I have written before about the cache associated with a handful of unpublished opinions from the North Carolina Court of Appeals. Sure, they aren’t binding, but they can be persuasive. My guess is that the Court’s December 2023 opinion in State v. C.K.D.. No. COA23-204, 2023 WL 8748032, ___ N.C. App. ___, 895 S.E.2d 923 (2023) (unpublished), has been used as a persuasive tool in more than a few impaired driving cases since it was decided.
The C.K.D. Court upheld the dismissal of impaired driving charges based on the detention of the defendant for 11 hours following his initial appearance pursuant to an impaired driving hold. The Court determined that (1) there was no clear and convincing evidence that the defendant who had registered a 0.17 alcohol concentration posed a danger, and (2) holding the defendant for 11 hours irreparably prejudiced the defendant’s case by depriving him of the opportunity to have others observe his condition, even though the defendant indicated he did not wish to call anyone to witness his condition in the jail or to assume responsibility for him as a sober, responsible adult. I was a bit surprised by the outcome. I would have thought that the alcohol concentration standing alone would have been sufficient to support the hold. I also would have thought that the defendant’s failure to attempt to contact anyone from jail would have defeated his claim of irreparable prejudice. As noted, I would have been wrong on both counts.
This post will discuss C.K.D., explore how it differs from other court of appeals decisions following Knoll, and consider what the takeaways may be for magistrates imposing such holds.
Facts. C.K.D. (more on the initials later) was arrested by a Mooresville police officer for driving while impaired. He submitted to a breath test, which reported an alcohol concentration of 0.17. He then appeared before a magistrate who set a $2,500 unsecured bond. The magistrate also found by clear and convincing evidence based on the defendant’s alcohol concentration, his red, glassy eyes, his slurred speed and the odor of alcohol, that the defendant’s impairment posed a danger if he were to be released. Thus, pursuant to G.S. 15A-534.2, the magistrate ordered C.K.D. held until (1) he was no longer impaired to the extent he presented a danger, or (2) a sober, responsible adult appeared who willing and able to assume responsibility for him.
The magistrate told C.K.D. that he had the right to contact a witness to view his condition in the jail, but C.K.D. indicated that he did not want to contact anyone. Jail officials checked on C.K.D. twice – once after eight hours and once again after more than ten hours. He was released from jail 30 minutes after the second check-in, which was 11 hours after his initial appearance.
C.K.D. moved in district court to dismiss the charges pursuant to State v. Knoll, 322 N.C. 535 (1988), arguing that he had been unlawfully held and that the hold was prejudicial. The district court denied the motion. C.K.D. pled guilty and appealed. He again moved in superior court to dismiss the charges based on the unlawful hold. In superior court, C.K.D. testified that he asked the officers and magistrate if he could call a cab or Uber to take him home. His home was about 30 minutes away, and his wife was there. The magistrate and officers advised C.K.D. that he could only leave with a cab or Uber driver who signed as a sober, responsible adult and agreed to supervise him until he was no longer impaired; they told C.K.D. that a for-hire driver would be unlikely to assume this responsibility. For that reason, C.K.D. testified he did not call an Uber or taxi. He said that he was not offered the opportunity to use a phone during the 11 hours he spent in jail. He also testified that he was told he would not be released until his alcohol concentration was 0.00.
The superior court granted the motion to dismiss, determining that there was no clear and convincing evidence that the defendant’s impairment posed a danger and that his detention deprived him of the opportunity to gather evidence at a crucial time, thereby resulting in actual and substantial prejudice.
The State appealed.
Court’s analysis. The appellate court’s decision in C.K.D., like the trial court’s, was founded on State v. Knoll, 322 N.C. 535 (1988), a case that involved three consolidated impaired driving cases. In each, the defendant made a pretrial motion to dismiss the charges based on a violation of statutory and constitutional rights. Two defendants – Knoll and Warren – were not released to adults who appeared (or expressed a willingness to appear) to assume responsibility for them. A third defendant, Hicks, who had a 0.18 alcohol concentration, was held even though had he been released he could have taken a taxi to his nearby home, where his wife was situated. The state supreme court determined that the charges against all three defendants should have been dismissed since in all three cases the magistrates had committed statutory violations that irreparably prejudiced the defendant’s ability to gather evidence in support of their defense.
Findings not sufficient to show danger. The C.K.D. Court noted that the trial court had found that (1) the defendant was polite and cooperative and there was no evidence that he created a disturbance or would do so if released; (2) the magistrate’s written findings were “‘“BAC .17, Red Glassy Eyes, Slurred Speech, Odor of Alcohol [;]”’” and (3) no other evidence was offered to support a conclusion by clear and convincing evidence that defendant’s level of impairment was such that his release posed a danger. Id. at *4.
Defendant’s 0.17 alcohol concentration did not render him a danger. The Court rejected the State’s argument that the defendant’s alcohol concentration of 0.17 was sufficient clear and convincing evidence by itself to support detaining the defendant. The Court reasoned that such an argument was in “direct contradiction to the holding with regard to defendant Hicks in Knoll,” explaining: “The Court in Knoll was clear that where a defendant could have taken a taxi to be within the presence of his wife in a short amount of time, a BAC of .18, without more evidence to support the defendant would be a threat to himself, others, or property, was not sufficient evidence to support his detention.” Id. Like Hicks, C.K.D. had the ability to obtain a taxi or Uber and be home with his wife within 30 minutes.
