NC DWI Defense
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1. Elements of DWI
STATE vs. SIMMONS – the results of a chemical analysis do not create a legal presumption of impairment
Holding: The results of a chemical analysis are sufficient evidence for conviction but do not compel a verdict of guilty. New trial awarded to the Defendant given that the prosecutor’s improper closing argument led the jury to believe that it was compelled to return a verdict of guilty based on the chemical analysis.
Notes and Quotes: The results of a chemical test do not create a legal presumption that Defendant had, at any relevant time after the driving, an alcohol concentration of 0.08 or more.
Memorandums / Motions
2. Right to Stop
2.1 Cases: Reasonable Suspicion
STATE v. BONDS – Reference to 24 Driving Clues of Impairment
Holding: RS exists where defendant is driving slow, has a blank look and staring straight ahead, and has window rolled down all the way in sub-freezing temperature.
Notes and Quotes: Specific reference to the National Highway Traffic Safety Administration (NHTSA) publication “The Visual Detection of DWI Motorists” which outlines the 24 clues of impaired driving during the vehicle in motion phase of investigation (Phase I).
STATE v. DERBYSHIRE – No RS for weaving combine with unusually bright headlights
Facts: Defendant was driving at 10 p.m. on a Wednesday evening with unusually bright halogen headlamps and weaved across the dividing line between his lane and another lane in the same direction of travel one time.
Holding: The single instance of weaving into another lane combined with unusually bright headlights was insufficient to create reasonable suspicion for a traffic stop.
STATE v. ELDRIDGE – No reasonable mistake of law for stop
Holding: It is not a reasonable mistake of law for an officer to stop a vehicle, which is registered in another state, due to not having side mirrors when the North Carolina Statute only requires vehicles “registered in this State” to have such mirrors. No reasonable suspicion. Compare with Heien v. North Carolina, 574 U.S. ____, 135 S. Ct. 530, 190 L. Ed. 2d 475 (2014).
STATE v. FIELDS – No RS for three instances of weaving/swerving within lane
Facts: The stopping officer observed defendant’s car for approximately 1.5 miles during which he saw the car swerve to the white traffic line three separate times. The hour of driving was 4:00 p.m. and there was no evidence that there was any nearby places to purchase alcohol.
Holding: “We hold that defendant’s weaving within his lane, standing alone, is insufficient to support a reasonable suspicion that defendant was driving under the influence of alcohol.”
Notes and Quotes: “We have previously held that weaving can contribute to a reasonable suspicion of driving while impaired. However, in each instance, the defendant’s weaving was coupled with additional specific articulable facts, which also indicated that the defendant was driving while impaired.”
STATE v. JENKINS – Radar not admissible without independent opinion of speed
Citation: State v. Jenkins, 80 N.C. App. 491, 342 S.E.2d 550 (1986)
Holding: “the speed of a vehicle may not be proved by the results of radar measurement alone and such evidence may be used only to corroborate the opinion of a witness as to speed, which opinion is based upon actual observation.”
STATE v. JOHNSON – RS where officer had reasonable belief that traffic law had been violated
Facts: Defendant was stopped at a red light on a snowy evening. When the light turned green, defendant’s truck abruptly accelerated, turned sharply left, and fishtailed, all in front of a police officer in his patrol car. The officer pulled defendant over for driving at an unsafe speed given the road conditions.
Holding: The officer had reasonable suspicion for the stop because it was reasonable to believe that N.C.G.S. § 20-141(a) (prohibiting a person from driving too fast for road conditions) had been violated.
STATE v. OSTERHOUDT – Crossing double yellow line creates reasonable suspicion
Holding: Crossing a double yellow line without justification creates reasonable suspicion to stop for violation of statutory traffic laws regardless of whether such driving is within the broad range of normal driving behavior.
STATE v. PEARSON – No RS due to simple odor of alcohol, inconsistent statements, and acting nervous
Facts: The defendant had an odor of alcohol, acted “nervous and excited,” and made statements inconsistent with his passenger.
Holding: No reasonable suspicion for any crime (including DWI).
Notes and Quotes: The court emphasized that the characterization of the odor of alcohol was “slight.”
STATE v. ROBERSON – No RS for 8-10 second delay at a traffic light
Facts: Defendant stopped at a red light at approximately 4:30 a.m. When the light turned green, the arresting officer noticed that the Defendant’s vehicle remained stationary for eight to ten seconds. The officer testified that his NHTSA training (on driving clues of impairment) indicated that a driver who has a delayed response to traffic signals is 40% likely to be DWI.
Holding: A time lapse of eight to ten seconds at a light changing from green to red does not create reasonable suspicion for a stop.
Notes and Quotes: An officer’s rational inferences, informed by his training and experience, “must still be evaluated against the backdrop of everyday driving experience. . . . Moreover, the fact that the stop occurred in the early morning hours does not enhance the suspicious nature of the observation.”
2.2 Cases: Anonymous Tip
NAVARETTE v. CALIFORNIA – Anonymous phone call in context of DWI
Facts: A California Highway Patrol officer stopped a pickup truck occupied by defendant because they had received a 911 phone call and the caller explained that a truck matching the description of the defendant’s (including the license plate number) had run her off the road. After the stop, drugs were found in the vehicle.
Holding: The information that the anonymous caller had been run off the roadway was reliable and indicative of a drunk driver sufficient to give police reasonable suspicion to stop.
Notes and Quotes: An eyewitness to dangerous driving lends significant support to a tipster’s credibility. “A 911 call has some features that allow for identifying and tracing callers, and thus provide some safeguards against making false reports with immunity.”
STATE v. VEAL – 911 phone call led to officer’s consensual encounter with defendant
Facts: A gas station employee called 911 about a very intoxicated person who had left the gas station in a green Chevy truck. The officer that responded to the call drove to the gas station and parked his car. The officer approached the Defendant’s vehicle on foot and asked to speak with him. He observed an odor of alcohol coming from the Defendant and slurred speech. He then asked the defendant to exit the vehicle.
Holding: The officer’s interaction with defendant was initially voluntary and not a seizure and therefore the officer’s observations (in addition to the information from 911 dispatch) were sufficient to give defendant reasonable suspicion to believe driving while impaired had occurred and thereby initiate a seizure by asking the defendant to exit his vehicle.
STATE v. BLANKENSHIP – Insufficient reliability to a anonymous phone tip related to possible DWI
Facts: An anonymous taxi cab driver called 911 using his personal cell phone and reported a red Mustang convertible driving erratically, running over traffic cones and continuing on Patton Avenue. The taxi driver followed the Mustang for some time and also conveyed the license plate number to 911 dispatch. Officers located the vehicle less than 2 minutes later and initiated a traffic stop but did not see any bad driving.
Holding: To justify a warrantless search and seizure an anonymous tip must either have possessed sufficient indicia of reliability or the officers must have corroborated the tip.
Notes and Quotes: “While the fact that the caller’s tip provided the license plate number and the location of defendant’s car may have provided some limited indicia of reliability, the caller did not describe defendant, did not provide any way for the Officer to assess the caller’s credibility, failed to explain the caller’s basis of knowledge, and did not include any information concerning defendant’s future actions.”
STATE v. PEELE – No reliable assertion of illegality by anonymous tipster
Facts: Officer received a call from dispatch reporting that a burgundy Chevrolet truck was “a possible careless and reckless, D.W.I., headed towards the Holiday Inn intersection.” The officer was at the intersection “within and second” and observed the truck for a tenth of a mile during which the officer observed the vehicle weave within its lane one time.
Holding: No reasonable suspicion for DWI where there is a single instance of weaving within lane and an anonymous tip that does not give reliable and detailed information of a suspect’s impaired driving.
Notes and Quotes: “The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person.”
2.3 Cases: Turning Ahead Of A Checkpoint (Rs Analysis)
STATE v. BOWDEN – Breaking hard and turning abruptly ahead of a checkpoint combine with other unusual behavior created RS for stop
Facts: Defendant approached a checkpoint that was not visible to motorists until the driver got about 250 feet away. As defendant’s vehicle approached the checkpoint, officers observed the defendant brake hard, causing the front headlight to dip low, and then make an abrupt right-hand turn into the parking lot of an apartment complex. An officer followed defendant into the parking lot and observed the defendant pull his vehicle into a parking space, then leave the space and head back to the apartment complex’s exit before parking in a second space. The officer then pulled his car behind the defendant’s and activated his blue lights.
Holding: The time, place and manner of defendant’s turn ahead of a checkpoint created reasonable suspicion.
Notes and Quotes: “In addition to the fact of defendant’s legal turn immediately prior to the checkpoint, the following facts combined to allow Officer Goodykoontz to make a reasonable inquiry to determine whether defendant was trying to evade the checkpoint: (1) the late hour; (2) the sudden braking of the truck when defendant crested the hill and could see the checkpoint, to the point that the headlights dipped as the front of the truck dove towards the street; (3) the abruptness of defendant’s turn into the nearest apartment complex parking lot; and (4) defendant’s behavior in first backing the truck into one space, pulling out and proceeding towards the parking lot exit, and then re-parking when he spotted the patrol car approaching him.”
