This article is written as an outline for North Carolina DWI attorneys on how to attack a breath test when your client was denied timely release from custody and/or the magistrate failed to adequately inform your client of the conditions by which your client could obtain his release.

Remedy for Constitutional Violation

The court on motion of the defendant must dismiss the charges stated in a criminal pleading if it determines that the defendant’s constitutional rights have been flagrantly violated and there is such irreparable prejudice to the defendant’s preparation of his case that there is no remedy but to dismiss the prosecution. N.C.G.S. § 15A-954(a)(4).

Moreover, the Courts have ruled that even a statutory violation can be the basis for a dismissal. If the provisions of N.C.G.S. § 15A-534 and N.C.G.S. § 15A-534.2 “are not complied with by the magistrate, and the defendant can show irreparable prejudice directly resulting from a lost opportunity to ‘gather[] evidence in [sic] his behalf by having friends and family observe him and form opinions as to his condition following arrest . . . and to prepare a case in his own defense,’ the DWI charge must be dismissed.” State v. Labinski, 188 N.C. App. 120, 654 S.E.2d 740, 744 (2008) (quoting State v. Knoll, 322 N.C. 535, 547, 369 S.E.2d 558, 565 (1988)).

In the situation where a Defendant has been denied opportunity to communicate with witnesses or gain timely release from custody, the remedy has been found appropriate by the courts.

“The denial of access to a witness in this case – when the State’s sole evidence of the offense is the personal observations of the authorities – would constitute a flagrant violation of defendant’s constitutional right to obtain witnesses under N.C. Const. Art I. Sec. 23 as a matter of law and would require that the charges be dismissed.” State v. Ferguson, 90 N.C. App. 513, 519 (1988). See also State v. Hill, 277 N.C. 547, 178 S.E.2d 462 (1971) (defendant’s attorney was denied access to defendant after posting bail and asking the jailer to see him. The court held, because time is of the essence when one is taken into police custody for an offense of which intoxication is an essential element, defendant was unconstitutionally denied the opportunity to confront the State’s witnesses with other testimony).

Several Court of Appeals decisions over the last couple decades have upheld trial courts crafting their own remedies to fix a constitutional violation based on State v. Knoll. See e.g. State v. Simmons, 164 N.C. App. 601, 596 S.E.2d 473 (2004) (unpublished decision).

Instead of dismissal these decisions argue that an appropriate and less drastic remedy is suppression of evidence of appreciable impairment and particularly standardized field sobriety tests. Remind your court that the only appropriate (and for that matter legal) remedy for a constitutional violation is dismissal.

Landmark Decision: STATE VS. KNOLL

The leading North Carolina Supreme Court case on point is the decision in State v. Knoll, which is also the last definitive NC Supreme Court ruling on this issue. There have been a number of Court of Appeals decisions since Knoll that have found either no violation of defendant’s rights or no showing of prejudice by the Defendant so remind your judge that the last authoritative statement on this subject from the N.C. Supreme Court is State v. Knoll. Knoll involved three cases State v. Knoll, State v. Warren, and State v. Hicks.

Facts in the Knoll Case

In Knoll the defendant was arrested for DWI at 1:15 p.m. Id. at 537. An intoxilyzer test was administered at 2:31 p.m. and defendant blew a .30. Id. at 537. 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. Id. at 537. Knoll spoke by telephone with his father around 5:00 p.m., who 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.” Id. at 538. 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. Id. at 538. Knoll’s total time in custody from the time of initial stop until his time of release was approximately 10 hours.

Facts in the Warren Case

Defendant Warren was stopped at approximately 10:11 p.m. Id. at 539. After being arrested for DWI an intoxilyzer test was administered at 11:08 p.m. and defendant blew a .25. Id. at 539. The magistrate set a $500 secure bond. Id. at 539. 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. Id. at 539. 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. Id. at 539. Warren’s time in custody between the stop and his release was approximately 10 hours.

