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DUI Arrests in North Carolina

In North Carolina, a driver may be arrested for impaired driving when the arresting officer has a reasonable suspicion or probable cause to believe that the driver is operating a motor vehicle under the influence of an impairing substance.   This suspicion must be based on a specific set of articulable facts observed by the officer during a lawful traffic stop.

Generally, reasonable suspicion will arise before probable cause.  Usually this involves the officer observing some sort of activity that leads the officer to believe that criminal activity is taking place, even if the observed activity is not illegal.  In a DUI context, this may include things such as weaving within a driver’s lane, driving well below the speed limit, or driving with the turn signal on when not turning or switching lanes.  While the NC Court of Appeals held in State v. Fields, 195 N.C. App. 740 (2009) that weaving within one’s lane is not enough, standing alone, to justify a stop, this type of observation coupled with one or more other observations would most likely give rise to reasonable suspicion.  Probable cause, in the NC DUI context, is generally present when the officer observes a driver actually breaking the law.  For example, the driver may have been recklessly, over the speed limit, or without lights at night.  This would allow the officer to stop the vehicle, and then he may have probable cause to believe the driver is guilty of a DUI based on observances made during the stop, such as slurred speech, the presence of empty containers in the vehicle, the results of an alcohol screening test, or statements made by the driver.

While this distinction still exists, the line between probable cause and reasonable suspicion has been somewhat blurred by the courts in recent cases.  Courts now generally analyze reasonable suspicion and/or probable cause by asking two questions.  First, did the driver actually break the law while being observed by the law enforcement officer?  Second, if the driver did not break the law, what specific and articulable facts and observations were present that may have warranted stopping the driver?   As you can probably see, these two questions are essentially asking “Did the officer have probable cause to stop and if not, did he at least have a reasonable suspicion?”

Some states also recognize the doctrine of actual physical control, which, depending on the scope of the doctrine in the applicable jurisdiction, will allow officers to arrest for DWI or DUI even when a motorist is not actually driving his or her vehicle.  North Carolina does not recognize this doctrine beyond the definition proscribed under the motor vehicle statutes.  The DUI statute requires that person drive a motor vehicle under the influence of an impairing substance or with a BAC of 0.08% or more.  The term driver is synonymous with operator, which is defined as “A person in actual physical control of a vehicle which is in motion or which has the engine running.”  Under this definition, a person must, at a minimum, be in control of a vehicle which as the engine running to be considered to be driving or operating the vehicle.  This means that a driver cannot be guilty of a DUI for sitting in his or her vehicle when the engine is not running.  However, a driver could be arrested for DUI for simply sitting in his or her car with the engine running, so long as they are in a public vehicular area, such as a parking lot or along a roadway.


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