STATE v. FOREMAN – Quick turn immediately prior to a DWI checkpoint combined with parking the car and all occupants ducking down as police neared created RS
Facts: Defendant approached a checkpoint and made a quick turn immediately prior to passing a checkpoint notice sign stating “DWI Checkpoint Ahead.” An officer located the vehicle shortly after this turn and found the vehicle with its lights off and the occupants crouched down inside the vehicle.
Holding: A legal turn, by itself, is not sufficient to establish reasonable suspicion. However, “a legal turn in conjunction with other circumstances such as the time, place, and manner in which it is made, may constitute a reasonable, articulable which could justify an investigatory stop.”
Notes and Quotes: Look at Justice Frye’s concurrence. Frye indicates that critical to finding reasonable suspicion was the officer’s following and further investigating a vehicle that turns ahead of a checkpoint before initiating a stop. “There is a difference between stopping a vehicle and simply following it. Reasonable and articulable suspicion is necessary for an investigatory stop, but unnecessary to justify following a vehicle. While mere avoidance of a DWI checkpoint may prompt law enforcement officers to follow a vehicle, it does not, alone, give rise to a reasonable and articulable suspicion of criminal activity.”
STATE v. GRIFFIN – Stopping in the middle of the road and making a three point turn immediately before entering a checkpoint created RS
Facts: Defendant approached a checkpoint, stopped in the middle of the road (although not at an intersection) and attempted to make a three-point turn in an attempt to drive in the opposite direction of the checkpoint.
Holding: The Court found that the time, place and manner of defendant’s turnaway created adequate reasonable suspicion to stop the vehicle.
Notes and Quotes: Note the manner in which this turn was made and distinguish a factual situation where a normal turn is made onto a street before entering the checkpoint perimeter.
2.4 Cases: CHeckpoints
BROWN v. TEXAS – Balancing test created for measuring the public concerns v. interference with individual liberty in the context of a seizure
Holding: Consideration of the constitutionality of a seizure involves a weighing of the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty.
Notes and Quotes: This three-part test was adopted in by N.C. in State v. Rose (below) to evaluate the reasonableness of a checkpoint.
CITY OF INDIANAPOLIS v. EDMOND – Checkpoints must have a legitimate primary programmatic purpose
Holding: Checkpoints established for the purpose of general crime control or to discover evidence of drug crimes are unconstitutionally broad. There must be an appropriate primary programmatic purpose for conducting a checkpoint.
Notes and Quotes: To determine the primary programmatic purpose a judge must look at all available evidence and not “simply accept the State’s invocation” of a proper purpose, but rather “carr[y] out a close review of the scheme at issue.” See Ferguson v. City of Charleston, 532 U.S. 67 (2001)
STATE v. ASHWORTH – To assess the reasonableness of a checkpoint a trial court must conduct a proper analysis of the factors set out in Brown v. Texas
Holding: The Court of Appeals found that the trial court’s conclusion that a checkpoint was reasonable was plain error and remanded to the trial court for a meaningful evaluation of the (second and third) factors set out in Brown v. Texas.
Notes and Quotes: The Court noted that the evidence presented during the suppression hearing did not show that the checking station: (1) had a dedicated start and end time; (2) which directions of traffic would be stopped; or (3) whether every vehicle would be stopped. In addition to having facts showing a spontaneous checkpoint set up, this case shows the level of analysis required of a trial court to evaluate the constitutionality of a checkpoint.
STATE v. NOLAN – Proper analysis done by trial court in assessing the purpose and reasonableness of a checkpoint
Facts: Approximately 30 officers in 20-25 patrol cars conducted a checkpoint pursuant to a written plan under supervision of a directing officer. All vehicles were stopped and the checkpoint was appropriately placed and signs indicating a checkpoint was ahead were utilized. Checkpoint officers were directed to ask every driver coming through the checkpoint to produce license and registration and to tell the officer their destination.
Holding: The checkpoint had legit primary programmatic purpose and passed constitutional muster.
Notes and Quotes: The Court of Appeals found this checkpoint to be constitutional and proper analysis performed in the findings of fact by the trial judge. If you have a checkpoint that appears to be spontaneous this is a good case to show in contrast as what should be done to satisfy the constitutional requirement of reasonableness.
STATE v. ROSE – Insufficient findings by trial court to support a constitutional checkpoint
Holding: Judicial analysis of the constitutionality of a checkpoint must include: (1) whether the checkpoint had an appropriate primary programmatic purpose, and (2) whether the checkpoint was reasonable.
Notes and Quotes: The court of appeals found the trial court made insufficient findings to support that the checkpoint was reasonable. “The evidence as it currently stands would permit the trial court to find that there was no plan, no time frame, no supervision, and no direction from anyone (oral or written) about how to conduct these wholly spontaneous checkpoints. Indeed, there was not even anyone in charge.”
STATE v. VEAZEY – Discussion of the factors to be considered in assessing the reasonableness of a checkpoint
Notes and Quotes: Along with Rose laid out a list of non-exclusive factors to determine the second and third part of the three part Brown test.
In determining the degree to which the seizure advances the public interest the court should consider:
- Whether police spontaneously decided to set up the checkpoint on a whim;
- Whether police offered any reason why a particular road or stretch of road was chosen for the checkpoint;
- Whether the checkpoint had a predetermined starting or ending time; and
- Whether the police offered any reason why that particular time span was selected.
In determining the severity of the interference with individual liberty a court should consider:
- The checkpoint’s potential interference with legitimate traffic;
- Whether police took steps to put drivers on notice of an approaching checkpoint;
- Whether the location of the checkpoint was selected by a supervising official rather than by officers in the field;
- Whether police stopped every vehicle that passed through the checkpoint, or stopped vehicles pursuant to a set pattern;
- Whether drivers could see visible signs of the officers’ authority;
- Whether police operated the checkpoint pursuant to any oral or written guidelines;
- Whether officers were subject to any form of supervision; and
- Whether the officers received permission from their supervising officer to conduct the checkpoint.
2.5 Cases: COmmunity Caretaking
STATE v. SMATHERS – adopting the Community Caretaking Doctrine as an exception to the requirement for reasonable suspicion
Facts: The stopping officer did not notice anything unusual or suspicious about the defendant’s driving. The officer saw a large animal run in front of defendant’s vehicle and saw defendant’s vehicle strike the animal causing her vehicle to bounce and produce sparks as it scraped the road. Officer activated blue lights and stopped defendant to make sure that defendant and her vehicle were “okay.”
Holding: An officer can initiate a traffic stop based on an officer’s community caretaking function. The Community Caretaking Doctrine requires that the State prove three things:
- A search or seizure within the meaning of the Fourth Amendment has occurred;
- Under the totality of the circumstance an objectively reasonable basis for a community caretaking function is shown; and
- The public need or interest outweighs the intrusion upon the privacy of the individual.
Notes and Quotes: “[W]e agree with the proposition espoused by many courts that this exception should be applied narrowly and carefully to mitigate the risk of abuse.” “The United States Supreme Court has noted that traffic stops may create ‘substantial anxiety’ and may be brought about by an ‘unsettling show of authority;’ further, they ‘interfere with freedom and movement’ and are ‘inconvenient.’”
2.6 Cases:Rodriguez Delay Cases
RODRIGUEZ v. UNITED STATES - A police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures
Citation: Rodriguez v. United States, 575 U. S. ____ (2015)
Facts: Officer Struble observed a Mercury Mountaineer veer slowly onto the shoulder of a Nebraska highway for about 1 to 2 seconds and then jerk back onto the road. Struble was a K-9 officer and he had the dog that night. The driver of the vehicle was the Defendant, Dennys Rodriguez. On approach, the officer asked for his license and registration. The Defendant told the officer he swerved to avoid a pothole. After running a check on the Defendant, officer Struble returned to the car to speak with the passenger, Mr. Pollman. Officer Struble ran a record’s check on Pollman and called for a second officer to come to the scene. Officer Struble then began writing a warning ticket for the infraction. Officer Struble then returned to the Mountaineer, explained the warning to the Defendant, and gave him back all of his documents. After the completion of the stop, officer Struble asked the Defendant if he could walk his drug dog around the vehicle. Defendant declined and was then asked to step out of his vehicle to wait for the other officer to arrive. Upon the 2nd officer’s arrival, Officer Struble walked his dog around the Defendant’s vehicle and was positive for drugs. Search of the car revealed over 50 grams of meth. A total of 7 to 8 minutes elapsed from the time Defendant was given his warning ticket to the drug dog’s positive alert. The Defendant was charged with intent to distribute meth. The Defendant filed a suppression motion arguing the officer had no reasonable suspicion to extend the traffic stop to conduct the dog sniff.
