Driving While Impaired Defense

Operating a motor vehicle while impaired is a serious offense and could carry significant consequences, including jail time. Hastings Law & Counsel can represent you with all of your rights in mind to get you back on the road and safely driving again after the charge. You have several pre-trial options available that can limit the burden a DWI charge can impose. Attorney Hastings will leave no stone unturned when evaluating the options in your defense. 

1. N.C.G.S. § 20-138.1

N.C.G.S. § 20-138.1 provides that "A person commits the offense of driving while impaired if he or she drives a vehicle upon any highway, or any public vehicular area within this State: (1) while under the influence of an impairing substance; or (2) after having consumed sufficient alcohol that he has, at any relevant time after the driving, an alcohol concentration of 0.08 or more; or (3) 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.


The State must prove each element of the offense beyond a reasonable doubt starting from the presumption that Defendant is innocent of all elements. Prosecution must therefore prove that you were actually driving during the time of impairment. Importantly, it's not enough for the Defendant to admit to driving; rather, the State must present corroborating evidence that supports the underlying facts of the conviction.

"A Vehicle"

The State must also prove that the Defendant was driving a vehicle. While in North Carolina a horse does not satisfy this burden, it's important to note that a bicycle does satisfy the burden, as does a lawnmower.

"In a Public Vehicular Area"

  1. Any road used for public vehicular traffic, such as roads and streets.
  2. Parking lots of any public or private hospital, college, university, school, orphanage, church, or any of the institutions, parks or other facilities maintained and supported by the State of North Carolina or any of its subdivisions.
  3. Any service station, drive-in theater, supermarket, store, restaurant, or office building, or any other business, residential, or municipal establishment providing parking space whether the business or establishment is open or closed. 
  4. The area is a beach area used by the public for vehicular traffic.
  5. The area is a road used by the public within or leading to a gated or non-gated subdivision or community, whether or not the subdivision or community roads have been offered for dedication to the public.
  6. The area is a portion of private property used by vehicular traffic and designated by the private property owner as a public vehicular area in accordance with G.S. § 20-219.4.


Police must be able to justify its suspicions for when it investigates you for driving while impaired with adequate reasons tailored to your specific conduct in line with how a reasonable officer would likewise perceive the incident. If police breach that requirement, it violates your 4th Amendment and parallel state constitutional rights that protect you from unreasonable searches and seizures. That is such an important right that police action unfaithful to its aim leaves the court with no option but to dismiss the charges against you. Attorney Hastings is well-versed in such matters, and has litigated the right to privacy grounded in the 4th Amendment at the district, superior, and appellate court levels. Police will often ask for consent to search you or your property. This waives your right to privacy from the government's search and seizure. Consent must be freely and intelligently provided, but these are not always strict standards. Nevertheless, police must hold a reasonable belief that the person from who it obtained consent had the authority to permit the search. If you feel like police violated your personal privacy rights, please give us a call at 919-619-1152 and we can happily discuss what options you may have.

The blow and the .08 bright line

It's become common lingo to say things like - he blew an 09. This refers to the blood to alcohol concentration in your blood stream when you are tested at the police station. The exact results of the breath test during the stop, should one have occurred, is not admissible in our courts. In North Carolina, you are too impaired to lawfully operate a motor vehicle if your blood to alcohol concentration is above .07, or above 7% alcohol in your blood. The science behind this is not nearly as precise as the bright line requires, and Attorney Hastings has experience developing defenses to that effect. In "low blow" cases (.08,.09), he knows how to help clients secure favorable outcomes, including the minimal possible punishment available for a conviction should one occur. Good laws should enable people to conform their behavior to the standards therewith. It can be difficult to adjust your behavior to a measurement so unpredictable and fraught with the possibility for manipulation. With that in mind, we can work with prosecutors to reach an outcome that recognizes the potential for unfairness that results when convictions are possible for hardly distinguishable reasons.

Limited driving privileges before & after trial

Attorney Hastings can help you obtain a limited driving privilege prior to trial should you qualify and afterwards should the charge result in a conviction. This will allow you to continue driving for the necessary things in your life, like work (even at non-standard work hours), home (picking the kids up from school), and school, as well as for attending drug and alcohol programs that enable you to better understand the effect alcohol can have on your mental facilities. Attorney Hastings understands how reliant you might be on a car for daily transportation. This concern is not lost on him as he goes through your representation.

Sentencing factors and license restoration

Sometimes a case won't have triable issues involved. It may be most prudent to plead the charge in exchange for a deal with the assistant district attorney to drop related charges from the same incident. In those cases, the important part about representation will be sentencing. There are 5 levels to sentencing for a driving while impaired conviction, and Attorney Hastings has experience before several courts in North Carolina in securing the minimal punishment possible for his clients. The UNC School of Government compiled many of their posts on the subject into this document and it explains in detail how courts interpret North Carolina sentencing guidelines. 

Pre and Post Trial Resources

1. Substance Abuse Assessments and Treatment Programs

2. DL-123 Proof of Insurance

In order to obtain a limited driving privilege prior to your court date or for when you qualify to obtain one during your sentence, you will need to provide a DL-123 form from your insurance provider that proves your car insurance is up to date. It sounds harder than it is, and insurance companies routinely fill them out.

For an example, here is a sample DL-123 form that your agent can fax over with little trouble.

3. Letter from employer for non-standard work requirements.

If you wish to obtain a limited driving privilege that permits you to drive during non-standard work hours, you will also need to provide signed documentation to that effect. 

4. MADD Victim Impact Panels

Courts sometimes require defendants to attend MADD Victim impact panels. Even if not required, it can also be a good way to understand how detrimental to society driving while impaired can be. Chapel Hill and Durham both put on excellent programs that don't require pre-registration.

For more information, please click here.

Call 919-619-1152. We listen first & talk second.