Blanket Objection by State to Fact-Findings Sufficient to Trigger De Novo Review in DWI Case

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If you decide to read yesterday’s court of appeals opinion in State v. Miller, ___ N.C. App. ___ (May 17, 2016) do yourself a favor and skip to page 9.  Not having the benefit of this advice, I got lost on page 3. At first, I thought my printer had malfunctioned, since page 3 seemed to be saying the same thing as page 2. But there’s no problem with my printer. I can’t say the same for the procedural history in this case. Tortured is not a sufficiently negative adjective to describe its path. Fortunately, things pick up half way through the opinion and an important rule emerges:  The State may obtain a de novo hearing in superior court under G.S. 20-38.7(a) without setting forth the specific findings of fact to which it objects.

So that’s the rule. Unless the senior resident superior court judge says otherwise.  You’re going to have to read the rest of this post to make sense of that.

The first nine pages. I summarized the procedural history of State v. Miller here.  Yesterday’s opinion is the court of appeals’ response to the remand from the state supreme court.

Implied consent procedures. Miller arises from litigation in an impaired driving case.  District court judges in DWI cases don’t just rule on motions to suppress and dismiss as they do in other cases. Instead, they must enter preliminary determinations, which the State may appeal to superior court. If the State disputes the findings of fact as well as the proposed legal ruling, the superior court’s review is de novo. That type of review requires that the superior court hold a new hearing on the matter and that it rule without consideration of the proceedings below. If the State does not dispute the district court’s factual findings, the superior court does not hold a new evidentiary hearing. Instead, it simply determines whether the district court’s findings support its legal conclusions.

Who gets de novo review? A central issue in the Miller litigation is whether the State must identify the specific findings of fact to which it objects in its notice of appeal in order to obtain de novo review. Yesterday’s opinion says that the governing statutes, G.S. 20-38.7 and G.S. 15A-1432, impose no such requirement. Thus, the State’s general objection to the district court’s findings in Miller and its request for a de novo hearing were sufficient to trigger that level of review.

Unless the Senior Resident says otherwise. Yesterday’s Miller opinion notes, however, that soon after the State in that case appealed the district court’s determination to superior court, the Senior Resident Superior Court Judge for the 26th District entered an administrative order requiring that “[w]henever the State appeals from a district court preliminary determination granting a motion to suppress or dismiss as permitted by G.S. 20-38.7, the State shall specify with particularity in its written notice of appeal those findings of fact made by the district court, or portions thereof, which the State disputes in good faith.”  The administrative order states that “a broadside exception to the district court’s findings of fact is not permitted.”  It further requires that, before the superior court hearing on the State’s appeal, counsel for the defendant and the assistant district attorney confer and “make a good faith effort” to stipulate to any facts that are not in dispute.” Any resulting stipulations must be written, signed, and filed with the clerk.

The Miller court cites G.S. 7A-41.1(c) for the proposition that the senior resident superior court judge “has the authority to enter local rules and administrative orders governing practices and procedures within that Judicial District.” G.S. 7A-41.1(c) doesn’t spell out that authority, however. Instead, it states that senior resident superior court judges must discharge all of the constitutional and statutory duties placed upon a regular resident superior court judge that do not relate to a case, controversy or judicial proceeding and which do not involve the exercise of judicial power. My former colleague, Michael Crowell, set out the duties of the senior resident superior court judge in this helpful paper.  I can’t find a duty that permits adoption of enhanced notice of appeal requirements such as the one cited in Miller. Perhaps readers better versed in this field than I may be able to identify an authorizing provision.

In any event, this portion of the latest Miller opinion is dicta as the administrative rule was adopted after Miller’s appeal and thus did not apply to the State’s notice in that case.

Maybe we’ll hear more about the administrative order in a future appellate case. But please let this be the last we hear of State v. Miller.

2 comments on “Blanket Objection by State to Fact-Findings Sufficient to Trigger De Novo Review in DWI Case

  1. “[P]lease let this be the last we hear of State v. Miller”? I doubt it. Because all of these rulings amount to, “however the State appeals a DWI, we’ll let it go,” the case now goes all the way back to the very first appeal by the State, of the District Court’s preliminary indication.

    Thank goodness for the “simplified motion practice for the State’s appeal.” And I’m glad to see the appellate courts abiding by their rule, “statutes granting the State a right to appeal are strictly construed.” Can you imagine what a LIBERAL construction of these statutes would look like?

  2. The courts continue to carve out exceptions to all rules of evidence, rules of procedures and Constitutional rights just for DWI cases. Absurd.

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