Holding: A police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures. A seizure justified only by a police-observed traffic violation, therefore, becomes unlawful if it is prolonged beyond the time reasonably required to complete the mission of issuing a ticket for the violation. *The critical question is not whether the dog sniff occurs before or after the officer issues a ticket, but whether conducting the sniff adds time to the stop.
Notes and Quotes: An officer may conduct unrelated checks during a lawful stop, but he may not do so in ways that prolong the stop, absent reasonable suspicion. The government’s interest in officer safety stems from the stop itself. Safety justifies the warrant and criminal checks. Investigation into other crimes detours from the mission of safety. The dog sniff cannot be justified based on officer safety and instead relates to the government interest of general crime deterrence. reasonableness of stop depends on what the police actually do. If an officer completes a traffic stop quickly, then that is the time reasonably required to complete the stop’s mission. A traffic stop prolonged beyond that point is unlawful. Thus, the critical question is not whether the dog sniff occurs before or after issuance of the citation, but whether conducting the dog sniff adds time to the stop.
STATE v. BEDIENT - Reasonable suspicion did not exist to prolong the stop
Citation: State v. Bedient, N.C. App., 786 S.E.2d 319
Facts: At about 11:30 pm on February 28th, 2013, Sergeant Parker of the Jackson County Sheriff’s Office observed the defendant driving with her high beams on as she passed Sergeant Parker. Parker then initiated a traffic stop. Defendant immediately told Parker she was driving with her high beams on. She was given a written warning earlier for non working headlights. The prior officer told the defendant to drive with her high beams on since her headlights were not working. It took about twenty seconds for the defendant to retrieve her license. She seemed nervous, reaching into places, including the driver side visor. Defendant recognized Sergeant Parker; she saw him at the home of Mr. Coggins. Sergeant Parker knew Mr. Coggins as a the main meth dealer in town. According to Parker, anyone who hangs around Coggins is on drugs. While checking for warrants and on the license, defendant was observed moving around her car and reaching in different places. The search for warrants came back clean. Parker then requested that defendant join him at the rear of his car. First, Parker gave defendant a verbal warning about driving with her high beams on. There was about a 15 to 20 second conversations about the high beams. Parker then asked defendants about changing her address on her license (there was an issue with her address as to whether she lived with her husband or Mr. Coggins). Then Parker asked defendant if she had been in trouble for anything. Defendant said no. When asked to search her car, defendant complied. Parker gave back the license and then asked the passenger to step out of the car as well. Upon search of the vehicle, an open container and a schedule 2 controlled substance was found in the vehicle.
Holding: Reasonable suspicion did not exist to prolong the stop. As such, the defendant’s consent to search the vehicle was invalid, as she was detained unlawfully after the mission of the traffic stop was completed.
Notes and Quotes: Nervousness, by itself, does not constitute reasonable suspicion. Many people become nervous during a traffic encounter. Nervousness must be ‘extreme’ to be taken into account for reasonable suspicion. Second, a person’s mere association with a know drug dealer, without more, does not support a finding of reasonable suspicion. No nexus or direct, specific facts in this case to tie defendant’s association with Mr. Coggins to any particularized suspicion of defendant engaging in criminal activity. Nervousness plus association with a know drug dealer creates merely a hunch, not reasonable suspicion. No reasonable suspicion existed to extend the traffic stop beyond its original missions, which was to address the high beams and change of address on the license. Since defendant gave Parker consent to search her vehicle while she was unlawfully detained after the traffic stop was completed, her consent to search the vehicle was invalid. It was not a consensual encounter on the roadside because Parker did not return the license until after the search concluded. In essence, she was not free to leave.
STATE v. CASTILLO - Reasonable suspicion did exist, justifying the officer in extending the traffic stop beyond its original scope
Citation: State v. Castillo, N.C. App
Facts: Defendant was pulled over for speeding 72 mph in a 60 mph zone. Upon approach, the officer noticed the Defendant shaking uncontrollably. When retrieving his license, the officer observed a mild odor of air fresher emanating from the vehicle and that the car was operated with a single key (hinting it was probably not defendant’s vehicle). When asked where he was going two to three times, the defendant would not respond or when he did respond, defendant replied with ‘huh.’ Defendant was then asked to step out of the vehicle, submit to a pat down, and sit in the officer’s patrol car. While entering defendant’s information into the warrants/license system, the officer asked defendant about marijuana smell. Defendant replied he had smoked three days earlier and so did his friends. Defendant told the officer about his prior marijuana impaired driving conviction in New York. This conversation occurred before the warrant checks came back negative. Officer had to print out a warning ticket, but he told Defendant he would get a warning ticket well before the ticket was actually printed. Defendant then consented to a search of his vehicle (Heroin and cocaine were found in defendants vehicle and he was charged with numerous drug crimes).
Holding: Reasonable suspicion did exist, justifying the officer in extending the traffic stop beyond its original scope.
Notes and Quotes: State v. Fisher, 219 N.C. App 498, 725 S.E.2nd 40 (2012), presents factors that led an officer to believe criminal activity was afoot: 1) an overwhelming aroma of car air freshener smell; 2) Defendants claim of driving 5 hours to go on a shopping trip, but not purchasing anything (inconsistent responses to travel plans inquiry); 3) Defendant’s nervousness; 4) Defendant’s pending criminal charges for narcotic trafficking; 5) Defendant was driving within a pack of vehicles; 6) the car was registered to a third party and not defendant; 7) Defendant never asked why he was stopped.
The factors in this case give rise to the officer’s reasonable suspicion. They were discovered before defendant entered the officer’s patrol car and while the warrant checks were running include: defendant’s unusual story about travel plans (would not reveal travel destination), nervousness displayed by the defendant, use of a masking odor, the smell of marijuana from Defendant, the fact the vehicle was registered to a third party; not the defendant, and the defendant’s admission of a prior marijuana impaired driving conviction. Based on these facts in the present case, the officer had sufficient reasonable suspicion to extend the traffic stop beyond the scope of addressing the speeding violation before entering into this patrol vehicle with the defendant.
STATE v. BULLOCK - Reasonable suspicion did exist to prolong the stop of the defendant beyond the original scope of the initial traffic violations that warranted the stop
Citation: State v. Bullock, 785 S.E.2d 746
Facts: Defendant’s vehicle was observed speeding, following too closely, and weaving briefly over the white fog line. When asked to see his license the officer observed the defendant’s hands trembling when handing over the license. Defendant stated that he had just moved to North Carolina. The car was a rental and the defendant was not an authorized driver on the rental car agreement. Defendant also had two cell phones in the vehicle. The defendant was stopped on I-85, which is a major drug trafficking route between Atlanta and Virginia. The defendant gave inconsistent answers about travel plans. He said that he was lost, but defendant could have turned around at least three exits earlier to get to where he needed to travel. The defendant was asked to step into the officer’s patrol car. The officer told him he was only issuing a warning ticket. A subsequent pat down of the defendant uncovered $372.00 in defendant’s pockets. While running the warrant database checks, the defendant gave contradictory statements in regards to his girlfriend (he said he had visited her and then said that he had never seen her face to face). Defendant had a criminal history in North Carolina dating back to the early 2000s (showing inconsistent statements about just moving to North Carolina recently). Defendant then consented to a search of his vehicle. Heroin was discovered in the vehicle and the defendant was subsequently charged with multiple drugs crimes.
Holding: Reasonable suspicion did exist to prolong the stop of the defendant beyond the original scope of the initial traffic violations that warranted the stop.
Notes and Quotes: The initial stop of the defendant was uncontested. The officer had reasonable suspicion to initiate a traffic stop due to speeding, following too closely, and weaving over the white line. Once the stop began, the officer lawfully asked the defendant to step out of the vehicle (justified by officer safety concerns). The frisk of the defendant was also deemed lawful as it both enhanced officer safety and only lasted eight to nine seconds (very brief frisk). Placing the defendant in the patrol car did not unlawfully extend the stop. Shortly after pulling the defendant over, the officer became aware of the defendant’s nervousness, two cell phones in the vehicle, and the fact that the rental car was in the name of a third party. While running the warrant checks through the database, the officer was free to speak with the defendant until the checks were completed. Defendant also gave inconsistent answers in regards to his travel plans and $372.00 was found on his person during the frisk. The officer’s initial observations of defendant (nervousness, two cell phones, third party rental car, and failure to make eye contact) along with the information gathered during the warrant checks (inconsistent and contradictory statements about just moving to North Carolina) gave the officer sufficient reasonable suspicion to prolong the traffic stop beyond its initial purpose and thus request a drug dog to the scene to search defendant’s vehicle.
