HGN, the Rules of Evidence and Suppression Hearings

True or False:  An officer does not have to be qualified as an expert to testify about horizontal gaze nystagmus in a hearing on a motion to suppress in an impaired driving case.

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Going “Beyond the Bounds” of Rule 404(b) in a Case Involving the Death of a Child

About a year ago, I wrote about State v. Hembree, 368 N.C. 2 (2015), a case in which the state supreme court reversed a murder conviction based on the State’s excessive use of Rule 404(b) evidence. This month, a divided court of appeals decided a case in the same vein. The case is State v. Reed. Continue reading

News Roundup

The ABA Journal reports that the U.S. Department of Justice has filed an amicus brief in a Georgia civil class action asserting that the use of money bail violates arrestees’ due process and equal protection rights when there is no meaningful consideration of their ability to pay and alternative methods of assuring their appearance at trial. The plaintiff in the case is a schizophrenic man who was arrested for public drunkenness and could not afford $160 in bail. Unable to make bail, the man was held for six days in the local jail. The challenged system differs from North Carolina’s pretrial release procedure which, in many cases, expresses a preference for unsecured or non-monetary conditions of pretrial release. Keep reading for more news.
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When May Evidence of HGN Come on Down . . . or In?

The question I am most frequently asked these days is some version of the following:

May a law enforcement officer trained in administering the HGN test testify at trial about a defendant’s performance on the test if no other expert testifies about the relationship between nystagmus and impairment by alcohol?

While the answer obviously is either yes or no, there is more than one way to analyze the issue. Since today is Thursday, I’m going to throw it back to Bob Barker and the Price is Right and give you two showcases to consider. Continue reading

Sufficient Evidence of a Probation Violation

Probation violations need not be proven beyond a reasonable doubt. All that’s required is sufficient evidence to “reasonably satisfy” the judge that a violation occurred. What constitutes competent evidence of a probation violation? And how much proof is enough? Continue reading

North Carolina Court of Appeals Finds Exigent Circumstances to Enter Home Without a Warrant to Conduct Protective Sweep for Officer Safety and to Prevent Destruction of Evidence

The United States Supreme Court has stated that the “physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed” and that “searches and seizures inside a home without a warrant are presumptively unreasonable.” Payton v. United States, 445 U.S. 573, 585-86 (1980). So in an ordinary case officers will need an arrest warrant to enter a person’s house to make an arrest of the resident or a search warrant to search for and seize property there. There are a few exceptions to the warrant requirement: (1) obtaining consent to enter from an appropriate person, (2) probable cause and exigent circumstances, (3) making a protective sweep of a home for dangerous people when an officer is there to make an arrest, (4) entering a home to seize weapons for self-protection, and (5) entering a home to render emergency assistance to an injured occupant or to protect an occupant from imminent injury. See generally Arrest, Search, and Investigation in North Carolina (4th ed. 2011) at pages 66-73 (entering premises to arrest), 217-18 (probable cause and exigent circumstances), 232-33 (entry or search of home to render emergency assistance or for self-protection). A new edition of this book will be available this coming winter, possibly as soon as December 2016. Continue reading

Podcast Update: Episode 4 Now Available

The penultimate episode of the inaugural season of Beyond the Bench is now available! The first half of the episode was produced by Shea, and explores the penalties associated with impaired driving and their effectiveness at addressing the problem. The second half involves me interviewing Jamie about the concept of absconding from probation. We talk about the history of the term and discuss several recent appellate cases about what constitutes absconding. You can listen on the web here, or download the episode from the leading podcast store of your choice. Let us know what you think.

News Roundup

On Thursday, the United States Olympic Committee issued an apology to Brazil for a “distracting ordeal” involving U.S. Olympic swimmers, bathroom vandalism, and a false report of armed robbery.  Earlier in the week, swimmer Ryan Lochte claimed that he and a few other U.S. teammates were robbed at gunpoint in Rio.  The purported robbery was a high profile example of security concerns at the Brazil games.  As it turns out, the swimmers had drunkenly vandalized a gas station bathroom and concocted the robbery story to avoid getting in trouble.  As their story started to unravel, a Brazilian judge ordered the swimmers’ passports seized.  Lochte escaped Brazil before his passport was taken, but has not escaped merciless criticism from media outlets at home and abroad.

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Revised Law Green-Lights Restitution to Insurers

For many years North Carolina law has prohibited insurers from receiving restitution directly from criminal defendants. That prohibition will end on December 1, 2016. Continue reading

Pop Quiz on Dangerous Driving

It is almost time for a new school year to begin, so I’m feeling in the mood for a pop quiz.

What driver behavior is associated with the most vehicle crashes in North Carolina?

  1. Speeding
  2. Driver Distraction
  3. Alcohol Consumption

 

What driver behavior is associated with the most injuries resulting from vehicle crashes in North Carolina?

  1. Speeding
  2. Driver Distraction
  3. Alcohol Consumption

 

What driver behavior is associated with the most vehicle crash fatalities in North Carolina?

  1. Speeding
  2. Driver Distraction
  3. Alcohol Consumption

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