Here I go again (perhaps on my own) with another update on the state of implied consent after Missouri v. McNeely, __ U.S. __, 133 S. Ct. 1552 (2013). These updates occur more often than teeth-cleanings and may be awaited with the same degree of anticipation. But given that there’s a split of authority developing between the states, and North Carolina courts have not yet weighed in, I think these are developments worth following.
Motor Vehicles
Need a ride? Call Uber. It’s officially regulated.
Uber was the talk of the table during our Thanksgiving meal. One of my cousins drives for Uber in her spare time. So does her boyfriend. They compete for who can earn the most extra spending money. I’ve used Uber myself several times. I’ve rated all my drivers a 5. And I’ve never worried about whether taking Uber was safe. But for those who do (my mother and aunt), legislation enacted by the General Assembly last session may provide some assurance.
Field Sobriety Testing and the Fifth Amendment
Most drivers stopped on suspicion of impaired driving are asked to submit to field sobriety tests before they are arrested. Those tests often include the three standardized tests, which researchers have found to enhance officers’ ability to accurately identify impairment: the one-leg stand, the walk-and-turn, and the horizontal gaze nystagmus tests. Officers sometimes use other types of field tests that have not been validated, such as asking participants to recite the alphabet or to conduct counting exercises. Evidence gained from any of these pre-arrest tests may be admitted against the defendant at trial without running afoul of the Fifth Amendment right to be free from self-incrimination. That’s because suspects aren’t in custody for purposes of the Fifth Amendment or Miranda v. Arizona, 384 U.S. 436 (1966) when they are temporarily detained for a traffic stop and are asked a moderate number of stop-related questions. Berkemer v. McCarty, 468 U.S. 420, 440 (1984); State v. Braswell, 222 N.C. App. 176 (2012). But what if the suspect is asked to perform field sobriety tests after he is arrested? Must he first be provided Miranda warnings?
More About Those Weird DWI Motions Procedures
You represent a defendant charged with DWI. You move to suppress evidence in district court. The district court enters a preliminary determination in your favor. The State appeals. The superior court disagrees with the district court and remands the case with instructions to deny your motion. Your client pleads guilty. You appeal to superior court. You want the court of appeals to consider the merits of your motion. What should you do to preserve that right?
Driving While Impaired with Children in the Car
When you can’t find what you’re looking for in North Carolina, you may have to extend your search out of state. Case in point: I’ve just discovered an opinion from the Minnesota Court of Appeals that answers the elusive question of how many aggravating factors apply if a person drives while impaired with more than one child in the car. And unlike some things you can only find in another state–like major league baseball and pot-laced gummy bears–you can bring this one home to the Old North State.
Technical Corrections Act Clarifies New DWLR Law
Author’s Note: Question 2 of this post and its answer have been amended to accurately reflect the state of the law before it was amended in the 2015 session.
Earlier this legislative session, the General Assembly enacted the North Carolina Drivers License Restoration Act, S.L. 2015-186, which amended the state’s driving while license revoked law and relieved certain defendants of the mandatory license revocations that historically have followed convictions for this offense. I blogged here about the particulars of the act, which recodified various violations of G.S. 20-28 and eliminated additional license revocations for certain types of DWLR convictions. Three questions about the import of the act immediately arose. Now that the technical corrections bill has become law, I have answers.
What’s NOT a Public Vehicular Area?
After the legislature broadened the definition of “public vehicular area” in 2006 to include areas “used by the public for vehicular traffic at any time,” many wondered whether there was any place where one could drive a vehicle (other than a private driveway) that wasn’t considered a public vehicular area. There was even some doubt about those private driveways, since members of the public can drive into them and sometimes do so even without an invitation from the resident. Moreover, North Carolina’s appellate courts had broadly interpreted the term for years—even when it was more narrowly defined. But the court of appeals put the brakes on an overly expansive reading of public vehicular area last year, rejecting, in State v. Ricks, ___ N.C. App. ___, 764 S.E.2d 692 (2014), the State’s argument that all property used by the public for vehicular traffic is, in fact, a public vehicular area.
The Eighth Circuit Considers Implied Consent, but I Still Haven’t Found What I’m Looking For
I admit that I may have a problem. I am dedicated to (perhaps obsessed with) the pursuit of a legal theory that satisfactorily squares the doctrine of implied consent with the Fourth Amendment. A thousand Westlaw searches later, I have yet to find analysis such an analysis by a court. So I was a little surprised when the United States Court of Appeals for the Eighth Circuit explained earlier this summer that the Supreme Court determined more than thirty years ago in South Dakota v. Neville, 459 U.S. 553 (1983), that implied consent testing carried out under threat of license revocation comported with the Fourth Amendment. Did I miss something?
Updated Traffic Stops Paper Now Available
I’ve updated my paper on traffic stops to include Rodriguez v. United States, __ U.S. __, 135 S. Ct. 1609 (2015), and other recent cases. It’s available here. For those not familiar with the paper, it is a summary of the law regarding traffic stops, including typical reasons for such stops, the stops’ duration, the techniques … Read more
Daubert Doesn’t Look Much Different from Howerton When it Comes to Retrograde Extrapolation
The court of appeals gave the green light last week for law enforcement officers to continue to testify as scientific experts in DWI cases involving retrograde extrapolation–notwithstanding the legislature’s amendment of Rule 702 to adopt the Daubert standard. The court held in State v. Turbyfill that a field technician for the Forensic Test for Alcohol Branch of DHHS (FTA), who was trained as a law enforcement officer and chemical analyst (which authorized him to conduct implied consent testing on breath testing instruments), was properly allowed to testify about a retrograde extrapolation calculation he performed using an FTA form. The technician’s inability to explain whether the rate he used to make the calculation was an “average,” a “mid-point,” or a “conservative” rate—he used all three terms to describe it—did not disqualify him as an expert since he “provided the trial court with a list of some thirty-nine articles . . . regarding blood alcohol research,” and “with North Carolina cases in which this Court upheld the use of retrograde extrapolation to establish blood alcohol content.”