Don’t call the School of Government next week. We’ll all be out. Next week is conference-time for many of the court officials we serve, and we will be traversing the state (driving the speed limit at all times, of course) to speak at various legal conferences. Case updates are a perennial staple of these conference agendas, so I’ve been reviewing last year’s cases with a particular focus on impaired driving. A number of opinions address issues that are frequently litigated in DWI cases, so I thought I’d share the highlights with you in a two-part post. This post reviews the past year’s jurisprudence on implied consent testing and compelled blood draws. Tomorrow’s post will review the recent case law on reasonable suspicion and probable cause for DWI.
Shea Denning
The License Plate Game
The school year ends this week so it is just about time for another Denning family road trip. Despite the minivan with bucket seats, the DVD player, and multiple portable electronic devices, my kids are terrible travelers. So this summer I think we’ll go old school and try the license plate game. My kids are sticklers for rules (they take after their father) so we’ve got to decide whether license plates mounted on the front count. That caused me to wonder why people have such plates in the first place and whether it is lawful to place them on the front of a vehicle registered in North Carolina.
State v. Leak: Defendant Unlawfully Seized During License Check
The United States Supreme Court held in Rodriguez v. United States, ___ U.S. ___, 135 S. Ct. 1609 (2015) (discussed here), that a law enforcement officer may not extend a traffic stop to investigate matters unrelated to the basis for the stop—not even for a matter of minutes—unless the additional delay is supported by reasonable suspicion. The North Carolina Court of Appeals applied that principle this week in State v. Leak, ___ N.C. App. ___ (2015), reversing the trial court’s denial of the defendant’s motion to suppress and vacating the defendant’s conviction for possession of a firearm by a convicted felon.
When the Trial Court Has the Last Word
Litigants sometimes are surprised by circumstances in which a trial court’s ruling in a case is not capable of review on appeal. The court of appeals recognized one such situation earlier this week in State v. Kiselev, ___ N.C. App. ___ (May 19, 2015).
News Roundup
In an odd turn of events for the person known as the “champion of the falsely accused,” WRAL reports that Christine Mumma was accused herself this week by the North Carolina State Bar of violating the Rules of Professional Conduct. Mumma serves as executive director and legal counsel for the North Carolina Center on Actual Innocence. The allegations arise from Mumma’s work to free Joseph Sledge, who spent thirty-six years behind bars for the killing of a mother and her daughter in Bladen County in 1976 before he was exonerated last January.
Speeding: Local Ordinance Violation or State Law Infraction?
Suppose a North Carolina city adopts an ordinance establishing a local speed limit of 25 miles per hour for all city streets that are not otherwise marked. Signs are posted on city streets reflecting the 25 mile per hour limit. Absent this ordinance, state law would provide for a speed limit of thirty-five miles per hour inside the municipal corporate limits. The city’s municipal code provides that violations of its provisions are not governed by G.S. 14-4, which otherwise would render the violation of a local ordinance regulating traffic an infraction. The municipal code also states that speeding on a city street is punishable by a civil penalty of $75 and requires that payment be made to the town hall. A local law enforcement officer stops a car that is traveling 40 miles per hour on a city street. May the officer issue a civil citation to the driver, requiring payment of the $75 penalty? May the officer cite the driver for speeding in violation of state law, an infraction? May the officer choose between these two methods of enforcement?
DWI Bills That Made the (First) Cut
Last week was crossover deadline at the General Assembly–a major event for lawmakers, legislative staffers, lobbyists and policy wonks. If you don’t fall into any of these categories, the deadline may not have greatly affected your work week. But because crossover marks (at least theoretically) the deadline by which non-revenue bills must pass one chamber of the legislature in order to be considered by the other during the remainder of the session, it is a good time to take stock of pending legislation. A complete listing of bills that met crossover is available here. Several of these bills would significantly amend laws related to impaired driving.
Do Implied Consent Procedures Apply to the Withdrawal of Blood Pursuant to a Search Warrant?
In most DWI cases, the State obtains evidence of a defendant’s alcohol concentration from a breath-testing machine. In order for the results of such a breath test to be admissible at trial, the State must follow the procedures set forth in the implied consent statutes, G.S. 20-16.2 and G.S. 20-139.1. Those statutes require, among other things, that a suspect be advised of his right to refuse testing and the consequences of such a refusal and that he be afforded an opportunity to contact a witness to observe the testing. Less frequently, a law enforcement officer will request that a person charged with an implied consent offense such as impaired driving submit to a blood test. Like the breath test results, the analysis of the defendant’s blood sample obtained pursuant to such a request is admissible at trial only if the State follows the procedures set forth in the implied consent statutes. If the request for a blood test follows an earlier request for a breath test, then the officer must re-advise the suspect of his implied consent rights before asking for consent. None of these rules apply, however, when blood is withdrawn pursuant to a search warrant.
Nystagmus in the Courts
Jurisprudence over whether officers may testify about defendants’ horizontal gaze nystagmus (HGN) in impaired driving trials has failed to follow a smooth path. In fact, one could fairly note that more than the defendants’ eyes have jumped all over the place. First, our state supreme court said that testimony from a police officer regarding the results of an HGN test performed by the defendant was inadmissible without the evidence establishing that the HGN test was scientifically reliable. State v. Helms, 348 N.C. 578 (1998). The legislature responded by amending Rule 702 in a manner that, according to the court of appeals, “obviat[ed] the need for the state to prove that the HGN testing method is sufficiently reliable” and permitted law enforcement officers trained in administering the HGN test to testify about the defendant’s performance. State v. Smart, 195 N.C. App. 752 (2009). But forget admissibility for a moment. Does HGN evidence prove anything much anyway? A recent unpublished case from the court of appeals indicates that it does not.