STATE v. JOHNSON - The officer had the requisite reasonable suspicion to extend the traffic stop and subsequently ask the defendant to submit to a pat down search
Citation: State v. Johnson, N.C. App, 783 S.E.2d 753
Facts: The officer saw a tan truck driving with an expired tag. The officer initiated a traffic stop and spoke with the driver, ‘Waters.’ As they talked, the officer noticed several cell phones and other loose items scattered throughout the truck. The officer also noticed a box shape PCM, which is a device that controls the vehicle. The PCM device is usually in the engine block of the vehicle, though it is not illegal to have the PCM in the passenger compartment. The defendant, who was a passenger in the vehicle, appeared nervous. The defendant could not provide consistent answers about his travel plans. The defendant also exhibited heavy breathing and mumbled while talking. When the driver of the vehicle, Waters, provided his license to the officer, defendant acted extremely nervous (his neck veins were pulsing). Both the driver and the defendant could not clearly state where their destination was. The truck was properly registered to Waters, but the license plate and inspection were expired. After citing Waters for the license plate infraction, dispatch made him aware of his court date and then asked Waters to step out of the vehicle to answer additional questions. By this time, another officer had arrived to the scene and went to speak with the defendant, who again appeared extremely nervous. The officer noticed a bulge protruding from defendant’s pants. The officer then asked the defendant to step out of the truck (officer thought the bulge may be a handgun). The bulge was in fact a bag of heroin that fell out as the defendant stepped out of the vehicle. The defendant was charged with several drug crimes and filed a motion challenging the reasonable suspicion to extend the stop beyond its original scope.
Holding: The officer had the requisite reasonable suspicion to extend the traffic stop and subsequently ask the defendant to submit to a pat down search.
Notes and Quotes: The Court found the following facts, taken together, rose to sufficient reasonable suspicion to allow officer Ward to extend the traffic stop beyond its original scope: 1) Waters and the Defendant could not answer basic questions about his travel plans; 2) Waters changed his story; 3) No explanation was given for the expired registration; 4) It is unusual to find a PCM on the floor of a truck (usually in the engine department of a vehicle); 5) Defendant displayed extreme nervousness ( which continued throughout the encounter); 6) Several cell phones in the vehicle. Taken as a whole, these facts in concert demonstrate reasonable suspicion of criminal activity. Thus, the officer had reasonable suspicion to lawfully prolong the traffic stop and ask the defendant to submit to a precursory pat down.
STATE v. DOWNEY - Reasonable suspicion did exist to justify the officer in extending the traffic stop
Citation: State v. Downey, 683 S.E.2d 791
Facts: Defendant was stopped for traffic violation. Upon the officer requesting defendant’s license and registration, defendant’s hands were shaking, he was breathing heavily, and he failed to make eye-contact with the officer. The officer also noted a prepaid cell phone and a ‘Black Ice’ air freshener in the vehicle. In the officer’s training and experience, he knew that these were potential signs of drug trafficking. The car was not registered to the defendant and he gave a vague answer about his travel plans (defendant stated he was looking for a new place to live). The officer then discovered that the defendant has prior burglary and drug convictions. The officer then issued a warning ticket for the traffic violation and returned his documentation. After the documents were returned, the officer asked defendant if he could search the vehicle. The defendant refused to consent. Despite not having consent, the officer called a drug dog to the scene, which then alerted to a positive indication for drugs in the vehicle.
Holding: Reasonable suspicion did exist to justify the officer in extending the traffic stop.
Notes and Quotes: The officer observed many things before issuing the ticket culminating into reasonable suspicion to allow the officer to lawfully extend the stop. These six factors taken together; 1) defendant’s nervous behavior; 2) the use of a ‘black ice’ air freshener favored by drug couriers; 3) prepaid cell phone in the vehicle; 4) use of a car registered to a third party; 5) suspicious responses to questions; and 6) prior drug convictions, gave rise to reasonable suspicion. Thus, the officer was justified in extending the stop beyond the original scope of addressing the traffic violations.
STATE v. REED - Reasonable suspicion did not exist to seize the defendant after the completion of the traffic stop. Thus, the search of the vehicle should be suppressed and any other evidence discovered during the search of the vehicle should be suppressed
Citation: State v. Reed
Facts: Trooper Lam observed defendant’s vehicle, a Nissan Altima, traveling at 78 mph in a 65 mph zone. Defendant was traveling on I-95. Upon approach, Trooper Lam saw defendant’s fiancee, Usha Peart, in the passenger seat with a female pit bull in her lap. Trooper Lam also observed energy drinks, air freshness, and dog food scattered on the vehicle’s floor. The defendant gave Trooper Lam his New York driver’s license, a registration card, and an Enterprise rental car agreement. The rental agreement listed Ms. Peart as the renter and defendant as an authorized driver. Trooper Lam then told defendant to come sit in Lam’s patrol car. After a quick pat down, in which a pocket knife was uncovered, defendant sat in the patrol car. Defendant did not initially close the passenger side door, but was told by Trooper Lam to shut the door completely. Defendant told the Trooper Lam he was visiting family in Fayetteville, North Carolina. Trooper Lam told the defendant that the rental agreement only covered New York, New Jersey, and Connecticut ( a problem which could be solved by a phone call to the rental company). Defendant admitted a prior arrest for robbery when he was in the military.
Trooper Lam then noticed the rental agreement was for a Kia Rio and not a Nissan Altima. Trooper Lam then stepped out to speak with Peart. Ms. Peart told the trooper they were visiting family in Fayetteville, North Carolina with possible stops in Georgia or Tennessee. Ms. Peart could not find the rental agreement for the Altima, but stated that they originally had a Kia Rio, which was in an accident. The rental company gave the couple the Nissan Alitma as a replacement. Trooper Lam then told Peart he would be issuing the defendant a speeding ticket and the two would ‘be on their way.’ Trooper Lam returned to his patrol car and called the rental company confirming everything was fine with the rental car. The defendant’s license came back clean. Trooper Lam then issued the defendant a warning ticket and returned all of defendant’s documents. Trooper Lam then stated he was ‘completely done with the traffic stop,’ but wanted to ask the defendant additional questions. Defendant just nodded his head. Trooper Lam never told defendant he was free to leave. At this point, another officer showed up and stood directly beside the passenger door where defendant was sitting. Trooper Lam asked defendant if he was carrying any guns or drugs and asked to search the vehicle. Defendant told Trooper Lam to ask Peart. Trooper approached Peart and at this time, two more officers showed up to the scene. At first Peart did not give consent to search the car, but upon Trooper Lam’s insistence, she acquiesced to the search. Cocaine was found under the back passenger seat. Defendant subsequently filed a motion to suppress evidence gathered at the stop, arguing Trooper Lam extended the stop beyond its lawful duration without reasonable suspicion.
Holding: Reasonable suspicion did not exist to seize the defendant after the completion of the traffic stop. Thus, the search of the vehicle should be suppressed and any other evidence discovered during the search of the vehicle should be suppressed.
Notes and Quotes: An officer may offend the Fourth Amendment if he unlawfully extends a traffic stop by asking a driver to step out of a vehicle, asking the driver to sit in his patrol car (thereby creating need for a weapons frisk), or by telling a driver to close the patrol car’s front passenger door, while the officer questions defendant about matters unrelated to the traffic stop. Based on the State v. Bullock decision, the Court concluded that Trooper Lam’s actions requiring theDefendant to exit his car, frisking him, and making him sit in the patrol car while he ran record checks and questioned Defendant, did not unlawfully extend the traffic stop. However, a major distinction in this case from Bullock is that after Trooper Lam returned defendant’s paper work and issued the warning ticket, defendant remained unlawfully detained in the patrol car.
Normally, ‘an initial traffic stop concludes and the encounter becomes consensual only after an officer returns the detainees’s driver’s license and registration.’ State v. Jackson and State v Kincaid (stating a reasonable person, under the circumstances, would have felt free to leave when the officer returned the documents to the defendant). Thus, the first seizure concluded when the officer returned the documents to defendant. However, the governing inquiry from United States v. Mendenhall, is whether under the totality of the circumstance, a reasonable person in the detainee’s position would have believed that he was not free to leave.”
In this case, a reasonable person in defendant’s position would not feel free to leave the scene. Once Trooper Lam returned his documents, defendant was seated in the patrol car. Trooper Lam continued to question the defendant. When Trooper Lam told defendant he would ask Ms. Peart for consent to search the vehicle, he told the defendant to “sit tight.” At this point, a second officer was present, standing directly beside the passenger seat where defendant was sitting. A reasonable person would not feel free to leave when the trooper told him to stay in the patrol car and another trooper was positioned outside the vehicle door. Therefore, even after defendant’s documents were returned, defendant remained detained.
