North Carolina Criminal Law Blog

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  None of these rules apply, however, when blood is withdrawn pursuant to a search warrant.

Yesterday, the Supreme Court decided Rodriguez v. United States, an important traffic stop case that changes North Carolina law as it pertains to certain drug dog sniffs, and perhaps other investigative techniques as well.

The maximum punishment for driving while impaired in violation of G.S. 20-138.1 increased from two to three years in 2011. As a result, defendants convicted of misdemeanor DWI and sentenced at the most serious level—Aggravated Level One—are prohibited from possessing firearms by federal law. That’s because federal law prohibits firearm possession by a person who has been convicted of a crime punishable by imprisonment for a term exceeding one year, though state law misdemeanors that are punishable by a term of imprisonment of two years or less are excluded from this category of disqualifying convictions. Because North Carolina law sets out a single offense of driving while impaired, which may be punished at varying levels, rather than six separate offenses, there is a question as to whether any defendant convicted of misdemeanor DWI on or after December 1, 2011 may lawfully possess a firearm, regardless of the level at which the defendant was actually punished.

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?

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?

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

I live in Durham, where the ELF is built. The ELF is a pedal-and-electric-powered reverse tricycle with an egg-shaped body and a solar panel roof. It is certainly unique. A 360-degree view is available here. Organic Transit, the company that builds the ELF, states that it “gets the equivalent of 1800 m.p.g.”

What does this have to do with criminal law? Well, the company recently introduced the Tactical ELF, designed to “give[] [law enforcement agencies] the tactical advantage for community policing.” An endorsement from Duke’s campus police comments that “It’s like a small patrol car.” I doubt that the ELF is going to be a mainstream law enforcement vehicle anytime soon, but it did get me thinking about the fuel efficiency of law enforcement vehicles generally. This post summarizes what I learned.

Spring is upon us, and today’s post addresses the top five DWI sentencing questions of the season. 

Defendants who drive while impaired while their licenses are revoked for another impaired driving offense or who drive while impaired without a license and without car insurance risk more than criminal prosecution. The vehicles they drive must be seized, and, if they are convicted, will be ordered forfeited. To speed up the forfeiture process, DWI cases involving vehicle forfeitures must be scheduled within 30 days of the offense. But they rarely, if ever, are. Are defendants entitled to relief when the statutory scheduling directive is ignored?  And can that relief come in the form of the dismissal of criminal charges?

Officer Fife is driving one car length behind Briscoe Darling at noon on a sunny day when he sees the tires on the right side of Darling’s car touch the fog line that borders Darling’s lane to the right. Darling drives on the fog line for a couple of seconds before his tires re-enter the unmarked portion of the lane. A half mile later, Darling’s tires again touch the fog line for a few seconds.

Officer Fife is driving one car length behind Charlene Darling at noon on a sunny day when he sees the tires on the right side of Darling’s car cross over the fog line that borders Darling’s lane to the right. Darling immediately moves her car back into the unmarked portion of the lane.

Officer Fife is driving one car length behind Mitch Darling at 9 a.m. on a cold winter morning when he sees the tires on the right side of Darling’s car cross over the fog line that border’s Darling’s lane to the right.  After a few seconds, Darling moves his car back into the unmarked portion of the lane. Officer Fife is aware that the road the two are traveling is icy in spots.

Officer Fife is a stickler for compliance with motor vehicle laws.  He believes it is his duty to stop anyone who commits a traffic offense, no matter how minor. Which Darling or Darlings may he lawfully stop, and why?