Two recent North Carolina Court of Appeals opinions help delineate when an officer has probable cause to believe a driver is driving while impaired. In each case, the court of appeals reversed the trial court’s determination that the officer lacked probable cause.
Tag Archives: impaired driving
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. Continue reading →
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. Continue reading →
The penultimate episode of the inaugural season of Beyond the Bench is now available! The first half of the episode was produced by Shea, and explores the penalties associated with impaired driving and their effectiveness at addressing the problem. The second half involves me interviewing Jamie about the concept of absconding from probation. We talk about the history of the term and discuss several recent appellate cases about what constitutes absconding. You can listen on the web here, or download the episode from the leading podcast store of your choice. Let us know what you think.
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.
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.
The Supreme Court just decided a case that significantly changes North Carolina law regarding whether a traffic stop can be made based on an anonymous 911 call alleging bad driving. The case is Navarette v. California, 572 U.S. __ (2014). The full opinion is here. This post summarizes the ruling and considers its implications for North Carolina.
Facts. A California woman called 911 and reported that a silver Ford pickup had run her off the road. She gave the vehicle’s plate number and stated that the vehicle was traveling south on a particular highway. Shortly thereafter, a highway patrol officer located the truck on the named highway and pulled it over. As the officer approached the truck, he smelled marijuana. He searched the truck, found 30 pounds of marijuana in the bed, and arrested the truck’s occupants.
Lower court proceedings. The occupants were charged with drug offenses. They moved to suppress the marijuana, contending that the initial stop was not supported by reasonable suspicion. It’s not completely clear whether the 911 caller gave her name, so the trial court treated the report as an anonymous tip, but ruled that it was reliable enough to provide reasonable suspicion. The defendants pled guilty and appealed the suppression ruling. California’s appellate courts affirmed. The Supreme Court agreed to review the case.
Majority opinion. The Court affirmed, dividing 5-4. Justice Thomas wrote the majority opinion. He stated that anonymous tips alone seldom provide reasonable suspicion, but that “under appropriate circumstances,” they may do so. Why did this tip pass muster? First, the Court concluded that the tip was reliable, for the following reasons:
- The caller provided her basis of knowledge, i.e., explained how she came to know about the dangerous driving: she “necessarily claimed eyewitness knowledge” when she stated that the truck ran her off the road.
- The call was contemporaneous with the dangerous driving, which made the report “especially reliable” and unlikely to be fabricated.
- The report came via the 911 system, which “has some features [like recording and caller ID] that allow for identifying and tracing callers, and thus provide some safeguards against making false reports with immunity.”
Having concluded that the tip was likely accurate, the Court then ruled that it provided reasonable suspicion that the driver of the pickup was impaired. Justice Thomas wrote that running another vehicle off the road “suggests lanepositioning problems, decreased vigilance, impaired judgment, or some combination of those recognized drunk driving cues.”
Dissent. Justice Scalia wrote the dissent, characterizing the majority opinion as a “freedom-destroying cocktail” of errors. He first argued that the tip was not reliable, and could have been fabricated or embellished, given that it was anonymous and that the caller may well have been unaware of the call-tracing features of the 911 system. Then he contended that even if the tip was reliable, it couldn’t support reasonable suspicion because there are many explanations other than impaired driving for one vehicle running another off the road: “The truck might have swerved to avoid an animal, a pothole, or a jaywalking pedestrian.” Further, he notes that the officers “followed the truck for five minutes” before stopping it and saw no signs of impairment. In his view, this “affirmatively undermined” whatever reasonable suspicion the tip offered.
Comparison to prior law. Our appellate courts have been quite skeptical of anonymous tips. For example, in the almost indistinguishable case of State v. Blankenship, __ N.C. App. __, 748 S.E.2d 616 (2013), a taxi driver placed an anonymous call to 911, reporting that a specific red Ford Mustang was “driving erratically [and] running over traffic cones.” The court of appeals found no reasonable suspicion for the subsequent stop of the Mustang, because the tip was anonymous, and there was no corroboration beyond the fact that the Mustang was, in fact, traveling in the direction reported by the caller. See also State v. Peele, 196 N.C. App. 668 (2009) (anonymous tip concerning possible impaired driving did not provide reasonable suspicion, even with officer’s observation of one incident of weaving). These rulings have been heavily influenced by Florida v. J.L., 529 U.S. 266 (2000) (ruling that an anonymous tip stating that a young black man in a plaid shirt at a specific bus stop was carrying a gun did not provide reasonable suspicion for a stop and frisk as it contained no predictive information). Navarette does not overrule J.L., but it represents a break from the approach our courts have taken.