Facts in the Hicks Case

Also in Wake County, Defendant Hicks was stopped on April 28, 1984 and arrested for DWI at 12:45 a.m. Id. at 541. Defendant blew a .18 at the jail. Id. at 541. Defendant was allowed to call his wife from the jail at about 1:30 a.m. Id. at 541. Id. at 541. 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. Id. at 541. Hicks’ total time in custody between his stop and release was approximately 5 hours and 15 minutes.

NC Supreme Court’s Analysis of Violation of Defendant’s Rights

“In each of the three [Knoll] cases, the trial judge made specific findings to the effect that the defendant created no disturbance and was cooperative and polite; that there was no clear and convincing evidence that, if he were released, he would create a threat of physical injury to himself or others or of damage to property; and that therefore the defendant should have been released.” Id. at 544. “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.” Id. at 547.

This opportunity to gather evidence must happen very quickly after an arrest occurs. The Supreme Court has stated as follows:

When one is taken into custody for an offense in which intoxication is an essential element, time is of the essence. Intoxication does not last. Ordinarily a drunken man will “sleep it off” in a few hours. Thus, if one accused of driving while intoxicated is to have witnesses for his defense, he must have access to his counsel, friends, relatives, or some disinterested person within a relatively short time after his arrest. . . .

Defendant’s guilt or innocence depends upon whether he is intoxicated at the time of his arrests. His condition then was the crucial and decisive fact to be proven. Permission to communicate with counsel and friends is of no avail if those who come to jail in response to a prisoner’s call are not permitted to see for themselves whether he is intoxicated. In this actual situation, the right of a defendant to communicate with counsel and friends implies, at the very least, the right to have them see him, observe and examine him, with reference to his alleged intoxication.

Hill, 277 N.C. at 553 (emphasis added).

In 2008, the N.C. Court of Appeals determined that a substantial violation of defendant’s statutory right to pretrial release had occurred where there was no evidence or finding of fact that the magistrate determined by clear and convincing evidence that defendant would present a danger to persons or property if released. Labinski, 654 S.E.2d at 744-745.

NC Supreme Court’s Analysis of Prejudice

The Supreme Court also discussed the prejudice that a defendant must show in asserting a violation of his rights to release and accessing witnesses and evidence in his own defense. Rather than showing hard and fast evidence of prejudice, the Supreme Court simply required the defendant to show that he lost opportunities to prepare for his defense due to delays caused by the State. Knoll. at 547-48 (“The lost opportunities in all three cases, to secure independent proof of sobriety, and the lost chance, in one of the cases, to secure a second test for blood alcohol content constitute prejudice to the defendants in these cases.”) The Supreme Court explained why lost opportunity equals prejudice: “[t]o 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.” Id. at 543.

Red Herrings Argued by the State

Red Herring 1: What about Inadvertence of Statutory Violation?

Does it matter whether the State intentionally deprived a defendant of their rights or did so inadvertently by mistake or busyness? The Supreme Court answers definitively no. “That the deprivations occurred through the inadvertence rather than the wrongful purpose of the magistrate renders them no less prejudicial.” Id. at 548. “[W]hen an officer’s blunder deprives the defendant of his only opportunity to obtain evidence which might prove his innocence, the State will not be heard to say that such evidence did not exist.” Hill at 553.

Red Herring 2: How Does a Breath or Blood Alcohol Concentration Impact Prejudice?

When the Supreme Court decided Hill in 1971 there was no per se law in terms of establishing a particular alcohol concentration to show impairment. Therefore, under Hill, prejudice was assumed to accompany a violation of Defendant’s statutory rights.

However, Knoll was decided after the DWI laws allowed the State to use a chemical analysis result (albeit a .10) to be sufficient evidence of impairment. In Knoll, the alcohol concentrations were well above the legal limit (at the time .10): .30, .25, and .18. Despite these high chemical results, the Court found that given the violation of defendant’s rights to communicate with friends and family and thereby gain independent evidence of sobriety was prejudice sufficient to warrant DISMISSAL.

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