To detain a driver by prolonging a traffic stop beyond its original, lawful duration, an officer must have reasonable, articulable suspicion that illegal activity is afoot. In this case, Trooper Lam did not have reasonable suspicion to detain the defendant after the original mission of the traffic stop was concluded (issuing the speeding ticket). Defendant appeared nervous, Peart had a dog in her lap, dog food was scattered across the floorboard of the vehicle, the car contained air fresheners, trash and energy drinks. All of which constitute legal activity consistent with travel. Though suspicious at first, the rental car agreement checked out fine. This case is also distinguishable from Bullock because the defendant here did not exhibit extreme nervousness, he was actually an authorized driver on the rental agreement, multiple cell phones were not found in the vehicle. Also, the defendant did not give illogical or inconsistent statements when it came to his travel plans, confirmed by his fiancee.
Therefore, the lawful duration of the stop ended when Trooper Lam returned defendant’s license and documents. Even though the stop had ended, the defendant was still detained as he was told not to exit the patrol car and another officer was standing right outside his door. This was not a consensual encounter as a reasonable person in the defendant’s position would not feel free to leave the scene. With defendant being detained after the traffic stop concluded, Trooper Lam needed reasonable suspicion to justify the detainment of the defendant. Based on the facts, Trooper Lam did not have reasonable suspicion to justify detaining the defendant after the completion of the traffic stop and thus, the search of the defendant’s vehicle illegal and must be suppressed.
3. Probable Cause
3.1 Cases: Probable cause
STATE v. LINDSEY – PC to arrest for DWI
Facts: Officer initiated a traffic stop for an expired tag. Defendant parking in a handicap spot in a McDonald’s parking lot. Defendant then informed the officer that his license was suspended for DWI. Officer noticed a medium odor of alcohol on defendant and that defendant had red and glassy eyes. 5 of 6 clues on HGN. No other SFSTs administered by officer. Defendant was not able to give a sufficient sample to register PBT. Defendant stated he drank 3 beers nine hours earlier.
Holding: PC to arrest for impaired driving existed.
STATE v. OVEROCKER – No PC found in the context of an accident that was not defendant’s fault
Facts: Defendant had four bourbons on the rocks (initially stated he had only two), was talking loudly, backed over a motorcycle despite bystanders yelling at him to stop backing his car, had an odor of alcohol coming from person, red and glassy eyes, and 2 positives on PBT. However, no problem balancing or walking, no slurred speech, the accident was not result of impairment (but of illegal parking by another person), and a witness (who had consumed 4 beers) testified he thought Defendant was fit to drive.
Holding: No probable cause to arrest for driving while impaired.
Notes and Quotes: The Court says in dicta that it is inappropriate for an officer to consider the actual numerical reading of a portable breath test in formulating probable cause. If an officer states that he took the numeric reading of a portable breath test into account (or the facts of the case clearly indicate this was the main basis for arrest) then it should be pointed out that it is impossible to determine the impact that factor had in the officer’s decision to arrest.
STATE v. PARISI – PC to arrest for DWI
Facts: As defendant’s vehicle approached a checkpoint, the officer could hear a disturbance between the vehicle’s occupants. The officer saw an open box of alcoholic beverage on the floorboard. The defendant had glassy, water eyes and emitted an odor of alcohol. Defendant told officer he had consumed 3 beers that evening. 6 clues on HGN. 1 clue on W&T. 2 clues on 1LS.
Holding: Defendant’s glassy eyes and odor of alcohol in additional to exhibiting clues indicating impairment on three field sobriety tests was sufficient to create probable cause to arrest for a DWI.
PASUT v. ROBERTSON – No PC exists where defendant was stopped for speeding, had an odor of alcohol, and had slurred speech
Citation: Pasut v. Robertson, 767 S.E.2d 151 (N.C. App. 2014) (unpublished)
Notes and Quotes: The court noted in dicta that speeding, an odor of alcohol, and slurred speech are insufficient to establish reasonable grounds (i.e. probable cause) to believe an implied consent offense has been committed. “Essentially, the only indication of impairment, as opposed to mere consumption of alcohol, was the finding that petitioner had slurred speech.”
STATE v. SEWELL – No PC where defendant had 6 of 6 clues on HGN a positive PBT and red glassy eyes but did well on W&T and 1LS and was steady on feet
Citation: State v. Sewell, 768 S.E.2d 650 (N.C. App. 2015) (unpublished)
Facts: Defendant was stopped at a checkpoint and no bad driving was observed. The officer noted defendant had red glassy eyes, a strong odor of alcohol emanating from Defendant’s vehicle, 6 of 6 clues on HGN, 2 positive alco-sensor tests, and admitted to drinking. The officer also noted the defendant had no trouble in retrieving license and registration, no clues on W&T, no clues on 1LS, was steady on her feet, and that defendant followed the officer’s instructions and was polite, cooperative and respectful at all times during the encounter.
Holding: No probable cause to arrest for driving while impaired.
Notes and Quotes: The State will argue that the officer in this case failed to confirm an odor of alcohol coming from the defendant’s person after the defendant exited the vehicle. In my opinion such an argument is unimportant given that the officer was able to obtain to positive PBTs.
STATE v. TEATE – Definition of PC
Citation: State v. Teate, 180 N.C. App. 601 (2006)
Notes and Quotes: “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. TOWNSEND – PC to arrest for DWI
Facts: Defendant arrived at a checkpoint, and officer noticed defendant emitted an odor of alcohol and had red, bloodshot eyes. Defendant told officer he had consumed several beers. 3 clues on HGN, 2 clues on W&T, 1 clue on 1LS. 2 positive PBT tests.
Holding: The odor of alcohol, red and bloodshot eyes, admission of drinking, clues on three different SFSTs, and 2 positive PBT results were sufficient facts to find PC existed for DWI arrest.
Notes and Quotes: The Court cited State v. Rodgers and State v. Fuller to support the proposition that a positive PBT can be used in formulating an opinion on impairment. This appears to contradict the plain language of 20-16.3 which says that the specific alcohol concentration reported by a PBT cannot be used by an officer in formulating probable cause.
4. Horizontal Gaze Nystagmus
STATE v. GODWIN – a witness need not be recognized explicitly by the trial court as an expert in order to give expert testimony on HGN
Holding: The trial court implicitly recognized a witness as an expert in HGN by allowing the witness to testify in detail about HGN and offer an opinion about the results of such testing. No error occurred from the trial court’s explicit lack of recognition of the expert as such.
STATE v. TORRENCE – Error occurred in admitting testimony on HGN without first determining whether the witness was qualified as an expert in such
Procedural Background: At trial the arresting officer testified without being qualified as an expert in HGN and over defense’s objection “if four or more clues exist that it’s a 77 percent chance that they are at a .10 or higher blood alcohol level.”
Holding: Prejudicial error occurred when an officer’s testified about HGN without the court first determining if he was qualified as to give expert testimony, and when the officer testified on the specific alcohol concentration level relating to the results of HGN testing.
STATE v. YOUNTS – A judge need not determine if HGN testing is the product of reliable principles and methods in qualifying an expert witnesses in HGN
Holding: In analyzing a witnesses ability to testify as an expert in Horizontal Gaza Nystagmus testing, the Court does not have to determine that HGN testing is the product of reliable principles and methods as required by Rule 702(a)(2).
Memorandums / Motions
Article: Attacking HGN
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5. Chemical Analysis
Memorandums / Motions
Memo: Retrograde Extrapolation
Article: Attacking the Breath Test
Article: Attacking Blood Alcohol Results
Article: Challenging Chemical Results Based on Denial of Right to a Witness
Form: Driver’s License Hearing Request
Form: Driver’s License Hearing Cancellation
5.1 Cases: Blood Draw – Warrant Exception – Exigent Circumstances
MISSOURI v. McNEELY – Dissipation of alcohol alone does not create warrant exception based on exigent circumstances
Holding: Dissipation of alcohol alone does not create per se exigent circumstances justifying a warrantless taking of blood from a person suspected of impaired driving. Rather, a warrantless blood test of a drunk-driving suspect must be determined on a case-by-case basis on the totality of the circumstances.
MITCHELL v. WISCONSIN - Cases involving an unconscious driver “almost always permits a blood test without a warrant” under the exigent circumstances exception to the warrant requirement.
Holding: The fact that a suspect of driving while impaired is unconscious is a factor that weighs in favor of a finding that exigent circumstances exist sufficient to justify a warrantless blood draw of the suspect to determine the blood alcohol concentration.
STATE v. BURRIS – Obtaining a warrant would have taken up to 90 minutes and exigent circumstances existed to allow officer to request a blood draw
Facts: The charging officer was alone (no other officer to obtain a warrant or stay with defendant). The Defendant was initially taken to a police station where he refused breath testing. He was then taken to a hospital, which was 4 minutes from the station and approximately 8 minutes from the magistrate’s office. The evidence showed that only 1 magistrate would have been on duty and that obtaining a warrant would have taken between 60 and 90 minutes.
Holding: Exigent circumstances existed sufficient to create a warrantless search of defendant’s blood.