Reactions and comments. It seems to me that the majority has the upper hand as to the probable accuracy of the tip. Sure, it’s possible that a 911 call like the one in this case could be a fabrication by a malevolent caller, designed to inconvenience an innocent motorist by having them stopped by police. But it’s likely that this sort of report will be made in good faith. As to whether such a tip provides reasonable suspicion of impaired driving, however, the dissent makes a powerful case, especially given the five-minute observation of faultless driving.
Whether or not the decision is right, the majority opinion leaves quite a bit to be desired, because it provides so little guidance in sifting sufficiently reliable tips from inadequate ones. How indispensable is the contemporaneity of the report? How contemporaneous is contemporaneous? How significant is the fact that the call was placed to 911? What if it was placed to a non-emergency number that also was subject to caller ID? What if the call concerned a completed offense instead of an ongoing one? (The Court expressly dodges the last question in footnote 2.) Rather than clarifying the law, the Court’s opinion muddies it, making it more difficult for officers and courts to apply.
Professor Orin Kerr has a more sanguine view of the opinion here at the Volokh Conspiracy.
When a defendant move to dismiss DWI charges based on a violation of his pre-trial release rights, the State’s first response is predictable: Subpoena the magistrate who presided over the defendant’s initial appearance. And in case after case, our appellate courts have considered testimony from magistrates in determining whether a defendant’s rights to pretrial release were violated. See, e.g., State v. Labinski, 188 N.C. App. 120 (2008) (finding statutory violation based in part on magistrate’s testimony that he imposed an impaired driving hold because he thought anyone charged with DWI with an alcohol concentration of at least 0.08 would possibly hurt himself or someone else), State v. Bumgarner, 97 N.C. App. 567 (1990) (finding that impaired driving hold was warranted based on magistrate’s consideration of trooper’s testimony, the magistrate’s personal observations, and the results of the sobriety test, which revealed a 0.14 alcohol concentration). Recently, however, the State’s predictable reaction has met with some unexpected resistance: a motion to quash filed by the state attorney general.
Judicial Privilege. Though I haven’t seen any of these motions, my understanding is that they rest upon the long-established rule that that a judge may not be compelled to testify about her mental process in reaching a judicial decision. The United States Supreme Court recognized that principle more than a century ago in Fayerweather v. Ritch, 195 U.S. 276 (1904), ruling that it was error to admit testimony from a trial judge regarding his mental processes in reaching a judgment in an earlier case. The Court reasoned that judgments were solemn records that parties had a right to rely upon and “ought never to be overthrown or limited by the oral testimony of a judge or juror of what he had in mind at the time of the decision.” Id. at 306-07. The principle has been applied in similar contexts by several lower courts. See, e.g., Perkins v. LeCureux, 58 F.3d 214, 220-21 (6th Cir. 1995) (holding in habeas case that the trial court committed plain error by considering and relying upon the testimony of sentencing judge as to his thought processes in sentencing the petitioner ten years earlier); Proffitt v. Wainwright, 685 F.2d 1227, 1255 (11th Cir. 1982) (“[P]ost-decision statements by a judge or juror about his mental processes in reaching decision may not be used as evidence in a subsequent challenge to the decision.”)
In addition to the Fayerweather final judgment justification, courts have justified the prohibition against compelled judicial testimony as necessary to protect the integrity of the legal system. See, e.g., United States v. Roebuck, 271 F. Supp. 2d 712, 722 (D.V.I. 2003) (ruling that judge could not be compelled to answer questions proposed by defendant that related to the judge’s denial of a motion for his disqualification); Terrazas v. Slagle, 142 F.R.D. 136, 139 (W.D. Texas 1992) (granting motion to quash subpoenas for oral depositions served on judicial law clerks and commenting that “public inquiries by the litigants as to the internal operations and communications of the Court will, not may, destroy the integrity of our present legal system.”).
Limitations. Judicial privilege, even where recognized, is limited. Judicial officers may be compelled to testify regarding facts “that do not probe into or compromise the mental processes employed in formulating the judgment in question.” See Standard Packaging Corp. v. Curwood, Inc., 365 F. Supp. 134, 135 (N.D. Ill. 1973).
