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Law Enforcement Employs Alternative DWI Tactic

Usually when we think of a police officer trying to stop DWIs, we think of traffic stops and checkpoints that might lead to field sobriety tests and breathalyzers. The Charlotte Observer reports that Mecklenburg County ABC law enforcement have been trying a new tactic over the past year to prevent DWIs. It is as simple as asking potential intoxicated drivers, “Wouldn’t you rather call someone else for a ride?”

The Mecklenburg ABC has used this tactic six times over the past year, most recently last Friday on Park Road near SouthPark mall. Typically, officers will watch parking lots and the exits of bars for people that look to be intoxicated and about to drive home. An officer will approach these people and ask them to call a friend or a cab instead of driving. Sometimes, an officer will even provide a voucher for a free cab ride home.

Although this tactic does not result in arrests, police estimate that they have stopped hundreds of people from driving drunk in the past year, with 46 people stopped last Friday night. The officer who heads the Mecklenburg County ABC law enforcement described this tactic as particularly efficient at stopping drunk driving because instead of spending three or four hours processing one DWI, an officer can keep 10 or 12 people from driving while impaired.

The officer says that he thought of the idea when he was stationed at a DWI checkpoint. He  noticed the line of cars waiting to go through the checkpoint and another line of people waiting to take a breathalyzer, and he thought “What if, instead of waiting for them to come to us, what if we went to them?”

When determining who to approach, officers look for typical signs of intoxication, including having trouble walking, as well as people who are “running around hitting signs, screaming and hollering.” Most people approached have found a friend or cab themselves, but officers have handed out 23 cab vouchers for rides home. This has resulted in a total of less than $350 coming out of the Mecklenburg County ABC funds.

So far all people who have been approached as part of this effort have chosen to find an alternative way home. However, if a person were to get into his car and drive home after being so approached by an officer, the officer can subsequently stop that person on suspicion of DWI. That leads us to ask if a person who an officer suspects to be intoxicated does get into a car, at what point can the officer stop them on suspicion of DWI?

The North Carolina DWI statute, G.S. 20-138.1, states that

A person commits the offense of impaired driving if he drives any vehicle upon any highway, any street, 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. The results of a chemical analysis shall be deemed sufficient evidence to prove a person's alcohol concentration; or

(3)    With any amount of a Schedule I controlled substance, as listed in G.S. 90-89, or its metabolites in his blood or urine.

Does this mean that the officer must allow the person to drive away? Let’s look at how the term “drive” is defined under North Carolina statute. G.S. 4.01(7) defines a “driver” as “[t]he operator of a vehicle, as defined in subdivision (25). The terms "driver" and "operator" and their cognates are synonymous.”

So next we look at G.S. 4.01(25), which defines an “operator” 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" and their cognates are synonymous.”

Therefore, a person violates the DWI statute if he is impaired while “operating” his vehicle, which includes sitting in a parked vehicle with the engine running under the statutory definitions. However, there is one more element in the DWI statute that we must examine - a violator must drive on a “highway,” “street,” or “public vehicular area.” If the person had parked his car on the street and was intoxicated when he got into the car and turned on the engine, he would violate the DWI statute. But what if he had parked his car in the parking lot of a bar or restaurant?

The definition of “public vehicular area” is found in G.S. 4.01(32) and includes

Any area within the State of North Carolina that meets one or more of the following requirements:

a.     The area is used by the public for vehicular traffic at any time, including by way of illustration and not limitation any drive, driveway, road, roadway, street, alley, or parking lot upon the grounds and premises of any of the following:

1.     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.

2.     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.

3.     Any property owned by the United States and subject to the jurisdiction of the State of North Carolina. (The inclusion of property owned by the United States in this definition shall not limit assimilation of North Carolina law when applicable under the provisions of Title 18, United States Code, section 13).

b.     The area is a beach area used by the public for vehicular traffic.

c.     The area is a road used by vehicular traffic 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.

d.     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.

A parking lot of a restaurant or bar would be included in subsection (a)(2) of the definition. Therefore, when an impaired person gets into his car parked in the parking lot of a bar or restaurant and turns on the engine, he violates the impaired driving statute.

If you have been charged with impaired driving, visit www.rflaw.net for legal help.

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