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?
DWI
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?
DWI Day at the Court of Appeals
Yesterday was opinion day at the court of appeals. And while it wasn’t officially designated as DWI opinion day, several of yesterday’s opinions resolve significant and recurring issues in DWI litigation. Today’s post will cover the highlights.
State v. Younts: Rule 702 Does Not Require Proof that HGN Testing is Reliable
Folks, we have an answer. The court of appeals held yesterday in State v. Younts, ___ N.C. App. ___ (2017), that a law enforcement officer trained to administer a Horizontal Gaze Nystagmus (HGN) test may properly testify about the results of a test he administered without any determination by the trial court that HGN testing is scientifically reliable.
What’s Hot in the Realm of DWI Litigation?
I was recently asked to talk to a group of attorneys about “hot topics” related to the criminal prosecution of impaired driving. Those of you who practice in the field are doubtless better equipped than I am to identify those topics. If pressed, I’d put these items on the list: (1) how the two-year statute of limitations applies to misdemeanors charged by magistrate’s order; (2) the admissibility of expert testimony by law enforcement officers, particularly regarding horizontal gaze nystagmus; (3) the admissibility of the results of warrantless blood tests; and (4) the appropriate remedy for statutory violations related to a defendant’s arrest and pre-trial detention. While the state supreme court has yet to issue its opinion regarding the statute of limitations issue in State v. Turner (discussed here) and neither the court of appeals nor the supreme court has opined about the admissibility of horizontal gaze nystagmus testimony following the 2011 amendment of Rule 702, recent court of appeals cases address both of the remaining issues.
How DWIs Are Actually Sentenced
This blog is full of posts about the laws governing sentencing for misdemeanor DWI. Until now, however, I haven’t written much about how DWIs are actually sentenced. That’s because I didn’t know. While the North Carolina Sentencing and Policy Advisory Commission (“Sentencing Commission”) annually publishes a statistical report on the sentencing of felonies and misdemeanors, that report doesn’t include information about DWI sentences, which are governed by G.S. 20-179 rather than the Structured Sentencing Act. Thanks to the Sentencing Commission’s recent focus on DWI sentencing, however, I now have statistics about how DWIs are sentenced in courtrooms across North Carolina. And I think you’ll be interested in what they show.
Harmless Error and Jury Unanimity in DWI Cases
Shortly after I published last week’s post on State v. Babich, an astute reader asked about the court’s harmless error analysis. How, he inquired, could the improper admission of expert testimony that the defendant had an alcohol concentration of 0.08 be harmless error? Did the jury’s verdict indicate that it found the defendant guilty only under the “under the influence” prong of impairment rather than under the “alcohol concentration of 0.08 or more” prong? To answer these questions, I had to dig into the record on appeal and provide a bit of background on the requirement for jury unanimity in DWI cases. I thought others might be interested in my response.
The Light Just Turned Yellow for Retrograde Extrapolation
I wrote in September 2015 that the court of appeals’ view of the admissibility of retrograde extrapolation under Daubert did not look much different from its take on the admissibility of that evidence under old Rule 702. As of yesterday, it does. The court of appeals in State v. Babich, __ N.C. App. __ (2017), changed the green light for retrograde extrapolation testimony in DWI cases to yellow.
May an Officer Search a Vehicle Incident to an Arrest for DWI?
In Arizona v. Gant, 556 U.S. 332 (2009), the Supreme Court of the United States ruled that an officer may “search a vehicle incident to a recent occupant’s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment” or it is “reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” Gant involved an arrest for driving with a suspended license, and the Court concluded that was “an offense for which police could not expect to find evidence in the passenger compartment” of the arrestee’s car.
But what about DWI? If an officer arrests a driver for DWI and secures the driver in the officer’s cruiser, may the officer search the driver’s vehicle because it is reasonable to believe that evidence of impaired driving will be found in the vehicle? Yes, at least on the facts before it, ruled the Court of Appeals of North Carolina in State v. Martinez, __ N.C. App. __, 795 S.E.2d 386 (2016). This post summarizes Martinez and considers searches incident to DWI arrests more broadly.