June 14, 1982
Subject:
Motor Vehicles; Careless and Reckless Driving After Drinking; G.S. 20-140(c).
Requested By:
Judge David R. Tanis Forsyth County District Court
Question:
May a defendant be charged in an original pleading with a violation of G.S. 20-140(c), or must it always be found as a lesser included offense of driving under the influence?
Conclusion:
Yes, it may be charged is an original pleading.
The elements of the offense include: (1) operation of a motor vehicle, (2) upon a highway or public vehicular area, (3) after consuming such quantity of alcoholic beverages as directly and visibly affects the operation of the vehicle. Driving under the influence under G.S. 20-138 requires (1) operation of a vehicle, (2) upon a highway or public vehicular area within this State,
(3) while under the influence of alcoholic beverages or when the amount of alcohol in the driver’s blood in 0.10 percent or more by weight. Thus, a driver may drive while under the influence of intoxicating beverages, but not display any erratic driving prior to his arrest. State v. Sneed, 295 NC. 615, 247 S.E. 2d 893 (1978). Likewise, a driver may drive after consuming alcoholic beverages which consumption visibly affects his driving, but not to the extent that his bodily or mental faculties are appreciably impaired. In that situation, an original charge under
G.S. 20-140(c) would be appropriate if the breathalyzer reading registered below 0.10 percent. "The offense of reckless driving under G.S. 20-140(c) should, in our opinion, be treated as a specific misdemeanor." State v. Robinson, 40 N.C. App. 514 (1979).
Rufus L. Edmisten
Attorney General
Jane P. Gray Assistant Attorney General