Motor Vehicles

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

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.

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Court of Appeals Rules That Officer Had Reasonable Suspicion to Extend Traffic Stop

Jeff Welty in his post here yesterday discussed last week’s North Carolina Court of Appeals ruling in State v. Bedient. Today, I will discuss another ruling decided on the same day: State v. Castillo. Both cases are post-Rodriguez cases with different outcomes, with Bedient resulting in a ruling for the defendant and Castillo a ruling for the State.

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Court of Appeals Finds Extension of Traffic Stop Unsupported by Reasonable Suspicion

Last week, the court of appeals decided State v. Bedient, a significant post-Rodriguez opinion on traffic stops. The court ruled that an officer lacked reasonable suspicion to extend a stop by a few seconds to ask the driver for consent to search. This post summarizes and analyzes the case.

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Only Experts Can Testify About HGN

Author’s note:  I added the conclusory paragraph at the end of this post shortly after its initial publication in response to helpful questions from readers about the significance of State v. Godwin and State v. Torrence.

Like Supercalifragilisticexpialidocious, horizontal gaze nystagmus is a mouthful. Unlike Supercalifragilisticexpialidocious, not just anyone can utter horizontal gaze nystagmus and sound wise beyond her years. Two recent court of appeals opinions hold that that a witness be qualified as an expert before testifying about the results of a horizontal gaze nystagmus test.

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Warrant Required for Testing of Unconscious DWI Suspect

The United States Supreme Court heard oral arguments this morning in three cases involving the chemical testing of impaired drivers. The question before the court in each case is whether, in the absence of a warrant, a state may make it a crime for a person to refuse to take a chemical test to detect the presence of alcohol in the person’s blood. I’m eager to hear what the high court has to say about this issue and to learn whether it will impact North Carolina’s implied consent laws, which, like the laws in every other state, do provide for warrantless chemical testing, but which do not criminalize refusal to be tested. But we don’t have to wait for the Supreme Court’s opinion to see how our state’s implied consent laws are evolving in a post-Missouri v. McNeely world. The North Carolina Court of Appeals decided a significant case yesterday, ruling in State v. Romano, __ N.C. App. ___ (2016), that the warrantless withdrawal of blood from an unconscious impaired driving suspect violated the Fourth Amendment, notwithstanding a state statute that permits such actions.

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Fix It and Forget It—Without Making a Trip to the Courthouse

A few years ago, my babysitter texted me that she was going to be late because she had been pulled over by a police officer on the way to our house. When she arrived, I was in full-on substitute parent and attorney mode. Are you okay, I asked? What happened? She was nonplussed by the whole affair.  Her registration had expired a few months before. She hadn’t noticed. The officer explained that if she renewed her registration and provided proof of that to the assistant district attorney on her court date, the charges would be dismissed. Oh, I said (slightly deflated that she needed absolutely no input from me—a so-called expert). But she did have to go to court to clear all this up. And that required parking in downtown Raleigh on a weekday, finding her way to the appropriate courtroom and standing in line to pay her ticket. A new procedure, soon to be rolled out statewide by the Administrative Office of the Courts, will do away with this last step, preventing hundreds of thousands of citizens from having to appear in court to have their motor vehicle law charges dismissed upon proof of compliance with the law.

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State v. Miller Confirms that the DWI Motions Statutes are a Hot Mess

No, Justice Ervin didn’t use the words hot mess. But anyone who slogs their way through the tortured procedural swamp that led to State v. Miller, __ N.C. __ (March 18, 2016), is bound to agree that the procedures adopted in 2006 for appeals in DWI cases have created a nearly impenetrable bog for the parties involved. I’m going to do my best here to succinctly explain what happened in Miller. Then I’ll share an idea for freeing litigants and judges from the procedural muck in which they are currently mired. 

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North Carolina Supreme Court Affirms Post-Rodriguez Court of Appeals Ruling in State v. Warren

Last April, 2015, the United States Supreme Court in Rodriguez v. United States, 135 S. Ct. 1609 (2015), significantly limited the scope of a traffic stop. The Court ruled that an officer may not extend a completed traffic stop for any period of time, no matter how brief, to conduct a dog sniff—absent reasonable suspicion of criminal activity (or consent). The Court rejected the government’s argument that an officer may incrementally prolong a traffic stop, which some lower courts, including North Carolina’s, had justified as a de minimis intrusion. The Court reasoned that a dog alert is not a permissible part of a traffic stop because it detects evidence of ordinary criminal wrongdoing, which is not part of an officer’s traffic mission. The Court, however, clearly indicated that if a dog sniff or other non-traffic-related activity does not add any time to the stop (in this case, it added 7–8 minutes), then the dog sniff or other activity is valid under the Fourth Amendment, as it previously had ruled in Illinois v. Caballes, 543 U.S. 405 (2005).

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What to Expect After a Traffic Stop: The Movie

As mentioned in a recent News Roundup, the Raleigh Police Department (RPD) produced a short video entitled “Traffic Stops: What to Expect as a Motorist,” instructing drivers who have been pulled over by law enforcement on how they should behave. It appears that the RPD had the laudable goal of educating the public to ensure the safety of both officers and motorists. Captain Bruce, the officer who narrates the video, states that “by following a few basic steps, the experience can progress without misunderstanding or conflict.” The video is garnering attention: As of today, it has received 8,446 views on YouTube, with “likes” outweighing “dislikes” 21 to 15. This blog offers legal commentary on a few of the points made in the video, using a scale of green light for what appear to be sound instructions, yellow light for instructions that may raise questions, and red light for an instruction that may prove misleading to citizens.

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