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Only Experts Can Testify About HGN

Author’s note:  I added the conclusory paragraph at the end of this post shortly after its initial publication in response to helpful questions from readers about the significance of State v. Godwin and State v. Torrence.

Like Supercalifragilisticexpialidocious, horizontal gaze nystagmus is a mouthful. Unlike Supercalifragilisticexpialidocious, not just anyone can utter horizontal gaze nystagmus and sound wise beyond her years. Two recent court of appeals opinions hold that that a witness be qualified as an expert before testifying about the results of a horizontal gaze nystagmus test.

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N.C. Court of Appeals Rules That Defendant Did Not Make An Unambiguous Assertion of Right to Counsel Under Miranda to Bar Officer’s Custodial Interrogation

The United States Supreme Court and North Carolina appellate courts have ruled that a defendant must make an unambiguous request for counsel under Miranda to bar an officer’s custodial interrogation. A week ago, the North Carolina Court of Appeals in State v. Taylor (April 19, 2016), ruled that the defendant did not make an unambiguous request for counsel under Miranda. This post provides the background to this issue and discusses the Taylor ruling.

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Court of Appeals: Pleading Standards Are Relaxed for Citations

Last week, the court of appeals decided State v. Allen, a case that holds that the pleading requirements that apply to indictments and other accusatory pleadings don’t necessarily apply to citations. The opinion is helpful to the State, but I think there’s a reasonable chance of further review.

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News Roundup

House Bill 2 continues to be a major topic in the local and national news this week.  As the Charlotte Observer reports, Governor McCrory defended the legislation on NBC’s “Meet the Press” on Sunday morning.  McCrory’s appearance followed his issuance of an Executive Order last week that calls for the legislature to restore a State cause of action for wrongful discharge based on employment discrimination, but does not call for changes to the controversial restroom regulations.

On Tuesday, the Fourth Circuit Court of Appeals issued a 2-1 decision that reversed a lower court’s dismissal of a transgender high school student’s lawsuit alleging that his local school board discriminated against him in violation of Title IX by banning him from using the boys’ restroom at his school.  The Fourth Circuit determined that the lower court did not “accord appropriate deference to the relevant Department of Education regulations” which the Department has interpreted as requiring schools to treat transgender students consistent with their gender identity.  As the Charlotte Observer reports, the McCrory administration filed a brief in the case supporting the Virginia restroom ban.

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Warrant Required for Testing of Unconscious DWI Suspect

The United States Supreme Court heard oral arguments this morning in three cases involving the chemical testing of impaired drivers. The question before the court in each case is whether, in the absence of a warrant, a state may make it a crime for a person to refuse to take a chemical test to detect the presence of alcohol in the person’s blood. I’m eager to hear what the high court has to say about this issue and to learn whether it will impact North Carolina’s implied consent laws, which, like the laws in every other state, do provide for warrantless chemical testing, but which do not criminalize refusal to be tested. But we don’t have to wait for the Supreme Court’s opinion to see how our state’s implied consent laws are evolving in a post-Missouri v. McNeely world. The North Carolina Court of Appeals decided a significant case yesterday, ruling in State v. Romano, __ N.C. App. ___ (2016), that the warrantless withdrawal of blood from an unconscious impaired driving suspect violated the Fourth Amendment, notwithstanding a state statute that permits such actions.

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Reverse Batson Challenge Sustained

In the recent case of State v. Hurd, the N.C. Court of Appeals upheld a claim by a prosecutor that a defendant’s peremptory strike of a prospective White juror was racially discriminatory, which is the second time that our appellate courts have upheld such a claim. This post briefly reviews the legal requirements for challenges under Batson, analyzes the court’s reasons for sustaining the prosecutor’s challenge in Hurd, and considers the lack of appellate decisions in North Carolina upholding defense challenges to prosecutors’ peremptory strikes of jurors of color.

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State Supreme Court Reverses Court of Appeals Regarding Authentication of Surveillance Video

The Supreme Court of North Carolina just decided State v. Snead, a case about the authentication of surveillance video. The court adopted a more relaxed approach to authentication than the court of appeals had taken. Because the authentication of video is an increasingly common issue, it is worth digging into the case.

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News Roundup

Officer-involved shootings have been a frequent topic of national news in recent months.  This week, there have been notable developments in two North Carolina cases.  First, the News and Observer reports that a Harnett County grand jury declined to indict a sheriff’s deputy, Nicholas Kehagias, who shot and killed John Livingston in November.  The report indicates that the decision comes “after months of unease in Harnett County” that included protests in front of the courthouse by Livingston’s friends and family.  The jury reportedly was asked to consider second-degree murder charges.  Though Kehagias will not face criminal charges, the News and Observer reports that Livingston’s family will pursue a civil case against him.

The other North Carolina case in the news involves a February incident in which Raleigh police officer D.C. Twiddy shot and killed Akiel Denkins.  WRAL reports that Wake County District Attorney Lorrin Freeman announced Wednesday that no criminal charges will be filed against Twiddy.  The announcement follows an SBI investigation into the incident.  The report says that community leaders “appeal[ed] for calm in the community” at a prayer vigil on Wednesday night, and notes that local officials praised the community for maintaining calm throughout the investigation.  Keep reading for more news:

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