Asheville criminal lawyer James Minick

Attorney James Minick

This article is an outline designed to help North Carolina Attorneys defend their clients in a DWI charge. The focus of this article is attacking the probable cause to arrest for Driving While Impaired.

In any attack based on probable cause,  always begin by pointing the Court to the Fourth Amendment. The highest law in our land protects individuals against unreasonable searches and seizures. Read the relevant language from the Fourth Amendment. Don’t let the Fourth Amendment sit be a meaningless starting point. Shake the dust from the document and bring it back to life in the Courtroom. Remind the Court that the statutory traffic laws of the State of North Carolina pale in comparison to the mandates of the Federal Constitution.

Next, lay out the standard of probable cause for the Court. Probable cause is determined by looking at the totality of the circumstances in each case. “Probable cause for an arrest has been defined to be a reasonable ground of suspicion, supported by circumstances strong in themselves to warrant a cautious man in believing the accused to be guilty.State v. Teate, 180 N.C. App. 601, 607 (2006). The emphasized words should be clearly inflected as you are speaking to the judge. Break down this definition. The standard is that an arrest should only occur where there are such strong circumstances of criminal activity that a cautious person would believe the individual is guilty. Another way of putting this is to say that the officer is giving the benefit of the doubt to the person charged. If the officer’s investigation appears to be biased, rushed, or incomplete, then the officer is not being cautious in the investigation.

Let’s put this into practice:

  • Attorney: So you only performed one of the three standardized field sobriety tests you are trained to perform?
  • Officer: Yes.
  • Attorney: Why is that?
  • Officer: I felt I had enough evidence to form my opinion that the defendant was impaired.

If this is the testimony offered during a suppression hearing on a motion for lack of probable cause, then be sure to talk to the judge about this point. “Your honor, would a cautious man form an opinion after performing only 1 of 3 standardized tests, tests designed based on meticulous research and training to specifically detect a person’s impairment by alcohol?

Finally, present cases from our appellate courts regarding situations where probable cause was not found by the Court. Two recent decisions where probable cause was not found are State v. Sewell, a 2015 unpublished opinion from the NC Court of Appeals and State v. Overocker, 762 S.E.2d 921 (2014). Below I have laid out a summary of the evidence of impairment and sobriety from the Sewell and Overocker opinions. Compare your case with the facts presented in Sewell and Overocker to the judge in your case to show that your case is similar and since PC was not found in Sewell and Overocker it should not be found in your case.

Evidence of impairment in Sewell: Red glassy eyes, strong odor of alcohol emanating from Defendant’s vehicle, 6 of 6 clues on HGN, 2 positive alco-sensor tests, Defendant initially denied drinking (i.e. lied to officer), but later admitted to drinking.

Evidence of sobriety in Sewell: No bad driving (was a checkpoint case), no slurred speech, no trouble in retrieving license and registration, no clues on W&T, no clues on 1LS, steady on feet, Defendant followed officer’s instructions an was polite, cooperative and respectful at all times during the encounter, and officer did not testify that Defendant was source of the odor of alcohol (there was a passenger in the vehicle).

Evidence of impairment in Overocker: Defendant had four bourbons on the rocks (initially stated he had only two), Defendant was talking loudly, Defendant backed over a motorcycle despite bystanders yelling at him to stop backing his car, odor of alcohol coming from person, red and glassy eyes, 2 positives on PBT. Asked officer half way through both the W&T and 1LS how to complete the test.

Evidence of sobriety in Overocker: No problem balancing or walking, no slurred speech, accident was not result of impairment (but of illegal parking by another person), witness (who had consumed 4 beers) testified he thought Defendant was fit to drive.

Make sure you always have copies of any cases you are referencing to produce to the court and to the district attorney.

Please feel free to contact us if you have questions or comments.  Thank you