DWI

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State v. Lindsey:  Another Close Call on Probable Cause for DWI

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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.

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Breath Tests Incident to Arrest are Reasonable but Prosecution for Refusing a Blood Test Goes Too Far

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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.

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Warrant Required for Testing of Unconscious DWI Suspect

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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.

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Storycorps: DWI Edition

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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.

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State v. Miller Confirms that the DWI Motions Statutes are a Hot Mess

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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. 

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Do DWI Suspects Have a Right to the Least Intrusive Chemical Test?

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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?

 

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State v. Osteen:  Court of Appeals Approves Admission of Lay and Expert Opinion Testimony Regarding Drug Impairment

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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.

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Advising a Defendant Who Does Not Speak English of His Implied Consent Rights

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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?

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