The court of appeals gave the green light last week for law enforcement officers to continue to testify as scientific experts in DWI cases involving retrograde extrapolation–notwithstanding the legislature’s amendment of Rule 702 to adopt the Daubert standard. The court held in State v. Turbyfill that a field technician for the Forensic Test for Alcohol Branch of DHHS (FTA), who was trained as a law enforcement officer and chemical analyst (which authorized him to conduct implied consent testing on breath testing instruments), was properly allowed to testify about a retrograde extrapolation calculation he performed using an FTA form. The technician’s inability to explain whether the rate he used to make the calculation was an “average,” a “mid-point,” or a “conservative” rate—he used all three terms to describe it—did not disqualify him as an expert since he “provided the trial court with a list of some thirty-nine articles . . . regarding blood alcohol research,” and “with North Carolina cases in which this Court upheld the use of retrograde extrapolation to establish blood alcohol content.”
DWI
Can 24/7 Sobriety Programs Fix the DWI Problem?
The Wall Street Journal published an opinion piece last Friday that, according to the headline, offered “A Simple Fix For Drunken Driving.” I was intrigued because, frankly, I didn’t think there was one. As it turns out, the headline over-promises. The author, Stanford University psychiatry professor Keith Humphreys, does not purport to have a solution that ends impaired driving once and for all. Instead, Dr. Humphreys reports on the “stunning” results of South Dakota’s “absurdly simple” 24/7 sobriety program for repeat DWI offenders.
Sentencing Whiteboard: Active Sentences for DWI
Do DWI sentences really get cut in half? Can DWI inmates be paroled? What happens when the minimum and maximum sentence for a DWI are the same? These questions and more are answered in today’s video post.
Hurry Up and Have that DWI Expunged
If you’ve been dragging your feet about having an old DWI expunged, you had better hurry up. A law enacted last week removes convictions for offenses involving impaired driving from the types of convictions that may be expunged. The change is effective for petitions filed or pending on or after December 1, 2015. So if you are eligible for such an expunction, your window of opportunity is closing fast. Read on to find about the other changes S.L. 2015-150 makes to the state’s DWI laws.
Proper Place of Confinement for a Probation Revocation
Last year I posted a chart summarizing the proper place of confinement (jail, prison, or Statewide Misdemeanant Confinement Program) for various types of imprisonment. The chart covers active sentences, split sentences, CRVs, quick dips, and incarceration for nonpayment of a fine. One thing it does not explicitly cover, though, is the proper place of confinement for a sentence activated upon revocation of probation. In response to a flurry of questions, I’ll take that issue up today.
The DWI Year in Review, Part II
Whether there was probable cause to arrest the driver is a hotly litigated issue in cases involving impaired driving. Unfortunately, there aren’t all that many appellate opinions addressing the hard calls in this area. Instead, many resemble State v. Tappe, 139 N.C. App. 33, 38 (2000), which found probable cause based on “defendant’s vehicle crossing the center line, defendant’s glassy, watery eyes, and the strong odor of alcohol on defendant’s breath.” It is difficult to imagine a court ruling otherwise. A few years ago, the court of appeals decided a tougher issue in Steinkrause v. Tatum, 201 N.C. App. 289 (2009), aff’d, 364 N.C. 419 (2010) (per curiam), concluding that the “fact and severity” of the defendant’s one-car accident coupled with a law enforcement officer’s observation that she smelled of alcohol provided probable cause to believe she was driving while impaired. This past year, the court issued two significant published opinions on probable cause for impaired driving—State v. Overocker, __ N.C. App. __, 762 S.E.2d 921 (Sept. 16, 2014), and State v. Townsend, __ N.C. App. __, 762 S.E.2d 898 (Sept. 16, 2014),—as well as opinions in State v. Veal, __ N.C. App. __, 760 S.E.2d 43 (July 1, 2014), and State v. Wainwright, __ N.C. App. __, 770 S.E.2d 99 (2015), better defining the threshold for reasonable suspicion of DWI.
The DWI Year in Review, Part I
Don’t call the School of Government next week. We’ll all be out. Next week is conference-time for many of the court officials we serve, and we will be traversing the state (driving the speed limit at all times, of course) to speak at various legal conferences. Case updates are a perennial staple of these conference agendas, so I’ve been reviewing last year’s cases with a particular focus on impaired driving. A number of opinions address issues that are frequently litigated in DWI cases, so I thought I’d share the highlights with you in a two-part post. This post reviews the past year’s jurisprudence on implied consent testing and compelled blood draws. Tomorrow’s post will review the recent case law on reasonable suspicion and probable cause for DWI.
When the Trial Court Has the Last Word
Litigants sometimes are surprised by circumstances in which a trial court’s ruling in a case is not capable of review on appeal. The court of appeals recognized one such situation earlier this week in State v. Kiselev, ___ N.C. App. ___ (May 19, 2015).
Can a Misdemeanor Conviction for Driving While Impaired Be Expunged?
I have been working on a theory of everything . . . for expunctions. It’s a small corner of the criminal justice universe, but a critical one for people with past convictions. The subject can be maddeningly complex, at times a seemingly impenetrable black hole. I have been trying to master the mysteries of our expunction statutes in updating my 2012 Guide to Relief from a Criminal Conviction (which you can find here, but beware of subsequent changes in the law).
Without further physics puns, here’s one of the questions I’ve looked at: Can a person expunge a misdemeanor conviction under G.S. 15A-145.5 for driving while impaired (DWI)? As the statute is currently worded, the answer is yes.
DWI Bills That Made the (First) Cut
Last week was crossover deadline at the General Assembly–a major event for lawmakers, legislative staffers, lobbyists and policy wonks. If you don’t fall into any of these categories, the deadline may not have greatly affected your work week. But because crossover marks (at least theoretically) the deadline by which non-revenue bills must pass one chamber of the legislature in order to be considered by the other during the remainder of the session, it is a good time to take stock of pending legislation. A complete listing of bills that met crossover is available here. Several of these bills would significantly amend laws related to impaired driving.