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State v. Forney: Chewing Gum, Breath Tests, and Prejudice

In impaired driving cases, the results of a breath test of the defendant are admissible at trial when the testing is performed in accordance with statutory requirements and applicable administrative regulations. G.S. 20-139.1(b). When the testing is not carried out as required, however, the results are inadmissible. See State v. Davis, 208 N.C. App. 26, 34 (2010).

Among the testing requirements is that the law enforcement officer carrying out the test observe the defendant to determine that he or she “has not ingested alcohol or other fluids, regurgitated, vomited, eaten, or smoked in the 15 minutes immediately prior to the collection of a breath specimen.” See 10A NCAC 41B .0101(6) (defining “observation period” and specifying further that “[d]ental devices or oral jewelry need not be removed”); 10A NCAC 41B .0322 (requiring that observation periods be met before breath test is conducted). The purpose of the observation period is to ensure that the test results reflect the concentration of alcohol in a sample of the person’s deep lung breath rather than an alcohol concentration based on alcohol in the person’s mouth.

Last week, the Court of Appeals in State v. Forney, ___ N.C. App. ___, ___ S.E.2d ____ (January 16, 2024), considered whether tests results from a defendant who had chewing gum in his mouth during the observation period were admissible under G.S. 20-139.1(b).

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State v. Woolard: DWI, Probable Cause, and Motions Procedures

Because the State’s ability to prove impairment in prosecutions for driving while impaired often turns on whether the officer had probable cause to arrest — and thereafter test — the defendant, probable cause to make a warrantless arrest is a frequently litigated issue in DWI cases. While for many years there was a dearth of case law exploring the hard calls in this area, that trend has changed. In several arguably close cases over the past decade, the appellate courts have considered whether impaired driving arrests by law enforcement officers were supported by probable cause. See State v. Parisi, 372 N.C. 639 (2019) (driver’s admission to drinking, his red and glassy eyes, his odor of alcohol, and multiple indicators of impairment on field sobriety tests established probable cause; affirming court of appeals’ opinion reversing trial court); State v. Lindsey, 249 N.C. App. 516 (2016) (odor of alcohol on driver’s breath, red and glassy eyes, admission to drinking, and five clues of impairment from horizontal gaze nystagmus test provided probable cause; affirming trial court order denying motion to suppress); State v. Overocker, 236 N.C. App. 423 (2014) (light odor of alcohol and consumption of three alcoholic drinks in four-hour period were insufficient to establish probable cause; affirming trial court order granting motion to suppress); and State v. Townsend, 236 N.C. App. 456 (2014) (driver’s odor of alcohol, positive results on portable breath test, bloodshot eyes, and signs of impairment while performing field sobriety tests established probable cause; affirming trial court’s denial of motion to suppress).

Last December, the North Carolina Supreme Court added to that list with its opinion in State v. Woolard, ___ N.C. ___, 894 S.E.2d 717 (2023) reversing, upon certiorari review, the trial court’s determination that an arresting officer lacked probable cause for impaired driving. This post will review Woolard, its holding, and its path to the state’s highest court.

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State v. Burris and Blood Draws from Unconscious DWI Suspects

Four years after a plurality of the United States Supreme Court in Mitchell v. Wisconsin, 588 U.S. ___, 139 S. Ct. 2525 (2019), announced a State-favorable exigency rule for withdrawing blood from a suspected impaired driver who is unconscious, the North Carolina Court of Appeals in State v. Burris, COA22-408, ___ N.C. App. ___ (July 5, 2023), has applied the rule for the first time. This post will review the holding in Mitchell and the Court of Appeals’ analysis in Burris and will conclude with a summary of the Fourth Amendment limitations on implied consent testing.

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How Does the Confrontation Clause Impact the Introduction of a Defendant’s Medical Records in a DWI Trial?

Two weeks ago, I wrote about the foundational requirements for introducing a defendant’s medical records in a DWI trial. Soon after I posted, a reader asked whether introducing those records through an affidavit from a records custodian violates a defendant’s Sixth Amendment right to confront witnesses against him or her. My answer is, generally speaking, no.

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Alcohol Concentration Restrictions on Restored Licenses and the Enforcement of Violations

When a person is convicted of driving while impaired under G.S. 20-138.1, the person’s license is revoked for one year. G.S. 20-17(a)(2); G.S. 20-19(c1). (A person who has one or more prior convictions for an offense involving impaired driving may be subject to a longer period of revocation, depending on when those offenses occurred.) At the conclusion of that one-year revocation period, the person may seek to have his or her license restored by furnishing proof of financial responsibility and by paying a restoration fee of $140.25. G.S. 20-7(c1), (i1). The license then may be restored with a restriction prohibiting the person from operating a vehicle with an alcohol concentration of 0.04 or more at any relevant time after the driving. G.S. 20-19(c3). That restriction, listed on the driver’s license as Restriction 19, remains in effect for three years. This post addresses how such a restriction is enforced and the consequences for a substantiated violation.

