North Carolina’s DWI Law defines a DWI offense as driving a vehicle on a public highway while impaired. For an offender to be considered impaired by alcohol, he must have a blood alcohol content of 0.08% or higher. The law sounds deceptively straightforward.

However, there’s a bit more to it than simply the definition. What exactly counts as “driving”? And what counts as a vehicle? And very importantly, what areas are considered public highways?

The answers may surprise you.

What’s the Definition of Driving for a North Carolina DWI?

To be proven guilty of a DWI in North Carolina, under N.C. Gen. Stat. § 20-138.1, the State must show all the elements of the charge, including the fact that the Defendant was driving. Although this seems pretty straight forward, an individual can be guilty of driving when the car is not in motion, in park, or if the individual is not currently in the driver’s seat.

Definition of a Driver in NC

Under N.C. Gen. Stat. § 20-4.01(7) and (25), a driver/operator is defined as a person in actual physical control of a vehicle which is in motion or which has the engine running. The terms “operator” and “driver” are interchangeable. From this definition, the various potential situations for an individual to be charged for DWI start to become more clear. Generally, an individual can be considered to be driving a vehicle as long as they are in the driver’s seat and the engine is running.

Relevant DWI Cases in NC

From the definition of a driver under N.C. Gen. Stat. § 20-4.01(7) and (25), courts have decided in many cases what constitutes a driver. Here are several examples:

In State v. Mabe, 85 N.C. App. 500 (1987), the court determined that an individual was the driver of a parked car because he was in the driver’s seat and had turned off the engine himself.

In State v. Crawford, 125 N.C. App. 279 (1997), the court determined that there was enough evidence to show that the individual charged was the driver based off the facts that he was the only passenger in the car, the car was parked, the engine was off but still warm, and the individual was semi-conscious from drinking too much.

In State v. Fields, 77 N.C. App. 404 (1985), the court determined that the Defendant was the driver since he was found sitting in the driver’s seat of a motionless car with the engine running. Although the defendant argued that his friend was driving and he had only turned on the car for heat, the court found that he was in sufficient control of the car to be considered the driver/operator and therefore was guilty.

In State v. Clapp, 135 N.C. App. 52 (1999), it was determined that the Defendant was considered the driver of the vehicle, even though the vehicle was broken and did not function, since the vehicle was moving at the time of the charge.

From these examples, it is easy to see that an individual can be considered a driver without actually having driven anywhere. As such, it is important to know what your options are if you are facing a DWI. If you have been charged with a DWI, don’t hesitate to Contact Us at Minick Law for a free consultation about your case.

What Counts as a Vehicle for a North Carolina DWI?

In general, being charged with Driving While Intoxicated (DWI) means that a person has been caught driving a car while intoxicated. However, under North Carolina law, a person can be charged with a DWI, even if they are not necessarily driving a car.

Definition of a Vehicle

In order to convict a person of DWI, the State must prove that person was driving a vehicle while intoxicated. At a glance, the word vehicle is difficult to define since it could mean any number of things, ranging from a car to a spaceship. To solve this problem, under N.C. General Statute § 20-4.01(49), a vehicle is defined as anything that can be used to transport a person or property, on a public highway. N.C. General Statute § 20-4.01(49) also states that a bicycle is considered to be a vehicle when used on a public highway because a bicycle rider must follow all the same laws of the road as a car. Additionally, a moped is considered a vehicle if it has two or three wheels, no external shifting device, a engine no larger then 50 cubic centimeters, and a max speed of less then 30 miles per hour.

Exceptions to the Definition of a Vehicle

There are also various exceptions to this law.  Exclusions explicitly stated are: anything that is human powered, used exclusively on fixed rails or tracks, or any motorized personal scooter that travels less then 15 miles per hour. Generally, the following are also examples of things that are excluded from the definition of a vehicle:

  • Wheelbarrows
  • Trains and trolleys
  • Motorized scooters for medical impairments (Max speed of less then 15 mph)
  • Motorized wheelchairs
  • Rollerblades
  • Skateboards

Prior Cases Regarding Vehicles

There have been a wide range of cases in North Carolina regarding what constitutes a vehicle for the purposes of a DWI. In State v. Green, 251 N.C. 141 (1959), it was determined that a tractor used for farming qualified as a vehicle for a DWI charge. In State v. Crow, 175 N.C. App. 119 (2005), the court found that an electric stand-up scooter was also within the definition of a vehicle to uphold a DWI conviction. However, in Lewis v. Watson, 229 N.C. 20 (1948), it was found that a handcart, being pushed by a person, did not qualify as a vehicle for purposes of a DWI.

As you can see, although there are laws defining what is considered a vehicle for the purposes of a DWI, there are a variety of situations that can arise where it is hard to determine whether a thing should be considered a vehicle. Although there may be a situation where the thing may be excluded, the laws defining a vehicle were written to be very broad in order to give the State the ability to charge a person a DWI in most circumstances. As such, a person should always consider the ramifications of being charged with a DWI when using anything as transportation after drinking.

If you have been charged with a DWI, don’t hesitate to Contact Us at Minick Law, P.C., for a free consultation about your case.

What is the Definition of a Public Vehicular Area for a North Carolina DWI?

In order for an individual to be charged with Driving While Intoxicated (DWI) in North Carolina, the State must prove that an individual was driving impaired on a public highway. Under N.C. Gen. Stat. § 20-138.1, a public highway is any highway, street, or public vehicular area in North Carolina. Under N.C. Gen. Stat. § 20-4.01, a highway and a street are defined as the entire width between property or right-of-way lines, when any part thereof is open to the use of the public as a matter of right for the purposes of vehicular traffic.

What is a Public Vehicular Area?

From this definition, it is easy to see that the scope of what is a public highway is very broad, especially based of the third part of the definition – a public vehicular area. Since a highway and a street are easily defined, most issues regarding the designation of a public highway in DWI charges arise out of the definition of a public vehicular area. A public vehicular area is anywhere a vehicle can be driven by a member of the public. This includes parking garages, parking lots, and even driveways. Although these are considered private property since they are owned by individuals and not by the state, the police can still charge individuals with DWI on these properties since members of the public have access to their use.

Cases Defining Public Vehicular Area

There are several cases that have been decided in North Carolina that have defined what a public vehicular area is. In State v. Snyder, 468 SE 2d 221 (1996), the North Carolina Supreme Court found that a parking lot of a private night club was still considered a public vehicular area, even though the nightclub was a private establishment that didn’t allow the entire public in. Following this case, the legislature broadened the definition of a public vehicular area under N.C. Gen. Stat. 20-401(32). In State v. Mark, 154 N.C. App. 341 (2002), the court concluded that a private street was considered a public vehicular area because there was an inference that the street was open to the public because it had a name, was the requisite width of a state road, and was located near other roads.

From these cases, it is easy to see that there is strong support under the law for police officers to be allowed to charge an individual with DWI almost anywhere a vehicle can be driven, regardless of whether the area is owned by the state or by a private owner. If you have been charged with a DWI, don’t hesitate to Contact Us at Minick Law for a free consultation about your case.

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