DWI Appeal Procedures: Fowler and Palmer

Two statutes enacted as part of the Motor Vehicle Driver Protection Act of 2006, G.S. 20-38.6 and 20-38.7, significantly altered district court procedures for implied consent offenses committed on or after December 1, 2006.   G.S. 20-38.6(a) requires that motions to suppress evidence or dismiss charges in such cases be made pre-trial, except for motions to suppress based upon facts newly discovered during trial and motions to dismiss for insufficient evidence. G.S. 20-38.6(f) prevents a district court judge from immediately entering a final judgment granting a defendant’s motion to suppress or dismiss.  Instead, a district court judge who determines that such a motion should be granted must issue a written preliminary determination which the state may, pursuant to G.S. 20-38.7(a), appeal to superior court.  If the findings of fact are disputed, the superior court determines the matter de novo. The superior court then enters an order remanding the case to district court for entry of a final judgment granting or denying the motion.

These procedures were enacted to create a mechanism by which the state could seek review of a district court’s decision to suppress evidence or dismiss a case without running afoul of the Double Jeopardy Clause. State v. Morgan, 660 S.E.2d 545 (2008), demonstrates nicely the application of the bar against double jeopardy to prevent the state from appealing the dismissal of implied-consent charges if the basis for the decision was insufficiency of the evidence, even where the lack of evidence results from erroneous findings. By requiring pre-trial motions, the new procedures require determinations of most motions to suppress before jeopardy attaches. Because, however, such motions may also be raised during trial – after jeopardy has attached – based upon newly discovered evidence, there remain situations in which a district court judge’s granting of a motion to suppress or dismiss may resolve factual elements of the offense charged, thereby constituting an acquittal for Double Jeopardy purposes.

Yesterday, the Court of Appeals issued two opinions ruling on the constitutionality and logistics of the new procedures:  State v. Fowler, here, and State v. Palmer, here.

Fowler analyzes and ultimately rejects challenges to the procedures on due process, equal protection, and other constitutional grounds. It also answers several questions about the scope of the procedures. For example, the opinion is particularly notable for interpreting G.S. 20-38.6 and G.S. 20-38.7 in a matter that limits the state’s right to appeal from district court rulings on motions to suppress or dismiss made during trial. The court upheld the constitutionality of the procedures as applied in Fowler’s case, which involved a pre-trial motion to suppress evidence based upon a lack of probable cause. Significantly, however, it held that the state could appeal only from a district court’s preliminary determination that is (1) made at a time before jeopardy has attached (that is, before the district court sits as the trier of fact to adjudicate the defendant’s guilt), and (2) is “entirely unrelated to the sufficiency of the evidence as to any element of the offense or to defendant’s guilt or innocence.” The court held that G.S. 20-38.6 and G.S. 20-38.7 should not be construed to grant the State the right to appeal to superior court upon the district court’s granting of a motion to suppress evidence or to dismiss charges during trial. The court concluded that the General Assembly intended pretrial motions to suppress evidence or dismiss charges under G.S. 20-38.6(a) “to address only procedural matters including, but not limited to, delays in the processing of a defendant, limitations imposed on a defendant’s access to witnesses, and challenges to the results of a breathalyzer.”

Given the court’s ruling, the requirement that judges issue preliminary determinations seems to complicate the procedures in implied consent cases without having any real impact.  If only pre-trial motions are subject to review by the superior court, the General Assembly could have permitted district court judges to enter final rulings on such motions that could be appealed to superior court for review before jeopardy attached, in much the same way that G.S. 15A-979(c) permits the state to appeal superior court orders granting motions to suppress.

The court also devotes a fair bit of analysis to the state’s right of appeal at various other junctures in implied consent cases, concluding that in Fowler, the state will have no right to appeal from the district court’s entry of an order upon remand suppressing the challenged evidence.

