The court of appeals decided State v. Shelton, ___ N.C. App. ___ (2019) yesterday, determining that the evidence of the defendant’s impairment was sufficient when he took impairing drugs hours before crashing his vehicle into a pedestrian after his brakes failed. Two aspects of the case are of particular interest: (1) the court’s evaluation of the sufficiency of the evidence in a case where no one opined that the defendant was impaired; and (2) how the State obtained evidence that drugs remained in the defendant’s system in the first place.
DWI
U.S. Supreme Court Grants Review on Issue of Implied Consent
The United States Supreme Court granted certiorari a few weeks ago to consider whether a state statute authorizing the withdrawal of blood from an unconscious driver suspected of impaired driving provides an exception to the Fourth Amendment warrant requirement. The case, Mitchell v. Wisconsin, arose in Wisconsin, but the issue may sound familiar to practitioners in North Carolina. Our state supreme court held in State v. Romano, 369 N.C. 678 (2017) (discussed here) that the warrantless withdrawal of blood from an unconscious DWI suspect pursuant to state statute when there was no exigency violated the Fourth Amendment. The Supreme Court of Wisconsin reached a different conclusion in Mitchell. The case provides the United States Supreme Court with an opportunity to tie up the ends it left loose in Birchfield v. North Dakota, ___ U.S. ___, 136 S. Ct. 2160 (2016) by clarifying how implied consent laws authorizing blood draws without a suspect’s consent do or do not comport with the Fourth Amendment.
What Happens When the Jury Is Instructed on the Wrong Theory?
Suppose the trial court, over the defendant’s objection, instructs the jury on a theory of a crime that is not supported by the evidence. Is the defendant entitled to automatic reversal on appeal? Or, alternatively, must the appellate court evaluate whether the erroneous instruction prejudiced the defendant? The North Carolina Supreme Court answered these questions in State v. Malachi, ___ N.C. ___ (2018), published last Friday, and applied its answer in State v. Fowler, ___ N.C. ___ (2018), decided the same day.
The License Revocation that Immediately Follows Arrest for DWI
I spent much of the afternoon teaching magistrates, and one of the topics we covered was the immediate license revocation that often is ordered upon a person’s arrest for impaired driving.
Got Probable Cause for Impaired Driving?
Two recent North Carolina Court of Appeals opinions help delineate when an officer has probable cause to believe a driver is driving while impaired. In each case, the court of appeals reversed the trial court’s determination that the officer lacked probable cause.
State v. Eldred: Court of Appeals Evaluates Sufficiency of Circumstantial Evidence of DWI
Consider whether the following facts are sufficient to support a conviction for DWI:
The scene. Law enforcement officers in Avery County respond to a reported accident on the highway leading to Grandfather Mountain around 8:30 p.m. They find a Jeep Cherokee on the side of the highway, with a damaged side panel. Tire impressions indicate that the vehicle traveled about 100 feet after leaving the roadway. A large rock embankment along the roadway is scuffed. No one is in the car, which is registered to Paul Eldred.
The defendant. A law enforcement officer finds Eldred walking along the side of the highway two or three miles north of the accident. Eldred has a mark on his forehead, is twitching, and is unsteady on his feet. The officer asks Eldred why he is walking on the highway. Eldred responds: “I don’t know, I’m too smoked up on meth.” The officer calls for medical help, and Eldred is taken to the hospital.
The interview. Another officer questions Eldred at the hospital around 10 p.m. Eldred explains that he was driving his car when it ran out of gas. He then says “‘he was hurt bad and was involved in a wreck a couple of hours ago.’” Eldred tells the officer that he had not been drinking alcohol. The officer asks whether Eldred has taken any medications, and Eldred says he is “on meth.” During the interview, Eldred is twitching, appears dazed and has difficulty answering questions. He does not know the date, the day of the week, or the time.
Rules for Breath Tests in DWI Cases
The easiest way for the State to prove impairment in a prosecution for impaired driving is by introducing the results of a test of the defendant’s breath. Such test results are admissible without the foundation that would otherwise be required for this kind of scientific evidence so long as the testing was carried out in accordance with statutory and administrative rules governing implied consent testing. G.S. 20-139.1(b). Because the rule allowing breath test results to be introduced into evidence is relied upon so often, I thought it might be helpful to review the admissibility rule and the requirements for such tests.
Is Necessity a Defense to DWI?
After a bad break-up, Dan drives to a local bar, where he begins drinking. He hasn’t planned in advance how he is going to get home. If he drinks too much to drive, he thinks, he will summon a ride on his smart phone. Dan is on his seventh drink in two hours when a man storms through the front door of the bar, waving an assault rifle and threatening to shoot up the place. Dan bolts for the nearest exit, jumps in his car, and drives away. Less than a half-mile away from the bar, Dan runs through a red light and is stopped by a law enforcement officer. Dan is subsequently charged with driving while impaired. At trial, he asks the judge to instruct the jury on the defense of necessity. Is Dan entitled to that instruction?
A Look Around the Country at the Admissibility of Evidence in Drugged Driving Cases
Last week I wrote about studies examining the prevalence of driving with drugs in one’s system. Research has shown that an increasing number of drivers have detectable drugs in their symptoms. What we don’t yet know is how many of those drivers are impaired by drugs and whether the incidence of drug-impaired driving is increasing.
We do know, of course, that drug-impaired driving is dangerous. Policy-makers in North Carolina and elsewhere have attempted to combat the problem by enacting zero-drug-tolerance laws and provisions that prohibit driving with a threshold of a drug or its metabolites in one’s body. And law enforcement officers across the country have created detection protocols that are geared specifically toward the drug-impaired driver rather than a driver impaired by alcohol.
Notwithstanding these measures, drug-impaired driving continues to be prosecuted in North Carolina and other states under statutory schemes and law enforcement protocol that were primarily written and developed to deter, detect and punish alcohol-impaired driving.
Courts across the country are increasingly being required to consider how those schemes and that protocol apply to drug-impaired driving prosecutions. This post will summarize recent court rulings on the admissibility in drugged driving prosecutions of (1) evidence regarding a defendant’s performance on field sobriety tests, (2) testimony about the effects of certain drugs, and (3) lay opinion testimony about the person’s impairment. It will also review recent opinions regarding the quantum of proof necessary to establish drug-impaired driving. It will conclude with a case that demonstrates why drugged driving is a matter of serious concern.
What We Know (And What We Don’t) About Drug-Impaired Driving
Ask someone to identify an emerging area of interest related to motor vehicle law and chances are the person will mention drugged driving. Indeed, the U.S. Office of National Drug Control Policy in 2010 set a goal of reducing the prevalence of drug-impaired driving by 10 percent by 2015. People who work in the field frequently cite anecdotal evidence supporting the notion that driving while impaired by drugs is becoming more common. Are they right? Are more people these days driving while impaired by drugs?