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 None of these rules apply, however, when blood is withdrawn pursuant to a search warrant.
Evidence
Book on Digital Evidence Now Available
I’m happy to announce that my book on digital evidence is now available. There are five chapters, covering (1) search warrants for digital devices, (2) warrantless searches of digital devices, (3) law enforcement access to electronic communications, (4) tracking devices, and (5) the admissibility of electronic evidence.
Hair Analysis Under a Microscope
Over the weekend, the Washington Post ran a story that begins as follows:
The Justice Department and FBI have formally acknowledged that nearly every examiner in an elite FBI forensic unit gave flawed testimony in almost all trials in which they offered evidence against criminal defendants over more than a two-decade period before 2000.
Of 28 examiners with the FBI Laboratory’s microscopic hair comparison unit, 26 overstated forensic matches in ways that favored prosecutors in more than 95 percent of the 268 trials reviewed so far, according to the National Association of Criminal Defense Lawyers (NACDL) and the Innocence Project, which are assisting the government with the country’s largest post-conviction review of questioned forensic evidence.
State v. Fizovic and Searching Cars for Alcohol
Author’s Note: This post has been modified from its original version in response to a helpful comment by a reader.
An officer sees a man drink from a can of beer while the man drives through a public parking deck. The officer stops the man’s car and sees the beer bottle can in plain view. He then asks the man to step out of the vehicle. May the officer open the car’s console to search for additional evidence?
Georgia Supreme Court Holds that Implied Consent Is Not Actual Consent
Prosecuting impaired drivers in Georgia just got a little bit harder. The Georgia Supreme Court held last week in Williams v. State, __ S.E.2d __ (Ga. 2015) that the mere fact that a DUI suspect agreed to allow officers to withdraw his blood–after being told that Georgia law required him to submit to testing and that his driver’s license would be revoked for a year if he refused–did not establish the sort of voluntary consent necessary to excuse the Fourth Amendment’s warrant requirement. Is this a watershed moment in implied consent law?
Drug Dogs and Checkpoints
I’ve had several questions about the role of drug dogs at motor vehicle checkpoints. The details are below, but a quick summary of the law is as follows:
(1) Officers can’t lawfully run drug dogs around every vehicle stopped at a checkpoint
(2) Officers can lawfully run drug dogs around cars that are pulled out of line for additional investigation, so long as the use of dog doesn’t substantially lengthen the stop
Discovery and Testimony about an Expert’s Experience with Sexual Abuse Victims
The rules of thumb about expert testimony in child sexual abuse cases are (1) that an expert can’t testify that a child was, in fact, abused absent physical evidence, and (2) that an expert can testify to common characteristics or “profiles” of sexual abuse victims. A recent court of appeals case holds that even if the State doesn’t give notice of an expert’s opinion regarding victims’ characteristics, the expert has the leeway to discuss his or her own experiences with survivors of sexual abuse.
Recent Case on Authentication of Surveillance Video
More and more criminal cases involve video evidence, whether from patrol car dash cameras, store surveillance cameras, witness cell phone cameras, or, in the near future, wearable cameras. It’s important to know the authentication requirements for such evidence. A recent court of appeals case sets a high bar for admissibility.
Failing to advise a defendant of his implied consent rights requires suppression of the test results . . . except when it doesn’t
In opinions spanning four decades, North Carolina’s appellate courts have suppressed chemical analysis results in impaired driving cases based on statutory violations related to their administration. When the violation consists of the State’s failure to advise a defendant of her implied consent rights, the appellate courts’ jurisprudence has been straightforward and consistent: The results of an implied consent test carried out without the defendant having first been advised of her implied consent rights are inadmissible. Indeed, the court of appeals reaffirmed that principle last June in State v. Williams, __ N.C. App. ___, 759 S.E.2d 350 (2014), holding that the State’s failure to re-advise the defendant of his implied consent rights before conducting a blood test under the implied consent statutes required suppression of the test results. A court of appeals opinion issued in the waning hours of 2014 indicates, however, that the rule is subject to at least one exception.
Competency and the Residual Hearsay Exception
I previously wrote (here) about the U.S. Supreme Court’s recent cert grant in Ohio v. Clark, a case in which the Court will decide whether a three-year-old child’s statements to his preschool teachers are testimonial. Hiding in plain sight in that case is an issue as interesting as the Crawford question that the Court will decide. In Clark, the Ohio Supreme Court held that the child’s statements to his teachers identifying the defendant as the perpetrator were testimonial. It further held that the trial court violated the defendant’s confrontation clause rights when it admitted the child’s out of court statements to his teachers at trial, after finding the child—L.P. —incompetent to testify. L.P. was found to be incompetent six months after uttering the statements at issue.