The Opinion Question: Myth or Magic?

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Even the greenest of prosecutors knows to ask it.  And all officers, from rookie to veteran, know how to answer. Rare is the impaired driving case without it. What’s the it? The opinion question, of course.

You’ll find the following exchange recorded in many a DWI transcript.

Q: Did you form an opinion, satisfactory to yourself, that the defendant had consumed a sufficient amount of some impairing substance so as to appreciably impair his mental or physical faculties or both?
A: Yes, I did.
Q: What was that opinion?
A: It was my opinion that the defendant had consumed a sufficient quantity of an impairing substance so that his mental and physical faculties were both appreciably impaired.
Q: Did you have an opinion as to what the impairing substance was?
A: I believed it to be some type of alcohol.

This line of questioning is as proper as it is prevalent. North Carolina’s courts have long held that a lay witness who has personally observed a person may express an opinion as to whether the person was impaired by an impairing substance. See State v. Lindley, 286 N.C. 255 (1974). Though officers frequently base such opinions in part upon their training and experience regarding the physical manifestations of having consumed alcohol or some other impairing substance in addition to their personal observations, courts have considered such opinions to be those of a lay rather than an expert witness. See id.

Perhaps because the question is so ubiquitous, it has taken on a talismanic quality. Defendants sometimes argue that the State’s evidence is insufficient as matter of law if an officer does not testify as to his opinion that the defendant was “appreciably impaired,” by an “impairing substance.” Such opinion testimony is not, however, essential to proving the elements of impaired driving.

Certainly the State must prove that the defendant was impaired. The State may establish this element by proving that the defendant (1) was under the influence of an impairing substance, (2) consumed sufficient alcohol that he or she had, at any relevant time after the driving, an alcohol concentration of 0.08 or more, or (3) had any amount of a Schedule I controlled substance or its metabolites in his or her blood or urine. See G.S. 20-138.1(a)(1), (2), (3). Chemical testing can establish impairment for purposes of the .08 and Schedule I controlled substances theory, and fact testimony from witnesses can establish that a defendant was “under the influence,” or, in other words, “appreciably impaired,” by an impairing substance. Thus, an officer’s testimony regarding his or her observations, which might include faulty driving, an odor of alcohol, red, glassy, eyes, poor performance on field sobriety tests, and slurred speech, among other observations, often are is legally sufficient, without the opinion based on those perceptions, to prove impairment.

So, while the officer’s opinion often will be was helpful to the jury, see State v. Adkerson, 90 N.C. App. 333, 338 (1988), it is not essential to the State’s case. It’s not magic. That’s a myth.

2 comments on “The Opinion Question: Myth or Magic?

  1. I hate the opinion question, always have. It is one of the worst examples of elevating form over substance in day-to-day practice in district court, and it teaches our young prosecutors an awful lesson — that these magic words form a doorway through which your case must pass if it is to be successful. GAH.

    Thanks for taking the time to deconstruct this abomination.

  2. Just as the article points out, my biggest concern in posing the opinion question to officers is that it seems (and nearly is) completely scripted. I can easily picture a defense attorney cross examining an officer on the number of DWI trials the officer has testified in and the percentage of those trials where he has spoken the same exact words during his testimony relating to his opinion, and later the defense attorney will argue that the officer wasn’t paying close attention to the defendant because he already knew exactly what he was going to testify to before he even pulled the defendant over.

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