The defendant did not waive his rights on the Implied Consent Offense Notice form. The Court further determined that C.K.D. did not waive his right to have family or friends observe his condition outside the jail when he indicated on the Implied Consent Offense Notice form (AOC-CR-271) that he did not want to contact anyone to observe him at the jail. I was surprised by this aspect of the Court’s analysis, as earlier case law indicates that to show prejudice a defendant must exercise the right to contact a witness or a witness must seek to access the defendant. Cf. State v. Labinski, 188 N.C. App. 120 (2008) (concluding that the substantial violation of the defendant’s right to pretrial release did not establish a basis for dismissal since defendant was not denied access to family and friends while in jail; defendant’s friends were at the jail but she did not ask to speak to them). The appellate court cited favorably the trial court’s finding that the defendant intended to travel home by taxi or Uber, but was discouraged from doing so by an officer and magistrate who told him the driver would have to sign as assuming responsibility for him. Moreover, the Court noted that the defendant was not offered an opportunity to use the phone from the jail (apparently the defendant’s indication on the Implied Consent Offense Notice form that he did not want to contact anyone did not alleviate jail officials from their obligation to offer him an opportunity to use the phone) and was confined for 11 hours at a time crucial to his ability to gather evidence.
Thus, the appellate court agreed with the trial court that C.K.D. was detained in violation of his statutory and constitutional rights and suffered irreparable prejudice as a result. The Court held that the charges were properly dismissed.
What is the takeaway for magistrates? C.K.D. is unpublished, so it is not controlling legal authority. Nevertheless, I think magistrates in particular should pay it some attention.
First, C.K.D. contradicts the notion that an alcohol concentration north of 0.14 standing alone is sufficient to support an impaired driving hold.
Second, the Court’s heavy reliance on the rationale provided by the magistrate in C.K.D. on the Detention of Impaired Driver form (AOC-CR-270) indicates that, despite the lack of an explicit statutory requirement for written findings, magistrates should be careful to note on the form all evidence that supports their decision to impose a hold.
Third, C.K.D. makes clear that eight hours was far too long to go without checking in on the defendant. I would not have advised a magistrate to let more than six hours elapse on these facts (assuming dissipation of a person’s alcohol concentration at 0.02 an hour and that a person with an alcohol concentration of .05 or less is no longer impaired to the extent they are a danger, see G.S. 15A-534.2(d)). And requiring that the defendant register a 0.00 alcohol concentration before being released was clearly a statutory violation. See G.S. 15A-534.2(d) (“[U]nless there is evidence that the defendant is still impaired from a combination of alcohol and some other impairing substance or condition, a judicial official must determine that a defendant with an alcohol concentration less than 0.05 is no longer impaired.”)
What is the takeaway for judges? Judges have never had an easy task when it comes to interpreting and applying Knoll. For starters, the Knoll Court’s finding of prejudice in the case of defendant Hicks has always been difficult to reconcile with a magistrate’s statutory obligation to hold impaired drivers whose impairment presents a danger. While Knoll held that Hicks should have been released to take a taxi home to his wife, the Court never mentioned the requirement in G.S. 15A-534.2 that a defendant who is detained pursuant to its provisions may only be released to the custody of a sober, responsible adult who appears before the judicial official ordering the release.
Judges may likewise find it difficult to reconcile C.K.D. with the published cases in Knoll’s wake. After Knoll, relief has been notoriously hard to come by in the appellate courts, which have consistently failed to determine that violations associated with setting conditions of pretrial release or conduct by detention center staff have sufficiently prejudiced a defendant so as to warrant dismissal of charges. See, e.g., State v. Cox, 253 N.C. App. 306 (2017) (concluding that the defendant “was afforded multiple opportunities to have witnesses or an attorney present . . . which he elected not to exercise” and holding that he therefore could not assert that he was prejudiced by the absence of a witness or attorney or the time that elapsed between his arrest and initial appearance); State v. Townsend, 236 N.C. App. 456 (2014) (defendant, who was detained for four hours on a so-called “option bond” that was not supported by written findings failed to establish that he was prejudiced and, thus, failed to establish a basis for dismissal of the charges); State v. Kostic, 233 N.C. App. 62 (2014) (finding that trial court did not err in denying the defendant’s motion to dismiss; trial court’s findings and conclusions were supported by competent evidence; findings including finding that the “‘magistrate was under an obligation not to turn [the defendant] out in the public in [his impaired] condition [based on an alcohol concentration of 0.15 and the magistrate’s observation that the defendant was “‘pretty drunk’”],’” and that the defendant was not prejudiced by his nearly four-hour detention). As I mentioned earlier, aligning C.K.D. with the prejudice analysis Labinski is particularly difficult, given that there the magistrate improperly ordered the defendant held without clear and convincing evidence that she was a danger, but Labinski was deemed not prejudiced since she did not ask to speak to her friends who were at the jail and they did not ask to speak to her. One difference between the cases is that Labinski was held until she could post a secured bond. C.K.D.’s bond was unsecured; thus, the impaired driving hold was all that kept him behind bars.
Finally, why was the defendant referred to by initials? The charges in C.K.D. were dismissed at a time when G.S. 15A-146(a4) (2022) mandated automatic expunction of dismissed charges. (The statutory automatic expunction provisions were subsequently stayed. See S.L. 2022-47 (H 607); S.L. 2023-103 (H 193).) Based on then existing statutory requirements which would otherwise have required destruction of the file, the State moved to preserve the file for purposes of the appeal. The trial court granted the motion, placed the record under seal, and referred to the defendant by initials to protect his identity and thereby preserve the benefit of the expunction.