Charged With DWI at a Breath Reading of Exactly .08

Attorney Answer

A reading of .08 is not a safe harbour. North Carolina's statute reads "0.08 or more," so exactly .08 meets it.

N.C. Gen. Stat. § 20-138.1(a) sets out three separate ways the offense of impaired driving can be committed by a person driving on a highway, street or public vehicular area in the state: (1) while under the influence of an impairing substance; (2) after having consumed sufficient alcohol that he has, at any relevant time after the driving, an alcohol concentration of 0.08 or more; or (3) with any amount of a Schedule I controlled substance or its metabolites in his blood or urine. The statute adds that "The results of a chemical analysis shall be deemed sufficient evidence to prove a person's alcohol concentration." And § 20-138.1(b) provides that being legally entitled to use alcohol is not a defense.

Two things follow that people at exactly .08 usually have not been told. First, .08 is the bottom of the range, not below it — subsection (a)(2) is satisfied at the number, so no separate showing of appreciable impairment is required. Second, subsection (a)(1) is an independent theory. Even where the chemical result is knocked out, the State can still proceed on evidence that you were under the influence of an impairing substance. Notice also the phrase "at any relevant time after the driving" — the reading does not have to have been taken at the wheel.

None of that means the case is over. The reading is evidence, and how the test was administered and whether the result is admissible can be contested. But it does mean that ".08 is the limit, so I should not have been charged" is not an argument that works.

What you can do

1. Find out today whether a civil licence revocation was entered when you were arrested, and what the deadline is to request a hearing on it. Ask the clerk of court in the county where you were charged. This is the deadline people miss. 2. Get your citation and find out which subsection or subsections of § 20-138.1(a) were charged — impairment, the .08 reading, or both. 3. Through a lawyer, ask for the breath test printout, the observation period record, and the instrument's maintenance and calibration records. 4. Write down the timeline while you remember it: time of your last drink, time of the stop, time of the test. "At any relevant time after the driving" makes that sequence matter. 5. Do not drive while revoked — driving on a revoked licence is a separate charge and it complicates everything that follows.

⏱ Time limits apply — the licence side first. In North Carolina a civil revocation is imposed at the time of arrest and runs on its own short clock, measured in days, while you are still waiting for a court date. It is a separate track from the criminal charge, decided under a different standard of proof, and the two can come out differently on the same stop. Winning one does not dispose of the other. Your exact deadline depends on the papers you were handed, so confirm it with the clerk rather than assuming.