Continuing DWI Cases So the Analyst Can Appear

Trial courts may ultimately control their calendars, but there certainly is some power-sharing along the way. The constraints on a trial district court’s authority to manage the flow of litigation are particularly significant in impaired driving cases. Indeed, G.S. 20-139.1(e2) requires that implied consent cases in district court be continued until the chemical analyst who analyzed the defendant’s breath, blood or urine can be present—unless the defendant waives his or her constitutional right to confront the analyst at trial.

Trial courts normally exercise discretion in determining whether to grant a motion to continue. However, a trial district court ruling on a motion to continue by the State in an impaired driving case in order to secure the presence of a chemical analyst must consider G.S. 20-139.1(e2), which plainly states that “[t]he case shall be continued until the analyst can be present.” This subsection goes on to provide that “[t]he criminal case shall not be dismissed due to the failure of the analyst to appear, unless the analyst willfully fails to appear after being ordered to appear by the court.” This latter statement is a curious directive, given that trial courts do not have the authority to dismiss a criminal case due to a witness’s failure to appear. Cf. State v. Joe, ___ N.C. ___, 723 S.E.2d 339 (2012) (concluding that trial court lacked authority to dismiss case on its own motion; noting that a trial court may grant a defendant’s motion to dismiss under G.S. 15A–954 or G.S. 15A–1227 or the State may dismiss pursuant to G.S. 15A–931); G.S. 15A-954 (setting forth grounds for dismissal in criminal proceedings, none of which relate to the absence of evidence); G.S. 15A-1227 (providing that a motion for dismissal for insufficiency of the evidence may be made upon close of the State’s evidence and at subsequent junctures). Perhaps this latter provision of G.S. 20-139.1(e2) indicates that the trial district court may deny the State’s motion to continue if the analyst willfully fails to appear pursuant to a court order, but, in other circumstances, must grant the State’s motion.

In short, the legislature has instructed district courts that they must continue certain implied consent cases so that a chemical analyst may appear. An exception may apply for cases in which the analyst does not appear after having been ordered to do so by the court.

May the legislature involve itself so directly with the trial courts’ management of cases? Our appellate courts have not considered the constitutionality of G.S. 20-139.1(e2), but I think the answer this question is yes—to some extent. Article IV, Section 13(2) of the North Carolina constitution authorizes the General Assembly to “make rules of procedure and practice for the Superior Court and District Court Divisions,” but provides that “[n]o rule of procedure or practice shall abridge substantive rights or abrogate or limit the right of trial by jury.” The continuance rule in G.S. 20-139.1(e2) is a rule of a procedure that appears capable of application in a way that does not violate a defendant’s constitutional rights. If, for example, the State files a single motion to continue in a DWI case seeking calendaring of the case on a date at which the analyst is available to testify, the granting of that continuance pursuant to the statutory directive would not, absent additional facts, violate a defendant’s rights. However, if the State seeks a continuance to secure the presence of an analyst in a DWI case twelve months after the defendant is charged, after having been notified that the previous continuance granted was the last to be afforded to the State, the rote application of G.S. 20-139.1(e2) over a defendant’s objection might violate a defendant’s right to speedy trial and other substantive rights. Cf. Simeon v. Hardin, 339 N.C. 358, 377-79 (1994) (determining that the statutes granting the district attorney calendaring authority were facially valid but that there was a genuine issue of material fact as to whether the statutes were being applied in an unconstitutional manner). A trial district court wishing to avoid this issue might, after granting the first continuance, order the analyst to appear at the next trial date, thereby invoking the apparent exception in G.S. 20-139.1(e2).

Because chemical analysis results often are the State’s best evidence of impairment and there are far more cases than analysts, I suspect that the State frequently relies upon the protections of G.S. 20-139.1(e2) when seeking a continuance. Readers, if you have litigated the issue of a trial district court’s authority to deny a motion to continue in light of this provision, let us know the outcome and the court’s reasoning.

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