blankShea Denning

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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.

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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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Is it a Crime to Wear a Thong on the Beach in North Carolina?

(Author’s note:  This post has been amended since its initial publication.)

My kids spend lots of time during the summer at our local YMCA, where this day of the week is known as Wacky Wednesday. On Humpday, many of us at the School of Government think of a retired colleague who greeted everyone in the building with a “Happy Wonderful Wednesday!” Whether you deem today’s blog post wacky or wonderful–or just plain weird—it addresses a question that continues to cross the minds of many in the state and which was posed to me a few weeks ago. Fortunately, there is a clear answer.  (Spoiler alert:  If you’ve visited the beach lately, you likely know what it is.)

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Does State v. Ashworth Place Factors Over Substance?

The court of appeals reversed a defendant’s DWI conviction yesterday in State v. Ashworth, __ N.C. App. __ (August 2, 2016), on the basis that the trial court plainly erred in holding that the driver’s license checkpoint at which the defendant was stopped was appropriately tailored and advanced the public interest. Unlike some checkpoint cases in which you can see the trouble coming in the recitation of facts, Ashworth is a pretty routine checkpoint case. Two officers with the State Highway Patrol set up the checkpoint to look for driver’s license and other traffic violations. The highway patrol had a checkpoint policy that the officers followed. A supervisor approved the checkpoint. The defendant admitted that he had been drinking almost immediately after he stopped at the checkpoint. So where did the trial court go wrong?

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Traffic Laws Amended to Address Cyclist Safety and Shared Use of the Roads

I wrote a post last January about proposed changes to the state’s traffic laws to address bicyclist safety and shared use of the roads by motorists and bicyclists.  I am still smarting from the on-line comments and emails I received as a result. (Before you click on the link and join the chorus, I should clarify that I foolishly used a bit of literary license in that earlier post. I’m not actually hostile to cyclists who pass motor vehicles at a stop light.) Now that the legislature has amended the traffic laws to address these issues, I am reticently returning to the topic to describe those changes. But I’ve learned my lesson. The rest of this post will be strictly the facts.

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Sheyenne’s Law Stiffens Penalty for Impaired Boating Causing Serious Injury or Death

The man who authorities say was operating the boat that crashed into 17-year-old Sheyenne Marshall while she was knee-boarding on Lake Norman on July 4, 2015, killing her, faces charges for boating while impaired, a Class 2 misdemeanor, operating a vessel in a reckless manner, a Class 2 misdemeanor, and involuntary manslaughter, a Class F felony. After the accident, Marshall’s family lobbied the legislature for stiffer penalties for impaired boating. Less than a year after Marshall was killed, the General Assembly enacted Sheyenne’s law, which increases the penalties for impaired boating that causes death or serious injury to another. 

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Utah v. Strieff and the Attenuation Doctrine

(Author’s note:  The concluding paragraph of this post was amended after its publication to include the number of outstanding warrants and orders for arrest on July 1, 2016.)

Every year, the June trifecta throws me off my game. First, school lets out so I have to acclimate to a schedule of camps that vary in operating hours, locations, necessary equipment, and participating child. Second, the district court judges convene for their annual conference where I join them to oversee the program and to lecture about criminal law cases decided since the previous October. Third, the United States Supreme Court winds up its term, invariably deciding significant criminal law cases the very week of the conference. Since judges are no better than my children in cutting me a little slack (Am I really the only mother who didn’t know you needed to bring a racket to tennis camp?), they bombarded me the day the conference began to ask about the attenuation doctrine and its application in Utah v. Strieff (decided the day before). I mumbled something about the Christian burial speech and quickly asked how their summers were going. Now that June is behind me, I’ve collected my thoughts and am prepared to talk about Strieff.

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Breath Tests Incident to Arrest are Reasonable but Prosecution for Refusing a Blood Test Goes Too Far

The U.S. Supreme Court waded into the murky waters of implied consent law this term in Birchfield v. North Dakota. The opinion it issued last week clarified important aspects of the relationship between chemical testing for impairment and the Fourth Amendment, but failed to distill a coherent theory of implied consent. Here’s what we know after Birchfield:

  • Warrantless breath testing of impaired driving suspects is permissible under the Fourth Amendment as a search incident to arrest. A person who refuses to submit to such testing may be subjected to sanctions ranging from license revocation to criminal prosecution.
  • Warrantless blood testing of impaired driving suspects is not permissible under the Fourth Amendment as a search incident to arrest. Thus, a warrant or a suspect’s consent is required to conduct such testing. A person who refuses to submit to such testing may not be criminally prosecuted for that refusal.

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