Many North Carolina residents are under the misconception that they cannot be charged with DWI if their blood alcohol content (BAC) is less than 0.08 percent. However, this is not true in our state.

Blood Alcohol Content Keyboard ButtonIn addition, you could face the same harsh punishments if you are convicted of DWI when your BAC is less than 0.08 percent as you would face if it is over this amount. However, you may have strong defenses that you can use to fight the charges so that they are dismissed or reduced to a less serious offense in a plea agreement with the prosecutor.

When Can You Be Charged With DWI If Your BAC Was Less Than 0.08 Percent?

Under N.C.G.S. 20-138.1, it is against the law to drive a motor vehicle on a street, highway, or other public place while you are intoxicated. One way to violate this law is to drive with a BAC of 0.08 percent or higher. However, a person can also be charged with DWI when their BAC is less than 0.08 percent in the following situations:

  • Impairment. An individual can be arrested for DWI if they are driving under the influence of an impairing substance.
  • Controlled substance. DWI can be charged when there is any amount of a controlled substance, such as marijuana, cocaine, or heroin, in their system.
  • Commercial drivers. Commercial drivers are held to a higher standard in North Carolina. They can be arrested for DWI if their blood alcohol content is 0.04 percent or higher.
  • Drivers under 21 years old. North Carolina has a zero-tolerance law for drivers who are under 21 years old. They could be convicted of DWI if they test positive for any amount of alcohol in their system.

When Can You Be Charged With Driving Under the Influence of an Impairing Substance?

If an individual’s BAC is less than 0.08 percent, the police may try to charge them with DWI for driving under the influence of an impairing substance. In order to be convicted, the prosecutor would need to prove that their physical and mental capacities were appreciably impaired because of the consumption of alcohol or other substances, such as methamphetamine, cocaine, or marijuana.

Proving a DWI case based on appreciable impairment will be heavily based on the testimony of the police officer who made the arrest. Here are ways that they may try to prove this:

  • Driving. One way to establish impairment is to show that the individual was driving unsafely. Speeding, weaving between lanes, crossing the center line, and driving too slowly may be evidence used by law enforcement officials.
  • Signs of intoxication. The officer could testify that they observed signs that the driver was intoxicated when they were pulled over. Signs of drunk or drugged driving include slurred speech, an odor of alcohol on the person’s breath, red or watery eyes, confusion, stumbling, or falling down.
  • Field sobriety test. If the individual agreed to take field sobriety tests, the officer could testify as to how they failed the tests to show that they were significantly impaired when driving.

Penalties for DWI When Your BAC Is Less Than 0.08 Percent

North Carolina uses a complicated sentencing system that takes into consideration a number of mitigating and aggravating factors, such as reckless driving, speeding at least 30 miles over the posted speed limit, and driving with a revoked license. This means that you can face a wide range of punishments when you are sentenced if you are convicted of DWI—even if your BAC is less than 0.08 percent. Here are a few of the punishments you could face:

  • Aggravated level one. If there are three or more grossly aggravating factors, you could be sentenced to a jail sentence of 12 to 36 months, a fine of up to $10,000, and probation after serving 120 days in jail.
  • Level one. If there are two grossly aggravating factors, you may have to serve 30 days to 24 months in jail and pay a fine not to exceed $4,000.
  • Level five. Level five is the least harsh level of punishment you could face. If your mitigating factors, such as having a clean driving record or a BAC of 0.09 percent or less, outweigh any grossly aggravating ones, you could be sentenced to 24 hours to 60 days in jail and a fine of $200.

If you were charged with DWI in Mecklenburg County, you need a skilled DWI attorney who will aggressively defend you. To learn how we can help you, call our Charlotte office to schedule your free, initial consultation.

Have You Been Arrested for a DWI in Charlotte, NC?

If you are facing DWI charges, you need to speak with an experienced criminal defense attorney as soon as possible. Please contact us online or call our Charlotte office directly at 980.207.3355 to schedule your free consultation.


Howard W. Long, II
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Charlotte Criminal Defense and DWI Lawyer