On today’s episode of the podcast Jake looks back at the most influential North Carolina DWI cases of the past year. Abstracts of the cases are found below.

 

CHECKPOINTS

 

State v. Alvarez, 894 S.E.2d 737, No. 278PA21 (N.C. 2023)

 

Facts: Rowan County Sheriff’s Office set up a checkpoint. The checkpoint was purportedly in response to a high-speed fatality accident that had occurred at that location two days earlier. No officers on scene were checking speeding. Defendant’s passenger side wheels came off the road and onto the grass prior to stopping at the checkpoint. One of the officers on scene testified that this behavior led him to believe the Defendant might be driving while impaired.

 

Procedural History: Both the trial court (superior court) and the Court of Appeals (State v. Alvarez, 860 S.E.2d 45, 2021-NCCOA-375 (2021) (unpublished) found the checkpoint did not have a proper primary programmatic purpose. The Court of Appeals appears to call into question a checkpoint set up for “all chapter 20 violations” as possible general crime control.

 

Holding: The Supreme Court reversed the Court of Appeals finding that there was reasonable suspicion to stop the vehicle due to the lane violation but did not address the findings of the Court of Appeals regarding the Constitutionality of the checkpoint. Use the Court of Appeals opinion to attack a checkpoint based on the lack of a proper primary programmatic purpose.

 

REASONABLE SUSPICION

 

Sate v. Peak, 892 S.E.2d 925, No. COA23-312 (N.C. App. 2023) (unpublished)

 

Facts: Stopping officer was highly specialized in DWI investigations. Defendant delayed for 10-seconds at a traffic light after it turned green. There were two open bars within a quarter mile radius of the stop location. Defendant crossed over the yellow lines with both left tires into the opposite lane of travel. Defendant was travelling at one to two miles per hour.

 

Holding: Reasonable suspicion existed to stop Defendant.

 

PROBABLE CAUSE

 

State v. Woolard, 894 S.E.2d 717, No. 208PA22 (N.C. 2023)

 

Facts: Officer saw Defendant cross centerline six or seven times. Officer active blue lights and Defendant quickly stopped his vehicle. Upon initial approach, Defendant “seemed normal” to the officer. After asking about the driving, Defendant told the officer that there were bees in his truck that he was trying to get out. As they spoke, the officer noticed an odor of alcohol, flushed cheeks, and red and glassy eyes. Defendant seemed coherent to the officer. Defendant admitted to having “a couple beers earlier.” Officer administered two PBTs, but these were excluded from consideration because they were not performed correctly. Officer also administered the HGN test, during which he saw six of six clues. Officer placed Defendant under arrest for DWI.

 

Procedural History: Defendant was granted a preliminary indication that no PC existed in District Court. The State appealed to Superior Court where the Defendant again prevailed and the case was sent back to District Court for a final order granting suppression. After the District Court entered its final order the State filed a petition for writ of certiorari to the Court of Appeals which was denied. The State then filed a petition for writ of certiorari to the North Carolina Supreme Court which was granted. There was no transcript of District Court proceedings or record on appeal for the Supreme Court to review.

 

Holding: The Supreme Court found it had discretionary authority to rule on the merits of the case and found probable cause.

 

EXPERT TESTIMONY

 

State v. Williams, 891 S.E.2d 499, No. COA22-1015 (N.C. App. 2023) (unpublished).

 

Holding: It was not error for the trial court to allow a DRE to offer testimony about a DWI investigation that the DRE was not involved in, when the DRE stated that she could not testify (i.e. give an opinion) as to whether the Defendant was impaired.

 

Practice Tip: This case is from Buncombe County, where the State routinely calls a DRE that has not done a real time DRE evaluation in a particular case to give after-the-fact analysis and opinion at trial. Here’s the beef: There is no opinion being offered by investigating officers [State v. Lewis, 2022-NCCOA-887 (2022)] or by the DRE that the Defendant is impaired. Point out that no officer involved in the investigation or brought in as an expert to bolster the State’s case can give an opinion of drug impairment.