For its part, State v. Palmer considers the proper method for appealing a district court’s preliminary determination. In approving the method used by the state in Palmer, the court provides direction that is difficult to glean from the Spartan appeal provisions in G.S. 20-38.7(a).  Perhaps most significantly, Palmer declines to engraft onto G.S. 20-38.7(a) the ten-day time limit for appeals in G.S. 15A-1432, though the court considered other provisions of G.S. 15A-1432 as analogous to the implied consent provisions.

As always, I’d love to know what you think.

12 thoughts on “DWI Appeal Procedures: Fowler and Palmer”

  1. My take on the Palmer case (I hope) is that even though the Court of Appeals did not require the State to comply with the 10 day NOA filing requirement of 15A-1432, they will agree that the State has to comply with the other provisions of that statute (i.e., filing NOA that sets out the basis for the appeal).

    In my district (Moore County) the State has not been filing written notices of appeal, instead they have simply been placing the DWI’s they lost in district court on the superior court calendar for another bite at the apple.

  2. Despite the existence of GS 20-38.6(a) and the results of State v. Fowler, I have still yet to actually see the defense file a pre-trial motion as required. Instead they always object during trial even when the facts were previously known to the defense. This unlawful action is allowed and the state is unable to appeal it because jeopardy has attached. I recently lost a DWI trial where the judge erroneously agreed with the defense that Miranda was triggered on a traffic collision investigation. Officer arrives on scene and immediately asks the driver what happened. The driver’s statements, unbelievably, were not allowed in. The defense clearly knew about this before trial and should not have been allowed to object. It never ceases to amaze me how ridiculous District Court can be.

    • I’m curious as to whether your district provides discovery to defendants in implied consent cases. If not, do you think a formal discovery policy for such cases would make a difference?

      • Suppression motions in DWI cases do not have to be “filed” pretrial, only argued prior to trial unless prior unknown facts develop during trial. There is no requirement for a written motion to be filed. A written motion was required in one version bill offered during the debate for the 2006 legistlative changes, but was omitted from the final bill.

        As a matter of courtesy, most attorneys in my district will file something indicating their intent to argue a suppression motion in a DWI case, but it is usually a barebones filing that is not too specific (lest an overinvested officer tailor testimony to get around the objection).

        I agree that an open file policy in district court for DWI’s would eliminate most if not all reasons to object mid-trial with a suppression motion, and it would probably lead to fewer cases being tried in general.

  3. Per NCGS 7A-196, there shall be no trials in district court. Per NCGS 15A-606, the only pre-trial motion allowed in district court is a probable cause hearing. Thus, double jeopardy doesn’t apply because you’re not getting a “new trial” in superior court, you’re getting a first trial due to probable cause found.

    Also, supreme ct. chief justice Parker apparently never thought it was important to order the AOC to create a court form to enforce probable cause hearings in district court, which has impacted potentially everyone who has ever been a defendant in NC. And Gov. Perdue just awarded Parker a lifetime achievement award for ignoring the $100 million crime in the AOC reported by the state auditor.

  4. i was just involved in a case in district court; in which we heard a motion to dismiss because the State destroyed evidence. the court ruled in my favor and agreed that the state destroyed evidence on purpose and dismissed the case. after a close reading of Fowler and the law i don’t think the state can appeal this matter. Any other views. I read Fowler to allow these appeals in very very limited matters-like lack of Probable cause, witnesses not available and problems with alcohol testing devices, etc–all matters related to DWI’s. My motion had nothing to do with those type of matters-it dealt with video tape recordings being deleted.

    • Interested in this as well. My attorney thought the same but the state appealed anyway and won and now my case is old like 4+ years. Also Destruction of evidence, Brady Motion, Not youngblood but no implied consent issue but a constitutional issue. My case is still open and I want to fight but losing hope. Any update in your matter and any help greatly appreciated. My orginal attorney would agree with you be he left the firm mid case.

  5. I was just involved in a case where the District Court judge ruled to suppress evidence in a case where there was no reasonable cause for an officer to pull the defendant over. The DA appealed the District Court judges decision. How long will it take to get the appeal heard so that they can have the hearing and the case finalized?


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