Jurisprudence over whether officers may testify about defendants’ horizontal gaze nystagmus (HGN) in impaired driving trials has failed to follow a smooth path. In fact, one could fairly note that more than the defendants’ eyes have jumped all over the place. First, our state supreme court said that testimony from a police officer regarding the results of an HGN test performed by the defendant was inadmissible without the evidence establishing that the HGN test was scientifically reliable. State v. Helms, 348 N.C. 578 (1998). The legislature responded by amending Rule 702 in a manner that, according to the court of appeals, “obviat[ed] the need for the state to prove that the HGN testing method is sufficiently reliable” and permitted law enforcement officers trained in administering the HGN test to testify about the defendant’s performance. State v. Smart, 195 N.C. App. 752 (2009). But forget admissibility for a moment. Does HGN evidence prove anything much anyway? A recent unpublished case from the court of appeals indicates that it does not.
DWI
Does a DWI Conviction Bar a Person from Possessing a Gun?
The maximum punishment for driving while impaired in violation of G.S. 20-138.1 increased from two to three years in 2011. As a result, defendants convicted of misdemeanor DWI and sentenced at the most serious level—Aggravated Level One—are prohibited from possessing firearms by federal law. That’s because federal law prohibits firearm possession by a person who has been convicted of a crime punishable by imprisonment for a term exceeding one year, though state law misdemeanors that are punishable by a term of imprisonment of two years or less are excluded from this category of disqualifying convictions. Because North Carolina law sets out a single offense of driving while impaired, which may be punished at varying levels, rather than six separate offenses, there is a question as to whether any defendant convicted of misdemeanor DWI on or after December 1, 2011 may lawfully possess a firearm, regardless of the level at which the defendant was actually punished.
Georgia Supreme Court Holds that Implied Consent Is Not Actual Consent
Prosecuting impaired drivers in Georgia just got a little bit harder. The Georgia Supreme Court held last week in Williams v. State, __ S.E.2d __ (Ga. 2015) that the mere fact that a DUI suspect agreed to allow officers to withdraw his blood–after being told that Georgia law required him to submit to testing and that his driver’s license would be revoked for a year if he refused–did not establish the sort of voluntary consent necessary to excuse the Fourth Amendment’s warrant requirement. Is this a watershed moment in implied consent law?
Two-Timing on the Weekends is Allowed . . . and Other Rules for DWI Sentences
Spring is upon us, and today’s post addresses the top five DWI sentencing questions of the season.
Not So Fast: Dismissal of DWI Charges for Failure to Schedule Trial in 30 Days
Defendants who drive while impaired while their licenses are revoked for another impaired driving offense or who drive while impaired without a license and without car insurance risk more than criminal prosecution. The vehicles they drive must be seized, and, if they are convicted, will be ordered forfeited. To speed up the forfeiture process, DWI cases involving vehicle forfeitures must be scheduled within 30 days of the offense. But they rarely, if ever, are. Are defendants entitled to relief when the statutory scheduling directive is ignored? And can that relief come in the form of the dismissal of criminal charges?
Beating the Rap . . . But Taking the Revocation
Myra Lynne Combs beat her DWI charges in court. The trial court held that the officer who stopped her didn’t have a lawful reason to do so. So the trial court suppressed all the evidence resulting from the stop, and the State dismissed the charges. But Combs’ license was revoked for a year anyway based on her refusal to submit to a breath test after she was arrested. Combs didn’t think that was right, so she took her case to the state court of appeals.
What to Do with the Impaired Drivers We’ve Stopped—And the Ones We Haven’t
DWI arrests in North Carolina’s capital city are on the rise. The Wake County district attorney’s office expects to prosecute around 7,000 DWI cases this fiscal year—2,000 more than it handled in 2013-14. The increased arrests result from beefed up patrol activity made possible by federal grants. And there is some speculation that the decline in fatal alcohol-related accidents in Raleigh from the previous year may be related to the additional arrests. Yet people continue to drive while impaired in Raleigh and elsewhere in North Carolina, sometimes with tragic consequences. And every DWI charge adds a court case to an already crowded district court docket. I wonder: Can we prosecute away the risks posed by impaired drivers?
Failing to advise a defendant of his implied consent rights requires suppression of the test results . . . except when it doesn’t
In opinions spanning four decades, North Carolina’s appellate courts have suppressed chemical analysis results in impaired driving cases based on statutory violations related to their administration. When the violation consists of the State’s failure to advise a defendant of her implied consent rights, the appellate courts’ jurisprudence has been straightforward and consistent: The results of an implied consent test carried out without the defendant having first been advised of her implied consent rights are inadmissible. Indeed, the court of appeals reaffirmed that principle last June in State v. Williams, __ N.C. App. ___, 759 S.E.2d 350 (2014), holding that the State’s failure to re-advise the defendant of his implied consent rights before conducting a blood test under the implied consent statutes required suppression of the test results. A court of appeals opinion issued in the waning hours of 2014 indicates, however, that the rule is subject to at least one exception.
DWLR + DWI Does Not (Automatically) Equal a Grossly Aggravating Factor
Author’s note: The law was amended in 2015 to alter this analysis. The amendments are discussed here.
Grossly aggravating factors matter in DWI sentencing. And there’s one factor that seems to be confusing folks, particularly when it comes to ignition interlock violations. Here’s hoping this post clears it up.
Go Ahead, Test Me
Most people stopped on suspicion of impaired driving would rather avoid the trip to the police station. Some suspects attempt to dispel officers’ suspicions by answering questions about whether they have been drinking and how much they’ve had to drink. Others perform field sobriety tests. A few cut right to the chase, demanding that officers transport them immediately to the station for breath testing. That way, the person who is not impaired by alcohol can resolve the encounter without the indignity–and the record–that accompanies arrest.