Scope. In addition to the limitation mentioned above, the application of the privilege to contexts in which there is no recorded judgment is unclear. For example, the court in State ex rel. Childs v. Hayward, 248 A.2d 88 (N.H. 1968), held that the privilege did not prohibit a defendant from subpoenaing a justice of the peace to testify regarding what additional evidence beyond that set forth in the written application for a search warrant was presented to him. While the court agreed “that no magistrate should be subjected to interrogation with respect to his mental processes or the reasons for his decision, nor should he be subjected to interrogation with respect to the evidence presented before him when there is an existing record thereof,” it explained that judicial officers who do not preside over courts of record, are not “exempt from giving testimony as to what evidence was presented before them, when no record of such evidence was made.” Id. at 90.
North Carolina’s view. North Carolina’s courts have said relatively little about judicial privilege. The state supreme court in State v. Simpson, 314 N.C. 359 (1985), considered the defendant’s claim on appeal that the trial court erred by refusing to allow him to call the district court judge who presided over his initial appearance as a witness. The defendant sought to proffer this testimony in support of his insanity defense. Noting concerns related to judicial privilege, Simpson cited cases from other jurisdictions holding that a judge should not be called as a witness if the litigant’s rights can be otherwise protected. Applying this standard, Simpson concluded that the trial court did not err in refusing to permit the defendant to call the district court judge as a witness as the defendant failed to show that the judge was the only person who could testify about the defendant’s behavior at the initial appearance. The court explained that “[t]here were undoubtedly other persons present in the courtroom . . . who may have noticed his behavior, including the deputy clerk, the bailiffs, and other attorneys not involved in the case.” Id. at 373.
What’s the answer? It is not clear whether magistrates can be compelled to testify in these cases. The testimony sought from magistrates frequently crosses the barrier between fact testimony and testimony about the magistrate’s mental processes. Given that magistrates are judicial officials, perhaps this line of questioning is barred by judicial privilege. On the other hand, there is seldom much of a record about what transpired at the initial appearance. If the magistrate imposed an impaired driving hold, he should have completed a form AOC-CR-270 and have made findings, but the robustness of those findings varies. Moreover, in most circumstances, there is no source for the information other than the magistrate as the law enforcement officer who accompanied the defendant to the initial appearance may not have noted or may not recall the details of what transpired.
You tell me. What’s going on in your district? Have you seen motions to quash? How are they resolved?
Tucked into the 2013 North Carolina budget bill is a provision imposing new court costs for expert witnesses who testify about chemical or forensic analyses at trial. Specifically, the new law (sec. 18B.19 of the budget bill) provides that upon conviction the trial judge must require a convicted defendant to pay $600 in costs if a state or local government crime lab employee testified at trial as an expert witness about a specified chemical or forensic analysis. The costs support the state crime lab or go to the local government unit that operates the lab to be used for law enforcement. There’s really no question about why this provision is in the budget bill. In the wake of Melendez-Diaz, crime labs have been stretched to produce forensic analysts in court while keeping up with the testing work. This provision is a legislative response to that pressure. But is it constitutional?
Citing United States v. Jackson, 390 U.S. 570 (1968), defense lawyers may argue that the statute impermissibly chills a defendant’s confrontation rights. See generally Richard Friedman, Potential Responses to the Melendez-Diaz Line of Cases at 10 (suggesting that cost recoupment for laboratory analysts raises constitutional issues). In Jackson, the Court held unconstitutional a provision of the Federal Kidnapping Act that authorized the death penalty if a jury recommended it, but contained no procedure for imposing death on a defendant who waived the right to a jury trial or pleaded guilty. The Supreme Court found that the death penalty provision impermissibly chilled the defendant’s Fifth Amendment right not to plead guilty and Sixth Amendment right to demand a jury trial. It stated: If a “provision ha[s] no other purpose or effect than to chill the assertion of constitutional rights by penalizing those who choose to exercise them, then it would be patently unconstitutional.” 390 U.S. at 581. The Court continued, explaining that if, however, the statute has a legitimate government objective, that objective cannot be pursued “by means that needlessly chill the exercise of basic constitutional rights.” Id at 582. In the latter context, the question is whether the chilling effect is “unnecessary and therefore excessive.” Id. The Court found that the provision at issue was unconstitutional because although the government had a legitimate purpose—mitigating the severity of capital punishment—that goal could have been achieved without penalizing defendants who plead not guilty and demand a jury trial.
