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.
DWI
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.
Last Means Last
A case involving charges of impaired driving is calendared on today’s district court docket. The defendant was charged more than two years ago; the case has been continued several times pursuant to motions made by the defendant and the State. When this case last appeared on the docket, the State moved for a continuance, and the defendant objected. The district court granted the State’s motion, but ordered that it be the last continuance for the State. Earlier this morning, the State again moved to continue the case. The district court denied the State’s motion, and directed the State to call the case or dismiss the charges. The State refused to take either action. What can the judge do?
Alleging Aggravating Factors in a DWI Prosecution
A defendant charged in district court with the misdemeanor crime of driving while impaired cannot ascertain from the charging document whether he is subject to sentencing at Level A1 (the most serious level) or Level 5 (the least serious). That’s because the aggravating factors that lead to elevated sentencing aren’t considered elements of the offense and thus are not required to be alleged in the charging instrument. Yet because those factors can increase the maximum punishment a defendant may receive, they must be proved beyond a reasonable doubt and, with the exception of prior convictions, be determined by a jury in superior court. And, for most charges of impaired driving prosecuted in superior court, the State must provide notice of its intent to seek aggravating factors. A case decided by the court of appeals last June, however, identifies an exception to this requirement for certain aggravating factors in driving while impaired prosecutions initiated in superior court.
Sentencing Whiteboard: Active Sentences for Aggravated Level One DWI
Today’s post is a return to the Sentencing Whiteboard, this time to explain active sentences for aggravated level one DWI. As Shea and I have discussed in earlier posts (here, here, and here, among others), they are different from other DWI sentences. No parole. No good time. Not cut in half. The video explains why, and describes how typical aggravated level one sentences are administered by the county jails through the Statewide Misdemeanant Confinement Program. As you’ll see, sentences for this most serious level of misdemeanor impaired driving are in many cases longer than a felony habitual DWI. I hope you’ll take a look.
State v. Lindsey: Another Close Call on Probable Cause for DWI
Do the following facts provide probable cause to arrest for impaired driving?
An officer pulls behind a vehicle at a stoplight around 3 a.m. and sees that its registration is expired. He activates his blue lights, and the defendant turns into a nearby parking lot. When the officer approaches the car, the defendant tells him that his license is revoked for DWI. The officer smells a medium odor of alcohol coming from the defendant’s breath and sees that the defendant’s eyes are red and glassy. The officer performs an HGN test, noting 5 of 6 indicators of impairment. The defendant tells the officer that he had three beers at 6 p.m. the previous evening.
The court of appeals answered this question earlier this week in State v. Lindsey, ___ N.C. App. ___ (2016). Its answer, and the outcome of the case, may surprise you.
HGN, the Rules of Evidence and Suppression Hearings
True or False: An officer does not have to be qualified as an expert to testify about horizontal gaze nystagmus in a hearing on a motion to suppress in an impaired driving case.
Breath Tests Incident to Arrest are Reasonable but Prosecution for Refusing a Blood Test Goes Too Far
The U.S. Supreme Court waded into the murky waters of implied consent law this term in Birchfield v. North Dakota. The opinion it issued last week clarified important aspects of the relationship between chemical testing for impairment and the Fourth Amendment, but failed to distill a coherent theory of implied consent. Here’s what we know after Birchfield:
- Warrantless breath testing of impaired driving suspects is permissible under the Fourth Amendment as a search incident to arrest. A person who refuses to submit to such testing may be subjected to sanctions ranging from license revocation to criminal prosecution.
- Warrantless blood testing of impaired driving suspects is not permissible under the Fourth Amendment as a search incident to arrest. Thus, a warrant or a suspect’s consent is required to conduct such testing. A person who refuses to submit to such testing may not be criminally prosecuted for that refusal.
Amendments to Notice and Demand Provisions for DWI Cases
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.