Do the following facts provide probable cause to arrest for impaired driving?
An officer pulls behind a vehicle at a stoplight around 3 a.m. and sees that its registration is expired. He activates his blue lights, and the defendant turns into a nearby parking lot. When the officer approaches the car, the defendant tells him that his license is revoked for DWI. The officer smells a medium odor of alcohol coming from the defendant’s breath and sees that the defendant’s eyes are red and glassy. The officer performs an HGN test, noting 5 of 6 indicators of impairment. The defendant tells the officer that he had three beers at 6 p.m. the previous evening.
The court of appeals answered this question earlier this week in State v. Lindsey, ___ N.C. App. ___ (2016). Its answer, and the outcome of the case, may surprise you.
Yes, the court of appeals held, these facts do provide probable cause to arrest for impaired driving. The absence of poor driving, a traffic violation, an accident, or slurred speech does not dictate a different result; nor does evidence that the defendant was steady on his feet, cooperative, and able to follow instructions.
What about State v. Sewell? Last year, the court of appeals held in State v. Sewell, __ N.C. App. ___, 768 S.E.2d 650 (2015) (unpublished) (discussed here) that an officer’s observation of the driver’s red, glassy eyes, six of six clues on the HGN test, and positive results on a portable breath test did not provide him with probable cause that the defendant was driving while impaired.
Why was there probable cause to arrest Lindsey but not Sewell? The Lindsey court provided two reasons.
First, Sewell was an unpublished decision and therefore not controlling legal authority.
Second, the odor of alcohol in Sewell came from the defendant’s car rather than from the defendant herself, and Sewell was accompanied by a passenger. The defendant in Lindsey was alone in the car, and the officer smelled alcohol coming from the defendant’s breath.
The factual distinction doesn’t hold up very well in my view. It seems to me that Sewell’s positive results on the portable breath tests indicate that she was a likely source of the alcohol odor. If one accepts that linkage, the two defendants’ circumstances aren’t notably distinguishable when it comes to the smell of alcohol.
I’ll note a third distinction. The trial court in Sewell granted the motion to suppress, concluding that the officer lacked probable cause to arrest, while the trial court in Lindsey denied the defendant’s motion, concluding that, though it was “a really close case,” the officer had probable cause. Of course, this shouldn’t affect the appellate court’s ruling since, in both cases, it found the trial courts’ factual findings supported by the evidence and relied upon those findings in evaluating the totality of the circumstances.
The takeaway? Lindsey controls; Sewell does not. And despite the court of appeals’ attempt to factually distinguish the cases, Lindsey very nearly directly contradicts Sewell. My prediction is that trial courts will rarely, if ever, employ Sewell to evaluate probable cause in future impaired driving cases.
What’s sufficient for a conviction? Even those who correctly predicted the Lindsey court’s probable cause holding may find its ruling on the sufficiency of the evidence surprising.
At trial, the State relied on the facts noted at the outset of this post and the following additional evidence:
(1) Before arresting Lindsey, the officer tried more than once to obtain a sample of Lindsey’s breath for analysis on a portable breath testing device; Lindsey repeatedly failed to provide enough breath to register;
(2) Lindsey, who apparently was not handicapped, pulled into a handicapped parking space when he was stopped;
(3) Lindsey refused to submit to a breath test after his arrest; and
(4) the officer who arrested Lindsey believed that he was appreciably impaired by alcohol and his opinion did not change over the two hours he spend with the defendant.
The court of appeals deemed this evidence sufficient to survive the defendant’s motion to dismiss, notwithstanding evidence that the defendant drove properly and was steady on his feet.
The outcome. Lindsey was convicted of habitual driving while impaired and driving while license revoked for impaired driving. The State not only procured a conviction against Lindsey, but, in the process of litigating his appeal, gained favorable precedent for its use in future DWI prosecutions.
I think it should be noted that the trial court in Sewell granted the motion to suppress, concluding that the officer lacked probable cause to arrest because of the weight given by the Court to Sewell’s performance on the Standard Field Sobriety Tests, in addition to other observations by the Officer. In Sewell, the Defendant’s speech was not slurred, she was steady on her feet, followed all instructions at all times, and exhibited NO clues of impairment on the “One Leg Stand” and “Walk and Turn” tests. Under the totality of all of these circumstances, the Court ruled that the officer lacked probable cause to arrest.
DWI and sex offenses are treated differently by the appellate court and dwi especially the supreme court. the real controlling issue for the court was the fact that the defendant said his license was revoked for dwi. and of course they also know that he is habitual. first offender who blew an .08 maybe different result. outcome based jurisprudence. How do we want to make this turn out? its bad business to appeal dwi cases to appellate court because it creates bad law. that is the difference in sewell and Lindsey.
Robert: I was tempted to note a fourth distinction, namely that the defendant was driving his car after drinking while his license was suspended for driving while impaired. Of course, that wasn’t a factor considered by the trial or appellate court, and I’m doubtful that it could have been lawfully considered. Yet, when you read the facts of both cases, it certainly is a factor that stands out.
In reality, probable cause cases do almost nothing to further the jurisprudence. They provide little to no guidance to trial judges, because the inquiry by the COA either is “bound” by the factual findings or reviews them to see if they are supported by competent evidence. There is no independent review of how the trial judge weighed the evidence. Because of this, the Sewell and LIndsey cases could have gone either way, so long as the trial judge made findings which supported their conclusions. All that each of these cases really tell us is that the evidence on that day, in front of that particular judge, was sufficient to establish probable cause. It does not necessarily mean that similar evidence, in front of a different judge would fail to establish probable cause. These holdings do not establish a “checklist” or some other objective standard for trial judges to measure their cases against, they merely establish that the trial judge in the particular cases properly followed the procedural mechanism.
Why no discussion in your distinction paragraphs about the trial court’s finding that the driver “refused” an alcosensor? That was a factor the court considered and that factor was NOT present in Sewell. Why can’t you at least admit that distinction, which is significant? Why also do you ignore entirely the big factor that the driver’s license was suspended for a prior DWI. Just because the trial court did not include it as a conclusion of law, it is dispositively an “arrestable” offense and distinguishes the facts from a case where the driver is operating on a valid license.