Here is an excerpt from a memo we use when date/time wrong or missing in DWI case:
In State v. Simmons, 57 N.C.App. 548, 551, 291 S.E.2d 815, 817 (1982) our Court of Appeals stated:
In North Carolina, "[i]t is the settled rule that the evidence in a criminal case must correspond withthe allegations of the indictment which are essential and material to charge the offense. [Footnoteomitted.] The indictment controls the prosecution, and evidence not supported by the indictment isunavailing." 7 Strong's N.C. Index 3d, Indictment and Warrant § 17, p. 162.
“In all cases the charge must be proved as laid.” State v. Bell, 65 N.C. 313.
The date and time of driving is always an essential element of a charge of driving while impaired.N.C.G.S. 20-138.1(a) defines “driving while impaired” as follows:
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, analcohol concentration of 0.08 or more.
(emphasis added). N.C.G.S. 20-4.01(33a) defines “relevant time after the driving” to mean “any timeafter the driving in which the driver still has in his body alcohol consumed before or during the driving.”(emphasis added). Furthermore, N.C.G.S. 20-138.1(c) states “In any prosecution for impaired driving,the pleading is sufficient if it states the time and place of the alleged offense.” (emphasis added).“When one is taken into policy custody for an offense of which intoxication is an essential element,time is of the essence. Intoxication does not last…” State v. Hill, 277 N.C. 547, 553, 178 S.E.2d 462, 466(1971) (emphasis added).
When the proof does not match the allegations in the citation, there is a variance. A fatalvariance occurs when the proof does not match the material allegations in the citation, leaving theallegation without any evidence to sustain it. “The question of variance … challenges the right of thestate to a verdict upon its own showing, and asks the court, without submitting the case to the jury,decide, as a matter of law, that the state has failed in its proof.” State v. Gibson, 169 N.C. 318, 85 S.E. 7.“A motion to dismiss [for a variance] is in order when the prosecution fails to offer sufficient evidencethe defendant committed the offense charged. A variance between the criminal offense charged andthe offense established by the evidence is in essence a failure of the State to establish the offense.