 

BREATH TEST

 

State v. Forney, No. COA23-338 (N.C. App. 2024)

 

Facts: During chemical breath testing, the officer noticed Defendant had gum in his mouth, and had Defendant spit out the gum between the first and second breath tests, both of which resulted in a .11 BAC. The chemical analyst did not restart the observation period or seek an additional breath test. Both the State and the Defendant had experts testify at trial on whether breath testing might be impacted by foreign objects in the mouth.

 

Burden of Proof: The Court noted that as the proponent of the breath test evidence in an impaired driving case, the State bears the burden of proving compliance with the “observation period” requirement set out in N.C. Gen. Stat. 20-139.1.

 

Holding: The provisions of the Department of Health and Human Services requiring an observation period by the chemical analyst were violated in this case and a new fifteen-minute observation period should have occurred after the Defendant spat the gum out of his mouth before taking breath samples. The results of the breath test should have been suppressed, but the Court concluded that in this case the admission of the BAC results was harmless error.

 

Practice Tip: The Court in dicta noted “the Intoximeter estimates alcohol in the blood (BAC) based on a measurement of alcohol in the breath—a ratio which in reality varies amongst different people—by using a single specific ratio to standardize the testing of all subjects.” If you are using Henry’s Law to characterize the breath result as an estimate in a .08+ case, you can read this language to give credence to your argument.

 

BLOOD DRAW

 

State v. Burris, 289 N.C. App. 535, 890 S.E.2d 539, No. COA22-408 (2023) (unpublished)

 

Note: Case is currently pending appeal to the N.C. Supreme Court.

 

Relevant Facts: Single vehicle accident. Officer found Defendant lying trapped under a steel fence outside of a vehicle that had sustained extensive damage. The Defendant was unresponsive and bleeding excessively. The officer noted that Defendant smelled of alcohol and found beer cans both inside and outside the vehicle. The Defendant was taken to the hospital, still unconscious. The officer obtained a warrantless search of Defendant’s blood while Defendant was unconscious.

 

Holding: Based on Mitchell v. Wisconsin, 588 U.S. ___, 139 S. Ct. 2525 (2019) the Court of Appeals found that exigent circumstances almost always exist to conduct a warrantless blood draw from an unconscious driver. This opinion is at odds with State v. Romano, 369 N.C. 678, 800 S.E.2d 644, No. 199PA16 (2017). Both Romano and Burris were in Buncombe County.

 

Practice Tip: Use the Court’s findings in Romano to craft your explanation as to why exigent circumstances do not exist in your case. Also, look at Judge Tyson’s scathing dissent in Burris.

 

State v. Russell, 891 S.E.2d 502, No. COA22-1059 (2023) (unpublished)

 

Holding: The Confrontation Clause is not violated where a substitute expert from the SBI testifies (and is subject to cross-examination) using another SBI agent’s previously generated report, which otherwise may be inadmissible, in forming an independent expert opinion.

 

SUFFICIENCY OF EVIDENCE

 

State v. Burris, 289 N.C. App. 535, 890 S.E.2d 539, No. COA22-408 (2023) (unpublished)

 

Note: Case is currently pending appeal to the N.C. Supreme Court.

 

Relevant Facts: Single vehicle accident. Officer found Defendant lying trapped under a steel fence outside of a vehicle that had sustained extensive damage. The Defendant was unresponsive and bleeding excessively. The officer noted that Defendant smelled of alcohol and found beer cans both inside and outside the vehicle. The Defendant was taken to the hospital, still unconscious. The officer determined that the Defendant was the owner of the vehicle and found no evidence of any other occupant.

 

Holding: The State presented sufficient evidence of driving to survive a motion to dismiss. Moreover, the officer describing the Defendant at trial as “the driver” without personally observing the same was admitted without error due to the Court giving a curative instruction.

 

Practice Tip: Distinguish the facts of Burris and use State v. Ray, 54 N.C. App. 473, 283 S.E.2d 823 (1981), State v. Eldred, 815 S.E.2d 742, No. COA17-795 (2018), and State v. Kraft, No. COA18-330 (2018) (unpublished) to argue for lack of sufficiency of the evidence in your case.