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State v. Rouse and Circumstantial Evidence of Driving

To prove impaired driving, the State must establish that the defendant drove a vehicle while impaired. A person drives when he or she is “actual physical control of a vehicle which is in motion or which has the engine running.” G.S. 20-4.01(25). Sometimes the State may establish driving through direct evidence. For example, a law enforcement officer or another witness may observe the defendant driving and may testify to that fact. In other cases, a law enforcement officer may encounter the person the officer believes was driving after the driving has concluded, perhaps in or near the car or at some other location. In those cases, the State may seek to establish driving based on circumstantial evidence. The Court of Appeals’ recent opinion in State v. Rouse, 2022-NCCOA-496, __ N.C. App. ___ (July 19, 2022), considers when such circumstantial evidence is sufficient to survive a motion to dismiss.

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2021 Statistical Report for Driving While Impaired Convictions Now Available

Last week, Jamie blogged about the 2021 Structured Sentencing Statistical Report from the North Carolina Sentencing and Policy Advisory Commission. As Jamie noted, that report contains detailed information related to felony and misdemeanor sentences imposed in Fiscal Year 2021, including the most commonly used felony grid cell, the number of convictions by district, average probation length, and typical sentencing outcomes for the most charged offenses. Because that report analyzes felony and misdemeanor convictions and sentences imposed under the Structured Sentencing Act, it does not include information about one of the most commonly charged misdemeanors in North Carolina: driving while impaired, which is sentenced under the sentencing scheme set out in G.S. 20-179. The Sentencing and Policy Advisory Commission prepares a separate report each year analyzing those convictions, and the Driving While Impaired Convictions Statistical Report for Fiscal Year 2021 is available here. Read on for highlights from the report, which contains data about convictions under G.S. 20-179 from July 1, 2020 through June 30, 2021.

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Enforcing Ignition Interlock Requirements

I wrote last week about changes to North Carolina’s ignition interlock statutes that were effective June 1, 2022.  As I noted in that post, one of those changes was to eliminate the time and purpose restrictions that otherwise apply to limited driving privileges if ignition interlock is required as a condition and the person is driving a designated vehicle equipped with ignition interlock. Another was to require vendors to waive a portion of ignition interlock costs for a person ordered by a court or required by statute to install ignition interlock but who is unable to afford the system. These changes and others enacted by S.L. 2021-82 were recommended by the Ignition Interlock Subcommittee of the Statewide Impaired Driving Task Force as part of a package of reforms designed to expand the use of ignition interlock and, in turn, to improve traffic safety. It remains to be seen whether the legislation will have that effect.

One determinant may be whether drivers see the benefit of broader driving privileges as being worth the cost of ignition interlock. A judge may be more likely to impose the condition when it is sought by an applicant. Another factor may be whether judges believe that ignition interlock is an effective countermeasure to impaired driving (researchers in fact identify interlock as among the leading countermeasures) and whether ignition interlock requirements in limited driving privileges are enforced in practice. This post addresses this last issue by reviewing the mechanisms for enforcing ignition interlock requirements and the sanctions for violation of ignition interlock conditions imposed by a court as part of a limited driving privilege.

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Applying the Statute of Limitations to Failure to Appear for an Implied Consent Offense

Nearly 15 years ago, the General Assembly created the misdemeanor offense of failing to appear for two years for an implied consent offense. See S.L. 2006-253 (enacting new G.S. 20-28(a3), effective for offenses committed on or after December 1, 2006). The new provision was proposed by the Governor’s Task Force on Driving While Impaired in order to impose special sanctions for a person who fails to appear in court for this particular kind of motor vehicle offense. Those sanctions include driver’s license revocation for a person convicted of a violation of G.S. 20-28(a3)(2).

In the early years after the statute was enacted, there were many questions about which offenses it applied to. Offenses charged before December 1, 2004 for which the person had already failed to appear for two years before the statute’s effective date? Arguably not, for ex post facto reasons, as Jeff opined here. What about offenses charged a bit later for which the defendant already had failed to appear before December 1, 2006? Perhaps not, given the presumption of prospective application, as I wrote here. More recently questions have arisen about how to calculate the two-year statute of limitations for such an offense. Suppose, for example, a defendant was charged with DWI on January 1, 2017. The defendant failed to appear in court. On June 2, 2021, the State charged the defendant with failure to appear for two years after being charged with an implied consent offense. Does the two-year statute of limitations in G.S. 15-1 bar the prosecution?

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