North Carolina Criminal Law Blog

A defendant charged in district court with the misdemeanor crime of driving while impaired cannot ascertain from the charging document whether he is subject to sentencing at Level A1 (the most serious level) or Level 5 (the least serious). That’s because the aggravating factors that lead to elevated sentencing aren’t considered elements of the offense and thus are not required to be alleged in the charging instrument. Yet because those factors can increase the maximum punishment a defendant may receive, they must be proved beyond a reasonable doubt and, with the exception of prior convictions, be determined by a jury in superior court. And, for most charges of impaired driving prosecuted in superior court, the State must provide notice of its intent to seek aggravating factors. A case decided by the court of appeals last June, however, identifies an exception to this requirement for certain aggravating factors in driving while impaired prosecutions initiated in superior court.

Last week, I was driving with my 14-year-old son and his 15-year-old friend in the car.  My son criticized me for not turning left out of parking lot when, according to he-who-has-never-driven, I had “plenty of time” to do so.  His friend, who recently got his learner’s permit, piped up and said, “Driving is not as easy as it looks.” You can say that again, friend.

Earlier this month, the National Highway Traffic Safety Administration (NHTSA) reported an estimated 10 percent increase in traffic fatalities for the first six months of 2016. NHTSA’s report was based on a statistical projection using data gathered, some of it in real time, from all 50 states. The increase is part of a trend.  NHTSA reports that the second quarter of 2016 is “the seventh consecutive quarter with increases in fatalities as compared to corresponding quarters in previous years.” NHTSA said it was too early to identify a cause for the most recent uptick, but that hasn’t prevented safety advocates from working toward a solution.

When I think of unlawful racing, scenes from old movies come to mind. I see guys (more specifically, James Dean and John Travolta) in white t-shirts and leather jackets behind the wheels of vintage Fords and Mercurys. Unfortunately, however, unlawful racing has not been relegated to the past. There were nearly 500 charges for unlawful speed competition in North Carolina last year, a misdemeanor offense that can result in the revocation of a person’s driver’s license as well as the seizure of the motor vehicle driven—not to mention serious injury or death.

The United States Supreme Court in 2014 ruled in Heien v. North Carolina, 135 S. Ct. 530 (affirming State v. Heien, 366 N.C. 271 (2012)), that an officer’s objectively reasonable mistake of law in making a stop or arrest is reasonable under the Fourth Amendment. Last week, the North Carolina Court of Appeals ruled in State v. Eldridge (September 20, 2016), that officer’s mistake of law when making a stop of a vehicle was not objectively reasonable based on the facts in that case. The Eldridge ruling is the subject of this post.

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.

May an officer search a motor vehicle based on the officer’s detection of the odor of marijuana coming from the vehicle? May the officer search the occupants of the vehicle? Several recent cases address these questions.

State law has mandated seat belt use by North Carolina motorists for more than thirty years. The seat belt law has, however, changed a bit over time. As a result, not everyone is clear on who is covered, what is required, and what the penalties are for violations. This post covers the particulars of North Carolina’s seat belt requirements and addresses three common areas of confusion.

True or False:  An officer does not have to be qualified as an expert to testify about horizontal gaze nystagmus in a hearing on a motion to suppress in an impaired driving case.

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.