Notes and Quotes: The court appears to affirm on the basis that the trial court’s findings were supported by competent evidence, “although evidence exists that could have supported a contrary finding.” This appears to indicate that this was a close call, but that the trial judge is in the best position to hear and weigh the evidence presented.
STATE v. DAHLQUIST – obtaining a warrant would have taken up to 4 or 5 hours and exigent circumstances for a blood draw existed
Facts: A Defendant refused breath testing in a mobile alcohol unit at a checkpoint and then again refused blood testing when he was subsequently taken to a hospital. In support of its finding of exigent circumstances, the Court noted that the officer estimated that without a warrant it would take 45-60 minutes to draw blood; if the officer sought to obtain a warrant he estimated it would take 4-5 hours.
Holding: Exigent circumstances existed sufficient to create a warrantless search of defendant’s blood.
Notes and Quotes: Despite the Dahlquist Court finding exigent circumstances the Court laid out two faults of the officer that should be explored by the defense in detail moving forward:
- Did the officer seek to obtain a warrant using “video transmission”?
- Did the officer call the hospital and/or a magistrate in an attempt to figure out the amount of time it would take to draw blood and get a warrant?
STATE v. GRANGER – Exigent circumstances existed in the context of a medical emergency following an accident
Facts: The suspected impaired driver was injured in an accident and subsequently transported by emergency vehicle to the hospital. The charging officer was by himself and would have had to leave the defendant unattended for a minimum of 40 minutes to obtain a search warrant, and it would be difficult to get an accurate chemical result if Defendant were given medications prior to obtaining chemical analysis.
Holding: Exigent circumstances existed sufficient to create a warrantless search of defendant’s blood.
STATE v. ROMANO – No exigent circumstances due to multiple officers involved in investigation, proximity to the magistrates office, and ease of fill-in-the-blank warrant application
Facts: Defendant was taken to the hospital due solely to a high alcohol concentration and thereafter become combative according to officers and was sedated. Multiple officers were on scene and at the hospital.
Holding: Exigent circumstances did not exist sufficient to create a warrantless search of defendant’s blood.
Notes and Quotes: In determining that no exigency existed the Court noted, that (1) multiple officers were present to assist in the investigation, (2) an officer could have left the hospital to drive to the magistrate’s office which was only a few miles away, (3) the charging officer was familiar with the warrant process and knew that it involved fill-in-the-blank forms that are not time-consuming, and (4) that magistrates were on duty and available during the relevant time period.
5.2 Cases: Implied Consent
STATE v. HATLEY – No magic language required by witness coming to view breath testing
Facts: The charging officer knew the defendant had contacted a witness, her daughter, and also knew that the witness was on her way to the Sheriff’s office. When the daughter arrived at the Sherriff’s office, she told the front desk officer: “I am here for Debbie Hatley, who was charged with DUI.” The witness never informed anyone at the jail that she was there to act as a witness to the breath test. The State argued that since the witness never told anyone at the jail that she was there to act as a witness to a breath test, the Defendant’s rights were not violated.
Holding: The witness timely arrived and made reasonable efforts to gain access to the defendant, and therefore the defendant’s statutory right to a witness was violated.
Notes and Quotes: “We find no authority for the proposition that a potential witness to an intoxilyzer test must state unequivocally and specifically that he or she has been called to view the test before the witness is permitted to observe the test. Uncontradicted evidence shows that the witness timely arrived; identified and described to the front desk officer the person she was there to see; and told the front desk officer that the person was there for ‘a DUI.’”
STATE V. FERGUSON – Lays out requirements for showing a statutory violation of right to have a witness to chemical testing
Holding: To show a statutory violation of the right to have a witness present during chemical testing under implied consent laws the defense must show: (1) the Defendant requested to have a witness present during testing procedures; (2) the witness timely arrived to view testing procedures; and (3) the witness made reasonable efforts to gain access to the Defendant.
Notes and Quotes: A denial of access to a witness may amount to a flagrant violation of a person’s rights (and therefore a remedy of dismissal) where the sole evidence from the state is the personal observations of authorities.
STATE v. ROMANO - N.C.G.S. § 20-16.2(b) allowing an unconscious person’s blood to be taken without a warrant is unconstitutional
Facts: Defendant was arrested and charged with DWI and then transported to the hospital. No search warrant was obtained and there were no exigent circumstances for not obtaining a warrant. At the hospital, the defendant was sedated and then his blood was taken after he was unconscious.
Holding: N.C.G.S. § 20-16.2(b) allows a blood draw of an unconscious individual without a warrant and creates an unconstitutional per se exception to the warrant requirement.
Notes and Quotes: Although the case was primarily about striking down N.C.G.S. § 20-16.2(b) the Court engages in a great discussion of consent in the context of implied consent. “[W]hether a consent to a search was in fact ‘voluntary’ . . . is a question of fact to be determined from the totality of all the circumstances.” Further, the State has the burden to prove that “consent was, in fact, freely and voluntarily given.” Consent is not voluntary if it is “the product of duress or coercion, express or implied.” A court’s decision regarding whether a suspect’s consent was voluntary is based on “a careful scrutiny of all the surrounding circumstances” and does not “turn on the presence or absence of a single controlling criterion.” “The standard for measuring the scope of a suspect’s consent under the Fourth Amendment is that of ‘objective’ reasonableness.”
STATE v. SHADDING – No testing can be performed by officer before 30 minutes from time of rights advisement unless defendant has waived his right to an attorney/witness
Citation: State v. Shadding, 17 N.C. App. 279, 194 S.E.2d 55 (1973)
Notes and Quotes: If it is determined that defendant was notified of his rights under N.C.G.S. § 20-16.2, and he did not waive them, the results of the test are admissible in evidence only if the testing was delayed (not to exceed thirty minutes) to give defendant an opportunity to exercise such rights. The officer must wait 30 minutes unless the defendant waives his right to have an attorney present.
STATE v. SHEPLEY - No requirement for for a witness under 20-16.2 if a blood draw is conducted pursuant to a search warrant
Facts: Defendant was arrested for DWI and taken to jail where he was requested to give a breath sample. Defendant refused. The officer the got a search warrant to draw blood and a blood sample was tested by SBI pursuant to this warrant.
Holding: There was no requirement that defendant have access to a witness under 20-16.2 when the chemical analysis was done according to a search warrant.
STATE v. WILLIAMS – An officer must re-advise defendant of his rights under N.C.G.S. § 20-16.2 if the officer requests a second chemical analysis
Facts: Defendant was arrested and transported to the sheriff’s office for breath testing. Defendant was advised of his rights under N.C.G.S. § 20-16.2. After a 30 minute waiting period the defendant refused breath testing. The charging officer then requested a blood kit and asked the defendant to give a blood sample by consent which the defendant did. Prior to blood testing the officer did not re-advise defendant of his rights under N.C.G.S. § 20-16.2.
Holding: Defendant’s rights under N.C.G.S. § 20-16.2 were violated and the blood results were suppressed.
Notes and Quotes: “Defendant was advised of his implied consent rights and thereafter refused to take the initial chemical breath test. When the State then sought to administer a second chemical analysis, a blood test, defendant was not advised of his implied consent rights as to that test. A failure to advise cannot be deemed a mere technical and insubstantial violation.”
5.3 Cases: Refusal
BRACKETT v. THOMAS – The Court cannot look beyond the Findings of Fact of the DMV Hearing Officer unless they are in dispute
Citation: Brackett v. Thomas, (N.C. 2018)
Holding: The Court of Appeals erred when it conducted its own investigation of the record on appeal instead of narrowly reviewing whether the uncontested findings of fact from the DMV Hearing Officer supported the Hearing Officer’s Conclusions of Law.
Notes and Quotes: Challenge the Hearing Officer’s findings of fact if they are in dispute. The record as laid out by the Court of Appeals appears to clearly show that the DMV Sustaining the Petitioner’s license revocation was in error, but the Supreme Court pointed out that the Hearing Officer’s Findings of Fact were not disputed and thus could not be disturbed on appeal and it was not the business of the Court to look at the record beyond the findings as they were not in dispute.
BROWER v. KILLENS – A Court’s finding of no PC in a criminal DWI trial precludes the DMV from any alternative finding in a DMV refusal hearing
Holding: A finding of no probable cause by a criminal court precludes any subsequent litigation on whether there were reasonable grounds to believe an implied consent offense had been committed in a subsequent DMV hearing.
Notes and Quotes: “There is no legal distinction between probable cause to arrest in a criminal proceeding and ‘reasonable grounds to believe’ that the accused was driving while impaired in a license revocation hearing.”
“Put simply, the quantum of proof necessary to establish probable cause to arrest in criminal driving while impaired cases and civil license revocation proceedings, notwithstanding the different burdens on the remaining elements, is virtually identical.”
BURRIS v. THOMAS – No requirement that a refusal by defendant must make chemical analysis impossible in order for a suspension for “willful refusal” to occur
Facts: Petitioner/defendant was involved in an accident. After investigation and subsequent transport to the hospital for medical attention, the charging officer requested petitioner to give a sample of blood. Petitioner refused. The officer then immediately compelled an involuntary blood draw for chemical analysis.