In later decisions, the Court has declined to adopt a broad reading of Jackson. In Chaffin v. Stynchcombe, 412 U.S. 17 (1973), for example, it noted that “Jackson did not hold . . . that the Constitution forbids every government-imposed choice in the criminal process that has the effect of discouraging the exercise of constitutional rights.” Id. at 30-31 (rejecting a claim by a defendant who received a harsher sentence on retrial than in his original trial; the defendant’s rights were not impermissibly chilled because the threat of a harsher sentence was speculative and simply another of the difficult choices which were an “inevitable attribute” of our judicial system). And in Fuller v. Oregon, 417 U.S. 40 (1974), the Court rejected a defendant’s argument that Jackson mandated invalidation of an Oregon recoupment statute requiring indigent defendants who subsequently acquired financial resources to repay their legal defense costs. The defendant had argued that knowing he may later be required to repay his legal costs could have impelled him to decline the services of an appointed attorney, and thus chilled his constitutional right to counsel. Rejecting this argument, the Court reasoned that since the statute was tailored to impose an obligation on only those who were able to repay costs, assessing costs on these defendants was not unnecessary to achieve its governmental purposes nor was it likely to substantially chill a defendant’s rights. Other decisions have declined to extend Jackson. See, e.g., Corbitt v. New Jersey, 439 U.S. 212, 218 (1978) (“cases . . . since Jackson have clearly established that not every burden on the exercise of a constitutional right, and not every pressure or encouragement to waive such a right, is invalid”).
My research hasn’t turned up any case law addressing the Jackson argument in relation to a statute similar to the new NC provision. However, many jurisdictions have general cost recoupment statutes. These statutes provide for recoupment of the “costs of prosecution” or “reasonable costs of prosecution,” and have been interpreted to allow for, among other things, the cost of testimony by government witnesses. See, e.g., People v. Palomo, 272 P.3d 1106, 1111 (Colo. Ct. App. 2011) (costs awarded for state technicians who testified as experts in ballistics, gunshot residue, and fingerprints). Jackson “chilling” arguments have not succeeded as to these statutes. United States v. Palmer, 809 F.2d 1504, 1506 (11th Cir. 1987); United States v. Wyman, 724 F.2d 684, 688 (8th Cir. 1984); United States v. Chavez, 627 F.2d 953, 955 (9th Cir. 1980); United States v. Fowler, 794 F.2d 1446, 1449 (9th Cir. 1986); United States v. Escobar, 1987 WL 31141, *5-6 (S.D. Cal. Sept. 30, 1987) (unpublished); Com. v. Coder, 415 A.2d 406, 408 (Pa. 1980); People v. Estate of Scott, 363 N.E.2d 823, 824 (Ill. 1977); King v. State, 780 P.2d 943, 958 (Wyo. 1989); State v. Marinucci, 321 N.W.2d 462, 467 (N.D. 1982). But see United States v. Glover, 588 F.2d 876, 878-79 (2d Cir. 1978) (per curiam) (although upholding a discretionary “costs of prosecution” provision in 28 U.S.C. § 1918(b), the court suggested that a mandatory provision might be unconstitutional in that it might chill constitutional rights).
However, the new NC law isn’t a general cost recoupment statute. Central to the courts’ analyses in the cases rejecting Jackson chilling arguments as to general cost recoupment statutes is their legitimate purpose: recovering a portion of prosecution expenses. Because the NC statute applies only to the prosecution’s forensic experts, defense lawyers might argue that the statute has no legitimate purpose other than to chill the assertion of newly recognized confrontation rights. That, of course, is categorically unconstitutional under Jackson. Assuming that it can be credibly argued that the statute has another valid objective (such as cost recoupment, an assertion that finds support in the statute’s provision regarding allocation of funds), the analysis shifts to whether the undeniable chilling effect on confrontation rights is—in the words of Jackson—“unnecessary.” Defense lawyers may argue that as in Jackson, the legitimate objective of supporting the crime labs can be achieved in ways that do not penalize defendants for exercising their constitutional confrontation rights. The State might respond by arguing, among other things, that the $600 cost is too low to rise to the level of a constitutional impediment and that more neutral general cost recoupment statutes have been held constitutional even though they impose a greater burden on the defendant’s rights.
Those are my musings for now. I’m still thinking about the issue and I’d appreciate any wisdom you have.
What is the basis for the indefinite license revocation reflected in the driving record entry below?
A. A revocation under G.S. 20-24.1 for failure to appear for a motor vehicle offense.
B. A revocation under G.S. 20-24.1 for failure to pay a fine, penalty or court costs ordered by the court upon conviction of a motor vehicle offense.
