I spent much of the afternoon teaching magistrates, and one of the topics we covered was the immediate license revocation that often is ordered upon a person’s arrest for impaired driving.
Motor Vehicles
May a Defendant Appeal an Infraction to Superior Court?
Suppose a defendant is found responsible in district court for one of the many infractions codified in Chapter 20. Take your pick: speeding, a seat belt violation, jaywalking, improper passing, or one of the many other non-criminal motor vehicle offenses. The defendant wishes to appeal that adjudication. May she appeal the case to superior court?
A Bright Line Rule for Traffic Stops
A couple of recent court of appeals opinions emphasize a bright-line rule in cases involving traffic stops. An officer who observes a driver commit a traffic violation may stop the driver to address that violation, even when the violation is minor and the officer has elected to respond to the observed violation because she suspects that other unsubstantiated criminal activity may be afoot.
Got Probable Cause for Impaired Driving?
Two recent North Carolina Court of Appeals opinions help delineate when an officer has probable cause to believe a driver is driving while impaired. In each case, the court of appeals reversed the trial court’s determination that the officer lacked probable cause.
Supreme Court: Driver of Rental Car, Not Listed on Rental Agreement, Has Reasonable Expectation of Privacy
A week ago today, the Supreme Court of the United States resolved a circuit split and ruled that a person driving a rental car, but not listed on the rental agreement, has a reasonable expectation of privacy in the vehicle . . . at least sometimes. The case is Byrd v. United States.
State v. Eldred: Court of Appeals Evaluates Sufficiency of Circumstantial Evidence of DWI
Consider whether the following facts are sufficient to support a conviction for DWI:
The scene. Law enforcement officers in Avery County respond to a reported accident on the highway leading to Grandfather Mountain around 8:30 p.m. They find a Jeep Cherokee on the side of the highway, with a damaged side panel. Tire impressions indicate that the vehicle traveled about 100 feet after leaving the roadway. A large rock embankment along the roadway is scuffed. No one is in the car, which is registered to Paul Eldred.
The defendant. A law enforcement officer finds Eldred walking along the side of the highway two or three miles north of the accident. Eldred has a mark on his forehead, is twitching, and is unsteady on his feet. The officer asks Eldred why he is walking on the highway. Eldred responds: “I don’t know, I’m too smoked up on meth.” The officer calls for medical help, and Eldred is taken to the hospital.
The interview. Another officer questions Eldred at the hospital around 10 p.m. Eldred explains that he was driving his car when it ran out of gas. He then says “‘he was hurt bad and was involved in a wreck a couple of hours ago.’” Eldred tells the officer that he had not been drinking alcohol. The officer asks whether Eldred has taken any medications, and Eldred says he is “on meth.” During the interview, Eldred is twitching, appears dazed and has difficulty answering questions. He does not know the date, the day of the week, or the time.
State v. Fincher: No Foundation Required for DRE Testimony
The court of appeals held yesterday in State v. Fincher, ___ N.C. App. ___, ___ S.E.2d ____ (2018), that the trial court did not abuse its discretion when it permitted a drug recognition expert to testify in a DWI trial that the defendant was under the influence of a central nervous system depressant. The defendant argued that the State failed to lay a sufficient foundation to establish the reliability of the drug recognition examination, but the court determined that no such foundation was required as the General Assembly had legislatively sanctioned the admission of this type of evidence under Rule 702(a1)(2).
Shhhh! Whisper Stops and U.S. v. Bowman
I recently summarized a Fourth Circuit traffic stop case arising out of western North Carolina, U.S. v. Bowman, 884 F.3d 200 (4th Cir. 2018). It’s an interesting case in its own right as an application of U.S. v. Rodriguez, 135 S. Ct. 1609 (2015) (holding that extensions of a traffic stop must be supported by reasonable suspicion). In short, the Fourth Circuit reversed the trial court’s denial of the defendant’s motion to suppress, finding that the trooper lacked reasonable suspicion to extend the stop after the traffic stop was completed and vacating the defendant’s drug conviction. There are interesting issues in the case about when a seizure occurs and about whether the defendant consented to the extension of the stop, and readers are encouraged to check out the case, or at least the summary here (you can read all of the Fourth Circuit case updates here).
What caught my eye about it was a footnote in the opinion. Before the state trooper encountered the defendant, the Drug Enforcement Administration (“DEA”) passed along a tip to the local authorities in N.C. that the defendant’s vehicle was suspected of trafficking meth. That tip provided the vehicle’s license plate number and a description (“a red, older model Lexus”). According to the footnote, “The government agrees that the DEA tip should not be considered in any way in our legal analysis.” Slip op. at 3 n.1. Why would that be? After some digging and help from attorneys in the Charlotte Office of Federal Public Defender (thanks again to Ann Hester, Kevin Tate, and Mary Ellen Coleman from that office for talking about the case with me), I was able to determine that this was an instance of a so-called “whisper” stop. Although not exactly a new practice, its application in the digital age raises interesting questions. The tip aspect of the case is not discussed in Bowman beyond the brief mention in the footnote, but the case is a clear sign that the practice is occurring in North Carolina and elsewhere, so I wanted to cover it in today’s post.
Is Your Neighborhood’s 17 MPH Speed Limit Enforceable?
I was out for a run the other day when I saw signs posted on a private pathway advising me not to exceed 7.5 miles per hour since children were playing. Sadly for my split times (but happily for the children at play), I was in no danger of exceeding this limit. Those signs reminded me, however, of a question that I’m asked from time to time: Are the speed limits posted on private subdivision streets enforceable?
Rules for Breath Tests in DWI Cases
The easiest way for the State to prove impairment in a prosecution for impaired driving is by introducing the results of a test of the defendant’s breath. Such test results are admissible without the foundation that would otherwise be required for this kind of scientific evidence so long as the testing was carried out in accordance with statutory and administrative rules governing implied consent testing. G.S. 20-139.1(b). Because the rule allowing breath test results to be introduced into evidence is relied upon so often, I thought it might be helpful to review the admissibility rule and the requirements for such tests.