Shortly after I published last week’s post on State v. Babich, an astute reader asked about the court’s harmless error analysis. How, he inquired, could the improper admission of expert testimony that the defendant had an alcohol concentration of 0.08 be harmless error? Did the jury’s verdict indicate that it found the defendant guilty only under the “under the influence” prong of impairment rather than under the “alcohol concentration of 0.08 or more” prong? To answer these questions, I had to dig into the record on appeal and provide a bit of background on the requirement for jury unanimity in DWI cases. I thought others might be interested in my response. Review. A person commits the offense of driving while impaired if she (a) drives, (b) a vehicle, (c) on a street, highway, or public vehicular area, (d) while impaired. G.S. 20-138.1(a). The State may establish impairment in any one of three ways: by proving that the defendant drove (1) while under the influence of an impairing substance; (2) after having consumed sufficient alcohol that she 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 her blood or urine. Charging DWI. When charging a defendant with the misdemeanor offense of driving while impaired, the State is not required to allege its theory of impairment. A pleading is sufficient if it states the time and place of the offense and charges [...]
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