Holding: There is no requirement that, in order to be a “willful refusal,” the refusal must frustrate law enforcement’s ability to obtain the chemical analysis.
Notes and Quotes: “The fact that law enforcement might then conduct an involuntary chemical analysis has no bearing on the analysis of the request for a voluntary one.” (emphasis in original)
ETHERIDGE v. PETERS – Elements of a Willful Refusal
Holding: “[A] willful refusal to submit to a chemical test within the meaning of 20-16.2(c) occurs where a motorist: (1) is aware that he has a choice to take or to refuse the test; (2) is aware of the time limit within which he must take the test; (3) voluntarily elects not to take the test; and (4) knowingly permits the prescribed thirty-minute time limit to expire before he elects to take the test.”
JOYNER v. GARRETT – Definition of a Willful Refusal
Notes and Quotes: “In Black’s Law Dictionary Refusal is defined as ‘the declination of a request or demand, or the omission to comply with some requirement of law, as the result of a positive intention to disobey.”
“Willful refusal . . . embrace[s] the concept of a conscious choice purposely made.”
POWERS v. TATUM – Collateral estoppel did not preclude a DMV officer from finding a willful refusal despite a criminal Court having already heard evidence of the refusal and dismissing the DWI case
Holding: Collateral estoppel did not prevent the DMV from upholding a refusal suspension despite the petitioner/defendant’s criminal charges having been dismissed for constitutional and statutory violations of the defendant’s right to a witness.
Notes and Quotes: The main reason why collateral estoppel was not applicable in this case is that the criminal judge made no specific findings about the issue of a willful refusal. [Practice tip: make sure you get a written order from the judge when you successfully argue a motion to suppress or dismiss that could impact a subsequent DMV hearing].
The court also noted “the fundamental difference between criminal prosecutions and civil license revocation proceedings.”
“Therefore, assuming arguendo the district court had found the State had failed to prove beyond a reasonable doubt that petitioner willful refused to submit to the Intoxilyzer test to determine his blood alcohol content, the State would not have been precluded from attempting to prove the same by a preponderance of the evidence at a civil revocation proceeding.” [Compare this with State v. Summers below]
ROCK v. HIATT – Burden of proof in a DMV Refusal Hearing
Notes and Quotes: In a DMV hearing it is the Division that has the burden of proving that the petitioner willfully refused to submit to a chemical analysis.
STATE v. SUMMERS – Where a civil Court finds that a willful refusal had not occurred a judge presiding over a subsequent criminal hearing cannot find to the contrary
Holding: Where a superior court judge finds that there was no willful refusal on a DMV appeal, this ruling is binding in any subsequent criminal proceeding under the doctrine of collateral estoppel.
TEDDER v. HODGES – Court found that a refusal occurred despite evidence that petitioner had attempted to blow but did not give a sufficient sample even though he had bronchitis and his nose had been injured in a fight
Facts: Petitioner testified that he suffers from bronchitis and that he could not blow into the machine on the night in question because of his bronchitis and because his nose had been injured during a fight on that date. He insisted that he tried to blow because he knew he would lose his license and would lose his job if he was written up as a refusal.
Holding: “While this evidence could have led the trial court to determine that petition did not willfully refuse to blow into the breathalyzer machine, we conclude that there was still competent evidence to support the trial court’s conclusion that petitioner willfully refused.” (emphasis added)
5.4 Cases: Confrontation Clause – Blood – Chain Of Custody
BULLCOMING v. NEW MEXICO - surrogate chemical analyst testimonial violated the Confrontation Clause
Facts: During a DWI trial the prosecution did not call as a witness the analyst who signed the certification. Instead, the state called another analyst who was familiar with the laboratory’s testing procedures, but had not participated in or observed the testing of defendant’s blood sample.
Holding: A surrogate analyst could not testify on behalf of the analyst who actually performed or observed the testing without violating the Confrontation Clause, unless the original analyst is unavailable and the defense had a prior opportunity to cross-examine that analyst.
Notes and Quotes: “[The State] could have avoided any Confrontation Clause problem by asking [a new certifying analyst] to retest the sample, and then testify to the results of his retest rather than to the results of a test he did not conduct or observe.”
CRAWFORD v. WASHINGTON - landmark case analyzing the Confrontation Clause
Holding: The Confrontation Clause makes inadmissible testimonial statements by witnesses who are not subject to cross-examination at trial unless the witness is unavailable and there has been a prior opportunity for cross-examination.
MELENDEZ-DIAZ v. MASSACHUSETTS - a lab report cannot be admitted unless a defendant has the opportunity to cross-examine the analyst
Facts: Certificates of forensic analysis were presented at a drug trial explaining that the substance found on defendant was cocaine. No analyst was called by the state and the defendant objected to the admission of the certificates based on the Confrontation Clause.
Holding: In order to introduce a lab report, the Confrontation Clause requires that the Defendant have the opportunity to confront the lab analyst.
Notes and Quotes: Justice Scalia delivered a masterful opinion with some powerful quotes for the Defense:
“A forensic analyst responding to a request from a law enforcement official may feel pressure—or have an incentive—to alter the evidence in a manner favorable to the prosecution.”
“Confrontation is designed to weed out not only the fraudulent analyst, but the incompetent one as well.”
“More fundamentally, the Confrontation Clause imposes a burden on the prosecution to present its witnesses, not on the defendant to bring those adverse witnesses into court.”
“The analysts who swore the affidavits provided testimony against Melendez–Diaz, and they are therefore subject to confrontation; we would reach the same conclusion if all analysts always possessed the scientific acumen of Mme. Curie and the veracity of Mother Theresa.”
STATE v. ORTIZ-ZAPE - an analyst who has an independent opinion based on another analyst's lab report, may testify without violating the Confrontation Clause.
Procedure: At trial the State sought to introduce Tracey Ray of the CMPD crime lab as an expert in forensic chemistry. During voir dire proceedings on the matter, defendant sought to exclude admission of a lab report created by a non-testifying analyst and any testimony by any lab analyst who did not perform the tests or write the lab report. The testifying analyst explained that she had conducted a “peer review” on the chemical analysis performed by the analyst who had actually conducted the testing (but who did not testify) and that she had reviewed all the lab notes and data from the testing instrument.
Holding: When an expert states her own opinion, without merely repeating out-of-court statements, the expert is the person whom the defendant has the right to cross-examine.
Notes and Quotes: “We emphasize that the expert must present an independent opinion obtained through his or her own analysis and not merely ‘surrogate testimony’ parroting otherwise inadmissible statements.”
STATE v. CRAVEN - surrogate testimony is not allowed and the Confrontation Clause was violated
Facts: Defendant was charged with crimes related to three cocaine buys. Three different crime lab analysts tested the cocaine related to these buys (each one testing only one of the three buy dates). At trial, only of the three lab analysts testified. She testified not only about the cocaine she had tested, but also testified about the testing done by the two other analysts.
Holding: Because the testifying analyst did not give her own independent opinion, but rather gave “surrogate testimony” reciting the testing analysts’ opinions the Confrontation Clause was violated.
5.5 Cases: Hospital Blood
STATE v. DRDAK – the State must lay a proper foundation in order to admit “other competent evidence” of a defendant’s BAC
Facts: The charging officer arrived on an accident scene to find the defendant had already been transported to the hospital. The officer observed at the hospital that the defendant was seriously injured and had a slight odor of alcohol. The officer was unable to form an opinion that defendant was impaired. Defendant’s blood was drawn by an experienced phlebotomist and analyzed at the hospital by a medical technologist. A whole blood (not serum) BAC was reported by the hospital. The Winston-Salem Journal reported the hospital BAC in a newspaper. Subsequent to this publication the State filed a motion to compel disclosure of medical records from the hospital.
Holding: A hospital blood sample may qualify as “other competent evidence” of a defendant’s BAC level under N.C.G.S. § 20-139.1(a) as long as the State lays a proper foundation as to its admissibility.
Notes and Quotes: In laying a proper foundation supporting admissibility of a hospital BAC the State showed: (1) the proximity of time between the accident and the blood draw; (2) an experienced phlebotomist withdrew the blood; and (3) that a trained laboratory technician analyzed the blood sample using a Dupont Automatic Clinical Analyzer which was capable of testing either whole blood or serum.
STATE v. SMITH – No error by trial court in allowing a BAC level contained in hospital records that were obtained by the State pursuant to a search warrant
Facts: Officer investigating a crash found defendant lying on the ground with one arm pinned beneath a “badly damaged” motorcycle. The charging officer spoke with defendant at the hospital where he noticed an odor of alcohol, bloodshot eyes, and slurred speech. He requested a blood sample from defendant and defendant told him to “go get a warrant.” The charging officer subsequently applied for and received a search warrant to obtain medical records from the hospital which included a BAC.