C. A one-year revocation under G.S. 20-17(a)(2) for conviction of DWI that is extended by G.S. 20-17.6(b).
D. It is not possible, without additional information, to determine the reason for the revocation.
This entry reflects a driver’s license revocation entered pursuant to G.S. 20-17(a)(2) for conviction of impaired driving. The person committed the offense on June 25, 2010 and was convicted on October 25, 2010. Her license was revoked for one year. G.S. 20-19 (c1). (Had the record been printed before October 25, 2011, the “INDEF” entry would have contained the date 10-25-11.) The asterisk beside the conviction indicates that DMV has not yet received the certificate of completion reflecting that the person completed his or her substance abuse assessment or treatment. Thus, when the one-year revocation period expired, the revocation did not end, as it otherwise would have, but instead continued pursuant to the provisions of G.S. 20-17.6(b). So, answer C is correct.
How can I be sure?
There are several ways in which a person’s license may be indefinitely suspended in connection with impaired driving charges. A person may have his license revoked for a civil license revocation under G.S. 20-16.5. Unlike the driving record entry above, these revocations contain the entry “SUSP: 30 DAY CIVIL REVOCATION (SUSPENSION).” A person’s driver’s license may be revoked for her failure to appear or failure to pay a fine, penalty or court costs. G.S. 20-24.1. Entries for those revocations state “SUSP: FAILURE TO APPEAR,” or “SUSP: FAILURE TO PAY FINE.” The entry above, in contrast, reflects that the revocation is for conviction of impaired driving under G.S. 20-138.1.
Driver’s license revocations for convictions of impaired driving under G.S. 20-138.1 never begin as indefinite revocations. Instead they are for a term of years or are permanent. The revocation period is four years if the person is convicted of impaired driving and has a previous conviction for an offense involving impaired driving that occurred within three years before the offense for which the person’s license is being revoked. G.S. 20-19(d). Thus, if the person whose driving record is depicted above previously had been convicted of impaired driving for an offense that occurred on June 26, 2007, the revocation period would have been four years.
The revocation period is permanent for a person convicted of impaired driving who previously has been convicted of two or more offenses involving impaired driving, with the most recent of those offenses occurring within five years before the date of the offense for which the person’s license is being revoked. G.S. 20-19(e). No conviction more than ten years old may be considered (unless the offense occurred in a commercial motor vehicle or was committed by the holder of a commercial driver’s license). G.S. 20-36. All other revocations for conviction of impaired driving under G.S. 20-138.1 are for one year. G.S. 20-19(c1). The “1” beside “OFFENSE OF DRIVING WHILE IMPAIRED” indicates that DMV considers this a first conviction for revocation purposes.
In order for a person whose license is revoked for impaired driving to have his license restored after the period of revocation ends, DMV must receive a certificate of completion. G.S. 20-17.6(b). To obtain a certificate of completion, the person must have a substance abuse assessment and, depending on the results of the assessment, complete either an alcohol or drug education school (ADET) or a substance abuse treatment program. G.S. 20-17.6(c). Moreover, the revocation period for a person whose license is revoked for a conviction of driving while impaired in violation of G.S. 20-138.1 is extended until DMV receives the certificate of completion. G.S. 20-17.6(b).
A person convicted of driving while impaired based on an offense that occurred while his or her license was revoked for an impaired driving revocation may have her sentence enhanced by the grossly aggravating factor in G.S. 20-179(c)(2). This factor applies if, in committing the instant impaired driving offense, the person drove a motor vehicle on a highway while her license was revoked and the revocation was an impaired driving revocation as that term is defined in G.S. 20-28.2(a). Revocations under G.S. 20-17(a)(2) are included among impaired driving revocations. That same rule applies when those revocations are extended pursuant to G.S. 20-17.6. See State v. Coffey, 189 N.C. App. 382, 386 (2008) (concluding in an impaired driving case in which the defendant’s earlier conviction-based impaired driving revocation was extended under G.S. 20-17.6 that “there was overwhelming and uncontroverted evidence that at the time of the offense, defendant was driving while his license was revoked and that such revocation was an impaired driving revocation”). So, if the person whose driving record is set forth above drives a motor vehicle while impaired on a highway on August 11, 2013 and is convicted under G.S. 20-138.1 she will be sentenced, at a minimum, to Level One punishment. Two grossly aggravating factors apply. She has a prior conviction for an offense involving impaired driving within seven years (G.S. 20-179(c)(1)), and she drove a motor vehicle while impaired on a highway while subject to an impaired driving revocation (G.S. 20-179(c)(2)).