Daisley Law Offices, P.C.

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Do you have to be over the limit to be a drunk driver?

Like the states, North Carolina has a "per se" law when it comes to drunk driving. This means that if a police officer legally stops a Charlotte, North Carolina, driver and, following the proper procedures, gets a test showing the person's blood alcohol content is over .08, then the law presumes that the person is a drunk driver and subject to criminal penalties, although of course guilt or innocence or ultimately for a jury to decide.

The criminal conviction for "per se" operating can also be used to demonstrate negligence in a late civil suit, assuming the legally drunk driver caused an accident. The injured person need only prove that the drunkenness actually contributed in some way to the car accident and person's injuries.

However, does an injured victim of an accident still have recourse if someone who had been drinking cause an accident while driving erratically, even if he or she blew under .08? Obviously, this person was not able to manage his or her vehicle after drinking.

The answer to this question is "yes" for several reasons. For one, although being able to show that a driver broke a traffic law certainly helps, it is not necessary to prove someone violated law before being to able to get compensation from them for negligence. Perhaps more importantly, even North Carolina police can still arrest someone for drunk driving despite that person not being over the limit. The police can do so by pointing out that, for that person, the alcohol still affected their ability to drive. If police can do it in a criminal case, it is all the easier to do it in a civil proceeding where the burden of proof is much lower.

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  • North Carolina Advocates for Justice Protecting People’s rights
  • NOSSCR National Organization of Social Security Claimants’ Representatives
  • American Association for Justice formerly the Association of Trial Lawyers of America ATLA
  • ABA American Bar Association
  • NOVA
  • North Carolina State Bar
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