Holding: A search warrant that allows law enforcement to obtain medical records does not violation N.C.G.S. § 8-53 or N.C.G.S. § 90-21.20B
5.6 Cases: Retrograde Extrapolation
STATE v. BABICH - The State’s Retrograde Extrapolation Expert did not satisfy Rule 702
Facts: The State’s retrograde extrapolation expert conceded that there was no factual information in this case from which she could assume the Defendant was in a post-absorptive state at the time of the initial traffic stop. The expert testified that his retrograde extrapolation analysis only works if the expert assumed the Defendant was in a post-absorptive state.
Holding: Under Daubert, an expert opinion that extrapolates a criminal defendant’s blood alcohol concentration where the expert assumes the defendant was in a post-absorptive state, and the expert had no evidence of the same, violates Rule 702.
Notes and Quotes: “[W]here, as here, the expert concedes that her opinion is based entirely on a speculative assumption about the defendant—one not based on any actual facts—the testimony does not satisfy the Daubert ‘fit’ test because the expert’s otherwise reliable analysis is not properly tied to the facts of the case.”
6. Custodial Release (Knoll)
STATE v. KNOLL – The magistrate’s violations of defendants’ rights regarding release and opportunity to communicate with counsel and friends warranted dismissal of the DWI charges
Facts: 3 Defendants Combined in Court’s Analysis
KNOLL: The defendant was arrested for DWI at 1:15 p.m. An intoxilyzer test was administered at 2:31 p.m. and defendant blew a .30. He was taken in front of a magistrate between 4:00 p.m. and 5:00 p.m. and a $300.00 secured bond was set. Knoll spoke by telephone with his father around 5:00 p.m. Knoll’s father said his son was “oriented and coherent and not noticeably impaired in either his manner of speech or in the substance of what he said.” Knoll’s father did not post bond until later that night because the magistrate informed him that he would not be released until 11:00 p.m. Knoll’s total time in custody from the time of initial stop until his time of release was approximately 10 hours.
WARREN: Defendant Warren was stopped at approximately 10:11 p.m. After being arrested for DWI, an intoxilyzer test was administered at 11:08 p.m. and defendant blew a .25. The magistrate set a $500 secure bond. Two individuals arrived at the jail between 11:00 p.m. and 11:30 p.m. and had the opportunity to speak with the defendant in person and observe his condition. They were told that defendant would not be released until 6:00 a.m. One of these individuals came back to the jail at 8:00 a.m. and posted defendant’s bond. Warren’s time in custody between the stop and his release was approximately 10 hours.
HICKS: Also in Wake County, Defendant Hicks was stopped on April 28, 1984 and arrested for DWI at 12:45 a.m. Defendant blew a .18 at the jail. Defendant was allowed to call his wife from the jail at about 1:30 a.m. Defendant’s bond was set at $200.00 and, despite the fact that Defendant had over $2,000.00 on his person, he was not released until about 6:00 a.m. Hicks’ total time in custody between his stop and release was approximately 5 hours and 15 minutes.
Holding: The delay in release of each defendant following a DWI arrest and the lack of proper advisement of important rights by the magistrate was so prejudicial as to warrant dismissal of these cases.
Notes and Quotes: “Upon a defendant’s arrest for DWI, the magistrate is obligated to inform him of the charges against him, of his right to communicate with counsel and friends, and of the general circumstances under which he may secure his release.”
“To assume that his lost opportunity to gather evidence in his behalf was not prejudicial is to assume that which is incapable of proof. The Court cannot assume the infallibility and credibility of the State’s witnesses or the certitude of their tests.”
“Each defendant’s confinement in jail indeed came during the crucial period in which he could have gathered evidence in his behalf by having friends and family observe him and form opinions as to his condition following arrest. This opportunity to gather evidence and to prepare a case in his own defense was lost to each defendant as a direct result of a lack of information during processing as to numerous important rights and because of the commitment to jail…. That the deprivations occurred through the inadvertence rather than the wrongful purpose of the magistrate renders them no less prejudicial.”
STATE v. LABINSKI – Although defendant proved that magistrate did not make sufficient findings regarding defendant’s detention, the defendant failed to show prejudice warranting a dismissal
Facts: Defendant was arrested for DWI. On the way to the jail she texted a friend to let him know she was in trouble. At the jail, the defendant did not request a witness for chemical testing. Around the time of testing defendant saw four of her friends arrive at the jail. She did not ask to speak with any of them. The magistrate informed the defendant of the general circumstances under which she could obtain release and of her right to communicate with friends or legal counsel. Defendant refused medical attention at the jail. After her appearance in front of the magistrate judge, defendant was given her cell phone so she could retrieve numbers of friends and counsel. Defendant never attempted to call a bail bondsman. Defendant was released approximately 2 hours after chemical testing.
Holding: Although the release in this case was not timely, no prejudice was shown that would warrant a dismissal.
Notes and Quotes: This case is extremely helpful in establishing that release was not properly delayed where the magistrate did not make findings under N.C.G.S. § 15A-534(b). The magistrate “substantially violated defendant’s statutory right to pretrial release, and the trial court erred by its conclusion of law to the contrary.”
This violation occurred despite the fact that there was only a one and a half hour hold between the first appearance in front of the magistrate and release.
STATE v. RASMUSSEN – No error occurred because defendant failed to show substantial prejudice of rights and trial court suppressed evidence of SFST and did not submit a theory of appreciable impairment to the jury
Holding: No prejudicial error occurred from the defendant’s lack of witness, because the trial court, on its own motion, suppressed the introduction of the field sobriety tests at trial and also dismissed the appreciable impairment theory of DWI and submitted the DWI case to the jury solely on the .08 prong of impairment.
Notes and Quotes: If the Court finds a statutory violation occurred but that such a violation did not substantially prejudice defendant, the appropriate response is to suppress evidence of standardized field sobriety testing and the officers observations of the defendant and let the State proceed only on a theory of per se impairment. This could be extremely helpful especially in a willful refusal case.
7. Affirmative Defenses to DWI
STATE v. CLOWERS - an analysis of the defense of unconsciousness
Facts: Defendant took anxiety medication and had a couple of alcoholic drinks, but then blacked out and did not remember anything until he regained consciousness at the jail cell.
Holding: The trial court did not err in denying defendant’s request for a jury instruction on the defense of unconsciousness or automatism.
Notes and Quotes: The defense of unconsciousness or automatism is a “complete, not a partial, defense to a criminal charge.” The defense can be utilized by somnambulists (sleepwalkers), people suffering from fever or delirium, epilepsy, a blow on the head, and people who involuntary take drugs or alcohol. If there is voluntary intoxication, the defense is unavailable.
STATE v. HIGHSMITH - an analysis of the defense of involuntary intoxication
Holding: The trial court did not err by failing to instruct the jury on the defense of involuntary intoxication.
Notes and Quotes: The “Defendant presented no evidence that he was forced to consume the medication he took; rather he asserts that he took the substance voluntarily, but did not know it was intoxicating. These facts do not support an instruction on involuntary intoxication.” The Defendant needed to show that he was not aware the he was consuming an impairing substance.
STATE v. THOMAS - public policy behind the necessity defense
Citation: State v. Thomas, 103 N.C. App. 264, 405 S.E.2d 214 (1991)
Notes and Quotes: The rationale behind the necessity defense is based upon the public policy that “the law ought to promote the achievement of higher values at the expense of lesser values, and [that] sometimes the greater good for society will be accomplished by violating the literal language of the criminal law.” “[I]f the harm which will result from compliance with the law is greater than that which will result from violation of it, [a person] is justified in violating it.”
STATE v. HUDGINS - an analysis of the necessity defense in the context of a defendant attempting to stop a driverless moving car
Facts: An intoxicated individual jumped into a moving driverless car in an attempt to stop the vehicle.
Holding: The trial court committed reversible error by not giving an instruction on the necessity defense.
Notes and Quotes: The Court outlined the elements of the defense of necessity:
- reasonable action,
- taken to protect life, limb, or health of a person, and
- no other acceptable choices available.
The Court found that the vehicle’s potential to hit a pedestrian or motorist was enough to meet the second requirement, without concern for an actual known person being harmed.
STATE v. MILLER - an analysis of necessity in the context of a violent altercation
Citation: State v. Miller, (N.C. App. 2018)
Facts: During a violent altercation outside a bar defendant drove way from potential assailants in a golf cart.
Holding: The trial court committed reversible error by not giving an instruction on the necessity defense.
Notes and Quotes: “The defense of necessity is recognized as a defense separate and distinct from the defense of duress.” The Court concluded specifically that fear in not a relevant factor or element of the necessity defense. The Court also found that while the circumstances creating a defense of necessity or duress may dissipate, “two-tenths of a mile was not, as a matter of law, an unreasonable distance to drive before pulling off the highway.”