 

State v. Jones, 894 S.E.2d 290, No. COA23-254 (2023) (unpublished)

 

Facts: Defendant admitted to being in a minor traffic accident. During the accident investigation, the investigating officer noticed an odor of alcohol in Defendant’s car (where he was sitting), slurred speech, and Defendant admitted to drinking. Defendant blew positive on a PBT, showed six of six clues on HGN, and refused chemical testing after arrest.

 

Holding: In the light most favorable to the State, the State introduced substantial evidence that could prove Defendant was appreciably impaired and the trial court did not err in denying the Defendant’s motion to dismiss at the close of the State’s evidence.

 

PRE-TRIAL RELEASE & KNOLL

 

Pretrial Integrity Act – This act, in part, limits the authority of a magistrate judge to set conditions of pre-trial release for a person charged with DWI if the offense occurs while the defendant was on pretrial release for another pending proceeding. Only a district court judge has the authority to set the conditions of pretrial release for the first 48 hours following the defendant coming into custody for an alleged DWI offense if the defendant was on pre-trial release at the time of the newly alleged DWI.

 

Practice Tip: This new release procedure is hard to square with State v. Knoll, 322 N.C. 535, 369 S.E.2d 558 (1988). Consider these concluding statements to the Supreme Court’s decision in Knoll: “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. 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. That the deprivations occurred through the inadvertence rather than the wrongful purpose of the magistrate renders them no less prejudicial.” (emphasis added)

 

State v. C.K.D., 895 S.E.2d 923, No. COA23-204 (2023) (unpublished)

 

Note: Case is currently pending appeal to the N.C. Supreme Court.

 

Facts: Defendant was arrested a registered a .17 BAC. Defendant was transported to the Iredell County Magistrate’s Office where the magistrate set a $2,500.00 unsecured bond and detained defendant until he was sober or a sober responsible adult was willing to assume responsibility. The magistrate filled out a detention of impaired driving form and found “by clear and convincing evidence” that Defendant’s condition of “BAC .17, Red Glassy Eyes, Slurred Speech, Odor of Alcohol” presented a danger “of physical injury to the defendant or others or damage to property” if he were released. Defendant declined to use a phone to call his wife because he did not want to wake her, or their young children. He also checked the box indicating “I do not wish to contact anyone for the purposes of observing me at the jail or administering an additional chemical analysis.” Defendant asked officers if he could call a cab to take him home and that he had funds to pay for a cab. Defendant testified that he could be home in approximately 25 minutes if he had been allowed to take a cab home. Defendant remained in Iredell County Jail for approximately 11 hours prior to his release. During this time he was checked twice by jail staff and told he would be released when he blew a .00.

 

Holding: The trial court did not err in dismissing the DWI charge against Defendant based on State v. Knoll, 322 N.C. 535, 369 S.E.2d 558 (1988). “Even if defendant waived his right to have someone observe him at the jail, he did not waive his right to have friends or family observe his condition outside the jail, which is what would have occurred had he been permitted to call a taxi and return home to his wife.”

 

Note: The Court ruled that the magistrate’s findings of “BAC .17, Red Glassy Eyes, Slurred Speech, Odor of Alcohol” were not sufficient to support a conclusion that Defendant was a threat and should not have been released.

 

PLEA AND SENTENCING

 

State v. Harper, 894 S.E.2d 798, No. COA23-206 (N.C. App. 2023)

 

Holding: The trial court erred by failing to arrest judgment on Defendant’s conviction for DWI, as it is a lesser-included offense of serious injury by vehicle for which Defendant was also convicted.

 

State v. Smith, No. COA22-621 (2024) (unpublished)

 

Procedural Posture: Defendant brought what the Court interpreted as the functional equivalent of a post-sentencing MAR due in part to her attorney not advising her of the collateral consequences on her out-of-state driver’s license.

 

Holding: The Court rejected the Defendant’s attempt to analogize her attorney’s lack of explanation regarding the collateral consequences of her license to the immigration collateral consequences addressed by Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473 (2010).

 

Practice Tip: For any client with an out of state driver’s license refer them to an attorney in the client’s home state to discuss licensing consequences. Consider using the National College of DUI Defense Member Directory.