176 S.E.2d 789 (1970), the North Carolina Court of Appeals held as follows:

An odor of alcohol on the breath of the driver of an automobile is evidence that he has been drinking. However, an odor, standing alone, is no evidence that he is under the influence of an intoxicant, and the mere fact that one has had a drink will not support such a finding. Notwithstanding, the `[f]act that a motorist has been drinking, when considered in connection with faulty driving * * * or other conduct indicating an impairment of physical or mental faculties, is sufficient prima facie to show a violation of G.S. § 20-138.’

After all, it is not illegal to drink and drive in North Carolina.  It is only illegal to drive while impaired, and it is the State’s burden to prove each element of the offense beyond a reasonable doubt.

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Ben is an experienced trial lawyer who earned his law degree from The George Washington University in Washington, D.C. He was trained in trial practice at the nation’s preeminent Public Defender agency, the federally funded Public Defender Service for the District of Columbia, described by United States Attorney General Eric Holder as “the best public defender office in the country.”

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