A UNC School of Government Blog
A few weeks ago, I blogged about the offense of operating while impaired. One of the issues I raised in the post was whether telling a defendant that his or her refusal to submit to a breath test in such a case was admissible at trial amounted to coercion that rendered the consent involuntary. A … Read more
Earlier posts (here, here, and here) discuss the statutory and constitutional requirements for obtaining a sample of a defendant’s blood for analysis in an implied-consent case. This post likewise addresses blood draws in such cases but addresses two narrower issues. First, must the State establish that the blood was drawn by a qualified person before … Read more
I blogged here about the North Carolina Court of Appeals’ initial opinion in Lee v. Gore, ___ N.C. App. ___ (January 19, 2010), holding that DMV lacked authority to revoke the petitioner’s driving privileges for refusing a chemical analysis upon receipt of an affidavit that failed to allege a willful refusal. DMV filed a petition … Read more
The court of appeals in State v. Simmons, ___ N.C. App. ___ (July 20, 2010), decided this week, awarded a new trial to a defendant convicted of impaired driving, finding that the prosecutor made improper and prejudicial remarks in his closing argument. The court found a substantial likelihood that these comments led the jury to … Read more
No, those aren’t the odds that I’ll finish first in the NCAA tournament pool that I’ll neither confirm nor deny entering. Well, actually, they might be. I thought picking Texas to go to the finals might be a stroke of genius. Not so much. Instead, 2100 to 1 is the average ratio that the concentration … Read more
Every state and the District of Columbia prohibits driving with an alcohol concentration of 0.08 or more though state laws vary regarding whether to establish a violation of the per se impaired driving law an alcohol concentration of .08 or more must exist at the time of driving (see, for example, Ala Code § 32-5A-191; … Read more
Among the most frequently asked motor vehicle law questions is whether a person convicted of impaired driving for an offense that occurred when the person was less than 21 years old is eligible for a limited driving privilege. The answer is no. The reason? No statute confers authority for the granting of a limited driving … Read more
In an implied consent case in which a defendant is asked to submit to a chemical analysis, the law enforcement officer and chemical analyst (who often are the same person) complete an affidavit averring that the implied consent testing procedures have been followed and stating the results of the test or that the person willfully … Read more
I wrote here about grossly aggravating factors (GAFs) and Level One and Two punishment in impaired driving cases sentenced under G.S. 20-179, leaving discussion of Level Three, Four, and Five punishment for another day. That day is upon us. If the judge or jury in the sentencing hearing determine that there are no GAFs, the … Read more
I’ve had several questions recently about how to handle cases in which the defendant was charged with DWI, failed to appear, remained absent for several years, then reappeared. Often, the arresting officer has retired, moved, or can’t remember the case well enough to testify. The defendant wants the case reinstated and wants to plead not … Read more