Got Probable Cause for Impaired Driving?

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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.

State v. Parisi, ___ N.C. App. ___, ___ S.E.2d ___ (2018). This case has been to the court of appeals before. But take heart, readers, I am not going to review its criminal history in this post except to say that the court of appeals granted certiorari review to consider whether the evidence gathered following Parisi’s arrest on impaired driving charges was admissible.

Parisi was stopped at a checkpoint. The officer saw “an open box of alcoholic beverage[]” on the passenger floorboard, but did not see any open individual containers. Parisi, who was driving, had glassy, watery eyes and smelled of alcohol. He told the officer he had consumed three beers earlier in the evening.

The officer administered three field sobriety tests: a horizontal gaze nystagmus (HGN) test, the walk and turn test and the one leg stand test. The defendant’s performance on each test indicated impairment, and the officer arrested Parisi for driving while impaired.

Both the district court and the superior court (reviewing the district court’s preliminary ruling) determined that Parisi’s arrest was not supported by probable cause.

The court of appeals reversed, concluding that the odor of alcohol, the admission of drinking, and multiple indicators of impairment on field sobriety tests were sufficient to establish probable cause. The court noted the similarities between the observations in Parisi and those in State v. Townsend, 236 N.C. App. 456 (2014), in which the court found that the defendant’s bloodshot eyes, odor of alcohol, positive alcosensor results, and clues indicating impairment on three field sobriety tests were sufficient to establish probable cause.

State v. Clapp, ___ N.C. App. ___, ___ S.E.2d ___ (2018). Clapp, unlike Parisi, hasn’t been to the court of appeals before. Clapp himself, however, had been to the police station just three hours before his arrest on the impaired driving charges at issue in this case.

Clapp was first arrested for impaired driving at 9:30 p.m. on September 5, 2015. He submitted to a breath test at 10:25 p.m., which revealed a breath alcohol concentration (BAC) of 0.16. Clapp was released from the Wilkes County Jail at 11:35 p.m.

Thirty minutes later, the officer who had arrested Clapp a few hours earlier saw Clapp seated in the driver’s seat of his car, with the engine running, at a gas station about a half-mile away from the parking lot where he had been arrested earlier. The officer stopped Clapp. He noted that Clapp smelled of alcohol, had slurred speech, and was unsteady on his feet. The officer did not ask Clapp to perform any field sobriety tests. He testified that he knew Clapp had registered a 0.16 BAC on a breath test an hour and 40 minutes earlier, that an average person’s blood alcohol concentration declines by about 0.015 an hour, and that Clark was an average-sized person. Based on his earlier reading and the amount of time that elapsed, the officer concluded that “he still had plenty of alcohol in his bloodstream.” Clapp, who was driving a BMW, said to the officer, “‘How am I supposed to leave a $75,000 car sitting in the Wendy’s parking lot?’” Clapp told the officer that he was driving to “where his son was,” and asked the officer to follow him the rest of the way.

The trial court concluded that these facts were insufficient to establish probable cause. The court of appeals reversed, concluding that the following facts, taken as a whole provided the officer with probable cause:

  • defendant’s admission to driving,
  • defendant’s red-glassy eyes, moderate odor of alcohol, slurred speech, and unsteadiness on his feet; and
  • defendant’s 0.16 BAC result one hour and forty minutes earlier combined with the officer’s knowledge of the standard blood-alcohol elimination rate for an average individual.

Takeaways. The probable cause determinations in Parisi and Clapp were, of course, fact-specific. But given the commonality of investigative procedures utilized by officers in impaired driving cases, these cases, like others decided in recent years (discussed here and here), do provide some general guidance for evaluating probable cause determinations in impaired driving cases. Parisi, for example, demonstrates the significance of poor performance on field sobriety tests. When that performance is combined with evidence that the person has been drinking, the State appears to need little more to clear the probable cause threshold. For its part, Clapp demonstrates that a lack of field sobriety testing, even in a case where no bad driving was observed, does not necessarily deprive the State of probable cause. It also shows the court’s willingness to credit back-of-the-envelope calculations about alcohol elimination rates when those calculations are used to establish probable cause as opposed to proof beyond a reasonable doubt.

4 comments on “Got Probable Cause for Impaired Driving?

  1. We elect to the Court of Appeals and Supreme court Judges that always rule for the State. These judges are more worried about what the voters will think then about what our constitution requires. We do not have a 4th amendment anymore due to the craved out exceptions. And then the UNC Institute of Government who sells itself as a neutral party does everything in its power to make sure the State wins; for example the Judges are trained by this institute (trained to favor a conviction-read Shea Dennings posts on this bog-she seems to get upset if the case provides relief to the defendant). How many lawyers reading this blog have had a judge disappear go off the bench come back and say I talked to the institute and they said the State wins??????? or something like this!!!! I bet you the number is mind blowing; next question; how many times have you had the Judge do the same thing above and come back and state the defendant wins??????? not many i imagine!!! Perfect example the “Turner Cases” Thanks to the GODS OF JUSTICE that we have a judge on the court appeals (Judge Ann Marie Calabria) who didn’t care what the results were after her ruling but she cared about the law and followed the law. NOT MANY JUDGES HAVE THAT TYPE OF COURAGE. Now go to this blog type in Turner case and watch what The State’s greatest resource for convictions Shea Denning has to say about the Turner cases. I rest my case. The UNC institute of government is guilty of not being neutral.

    • So, do you have like….an argument based on law or facts as to why these cases shouldn’t have been decided the way they were…or did you just feel like ranting?

      • ranting

  2. If it walks like a skunk and smells like a skunk, it is likely a skunk People who use alcohol and then drive are a menace to society and I would personally support lowering limits to European standards, such as Estonia’s .02 or at most Scotland’s .05. Any amount of alcohol causes some level of impairment, and even a zero tolerance approach would be fine with me. Want to drink? Great, stay home or get a ride. How many untold thousands of people are killed or maimed every year by people whose ability to make sound split second decisions are compromised by alcohol? Is it worth it? Society historically may have accepted booze as a legal means of intoxication for adults but no society can accept the carnage that results from allowing any level of intoxication while operating high speed machinery at high speeds. If people cannot comprehend the dangers the State must protect the innocent from their inability to make sound judgments. Failure to perform simple tests demonstrating sobriety should be enough to convict no matter the level in the system. We need to crack down on drinking drivers and police ought to be able to get these potential killers of the road based on common sense standards.

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