No legislative session would be complete without amendments to the state’s DWI laws. The 2016 short session upholds this tradition by amending the procedures that govern the admissibility of chemical analyses in impaired driving trials in district and superior court. Continue reading
Tag Archives: DWI
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.
On Fridays, National Public Radio features recordings from its Storycorps booth. These recordings sometimes feature a teacher and student, a parent and child, spouses, or a single person discussing a life-changing experience. They are always thought-provoking, and often are heart-wrenching.
I’m not looking to steal Storycorps’ thunder nor aiming to make anyone cry (a common Storycorps side effect), but I am interested in creating a broadcast for the School of Government that relates to impaired driving. I want to start by hearing from people who have been convicted of misdemeanor impaired driving. I want to know whether and how that experience altered the course of their lives–for the better or for the worse. Continue reading →
No, Justice Ervin didn’t use the words hot mess. But anyone who slogs their way through the tortured procedural swamp that led to State v. Miller, __ N.C. __ (March 18, 2016), is bound to agree that the procedures adopted in 2006 for appeals in DWI cases have created a nearly impenetrable bog for the parties involved. I’m going to do my best here to succinctly explain what happened in Miller. Then I’ll share an idea for freeing litigants and judges from the procedural muck in which they are currently mired. Continue reading →
In its seminal opinion establishing the State’s right to withdraw blood from a DWI suspect over his objection and without a warrant when there are exigent circumstances, the United States Supreme Court left a significant question unanswered. The court in Schmerber v. California, 384 U.S. 747 (1966), noted that the petitioner “is not one of the few who on grounds of fear, concern for health, or religious scruple might prefer some other means of testing, such as the ‘Breathalyzer’ test petitioner refused. . . . We need not decide whether such wishes would have to be respected.” Id. at 771.
So how have courts in the ensuing four decades answered this question? Must an impaired driving suspect be offered the least intrusive type of chemical test available or a choice about the type of testing when he or she has a sincere objection to a particular test?
Proving that a driver was impaired by alcohol is not all that difficult, particularly when the driver submits to a breath test and the result is .08 or more. Proving that a driver was impaired by drugs or by a combination of alcohol and drugs is considerably more challenging. But an opinion released yesterday by the court of appeals demonstrates one way in which it can be done, even without a confirmatory chemical test. Continue reading →
I almost missed this one. While I regularly monitor the published opinions of our state’s appellate courts, I generally skip the unpublished decisions. So I initially overlooked the court of appeals’ opinion in State v. Martinez, ___ S.E.2d ___ (N.C. App. Jan. 5, 2016) (first released as unpublished, but later published), which addresses a recurring question in DWI cases: Must a defendant who does not speak English be advised of statutory implied consent rights in a language that he or she understands?
There are several reasons why I like Volkswagen’s new “Dad, Stop!” commercial showcasing the emergency braking system in the 2016 Passat. First, I drive a teenager to school. He jumps out of the car as quickly as possible when we arrive. Apparently there is nothing to be gained socially by being seen with your mother. So I can identify. Second, I was rear-ended a few weeks ago. The back of my car was damaged, and the car that hit mine had to be towed from the scene. All of its airbags deployed on impact. I’m just glad no one was hurt. Automatic emergency braking (if it works the way it appears to in the commercial) would have prevented that accident.Third, my mother looked over at me in a similar way to the dad in the commercial as we were leaving my wedding rehearsal many years ago. When she looked back ahead, she saw brake lights. She swerved off the road to avoid hitting the car in front of us and ran over a fire hydrant. What a mess. Automatic emergency braking might have gotten us all to the rehearsal dinner on time.
The National Transportation Safety Board also thinks automatic emergency braking, which it calls “collision avoidance technology” is a laudable concept. In fact, promoting the availability of this technology made the NTSB’s 2016 Most Wanted List. NTSB has issued such a list for more than 25 years. The chairman described the list in a recent press conference as a “roadmap from lessons learned to lives saved.” Continue reading →
Most drivers stopped on suspicion of impaired driving are asked to submit to field sobriety tests before they are arrested. Those tests often include the three standardized tests, which researchers have found to enhance officers’ ability to accurately identify impairment: the one-leg stand, the walk-and-turn, and the horizontal gaze nystagmus tests. Officers sometimes use other types of field tests that have not been validated, such as asking participants to recite the alphabet or to conduct counting exercises. Evidence gained from any of these pre-arrest tests may be admitted against the defendant at trial without running afoul of the Fifth Amendment right to be free from self-incrimination. That’s because suspects aren’t in custody for purposes of the Fifth Amendment or Miranda v. Arizona, 384 U.S. 436 (1966) when they are temporarily detained for a traffic stop and are asked a moderate number of stop-related questions. Berkemer v. McCarty, 468 U.S. 420, 440 (1984); State v. Braswell, 222 N.C. App. 176 (2012). But what if the suspect is asked to perform field sobriety tests after he is arrested? Must he first be provided Miranda warnings? Continue reading →
You represent a defendant charged with DWI. You move to suppress evidence in district court. The district court enters a preliminary determination in your favor. The State appeals. The superior court disagrees with the district court and remands the case with instructions to deny your motion. Your client pleads guilty. You appeal to superior court. You want the court of appeals to consider the merits of your motion. What should you do to preserve that right?