North Carolina Criminal Law NC Criminal Law

The decades-old state supreme court decision in State v. Knoll, 322 N.C. 535 (1988), dismissing charges against three impaired driving defendants, is confusing.  For starters, the Knoll court’s decision hinged in part on its determination that the defendants were unlawfully detained.  Yet the court never even mentioned G.S. 15A-534.2—the statute authorizing the detention of impaired drivers or explained why its provisions did not apply. Second, the court held that a defendant charged with a per se violation of the impaired driving laws had to establish prejudice to be entitled to relief, but the court then failed to apply a higher standard than it had applied under an earlier presumptive prejudice test.

This lack of clarity is problematic. Because Knoll granted such drastic relief—dismissal—for defendants charged with a very common crime—driving while impaired—many motions are filed seeking relief pursuant to its holding. Several years ago, the legislature reacted to defendants’ success in procuring such relief by enacting additional procedures that apply in initial appearances for DWIs. See G.S. 20-38.4. Now a magistrate who finds by clear and convincing evidence that a defendant’s impairment presents a danger to persons or property if he is released must record those findings on AOC-CR-270.  Magistrates also must inform defendants who are jailed for implied consent offenses of the procedures by which they may have others appear at the jail to observe them or to administer an additional chemical analysis.  G.S. 20-38.4(a)(4)b. Finally, magistrates must require people detained for implied consent offenses to list the names and phone numbers of people they wish to contact from jail.  G.S. 20-38.4(a)(4)b.

Magistrates work hard to follow the appropriate procedures in these cases.  And I spend a lot of time talking to them about how best to do that.

What I wish for.  I’m always excited when our appellate courts consider motions under Knoll.  Judicial officials would benefit from a more exhaustive list of the types of errors or procedural irregularities that warrant such relief as well as a clearer definition of what constitutes prejudice.

State v. Kostick.  Thus, I eagerly read this week’s opinion in State v. Kostick, ___ N.C. App. ___ (March 18, 2014), which held that the trial court did not err in denying the defendant’s motion to dismiss pursuant to Knoll.

The defendant in Kostick, a non-Indian, was stopped at a checkpoint within the Qualla boundary of the reservation of the Eastern Band of Cherokee Indians, and subsequently was arrested for DWI.  He submitted to a breath test that resulted in an alcohol concentration of 0.15.  About a half-hour later, at 1:05 a.m., the defendant appeared before a magistrate for an initial appearance. The magistrate imposed a secured bond of $500 as a condition of release. The magistrate imposed this condition because (1) he deemed the defendant “pretty drunk” based on the results of the breath test, (2) the defendant was a South Carolina resident, and (3) the defendant had a gun in his car.  (Charges against the defendant for carrying a concealed weapon were dismissed at trial after the defendant produced a South Carolina gun permit.) The defendant told the magistrate he did not wish to contact anyone, and was confined in the county jail.  While in jail, he was allowed to use the telephone, and he phoned a bail bondsperson. The defendant posted bond and was released at 4:50 a.m.

The defendant moved to dismiss the charges pursuant to Knoll. The trial court denied the motion, determining that the “‘magistrate was under an obligation not to turn [the defendant] out in the public in that kind of condition,’” that the magistrate did not “‘deny him any rights by setting a bond,’” and that, in any event, the defendant was not prejudiced by the nearly four-hour detention. The trial court applied retrograde extrapolation to determine whether the defendant was prejudiced, and concluded that he was not since, had he sought an independent chemical analysis at the time he was released, he “‘still would have been at or near .08, if the breathalyser [sic] was accurate.’” Thus, the trial court concluded “that the magistrate’s processing of defendant was not prejudicial because defendant was so intoxicated that his length of detention and bond amount [were] proper.”

The court of appeals held that the trial court’s findings and conclusions were supported by competent evidence, that the magistrate followed G.S. 15A-511(b), and that any deviation from the statutory requirements was not prejudicial to the defendant. Thus, the court concluded that the trial court did not err in denying the defendant’s motion to dismiss pursuant to Knoll.

The State prevailed in Kostick, but the court’s reasoning may prove a boon for defendants in future cases.  In my view, rather than clarifying the circumstances that warrant relief under Knoll, Kostick further confuses the analysis.

Here are my concerns:

• Kostick fails to distinguish between the purposes for setting bond and for imposing an impaired driving hold.  The court appears to assume that imposing a secured bond for a defendant is an acceptable way of ensuring that he or she is not released while impaired.  That’s obviously not the case, since some defendants manage to post bond fairly immediately.  Moreover, when a defendant charged with an impaired driving offense is impaired to the extent that his release poses a danger, magistrates are authorized to impose an impaired driving hold.  A defendant subject to an impaired driving hold may be released to a sober, responsible adult who is willing and able to assume responsibility for him until he is no longer impaired or when he is no longer impaired to the extent he imposes a danger. G.S. 15A-534.2. To impose such a hold a magistrate must complete AOC-CR-270 and must make written findings about the basis for her conclusion that the defendant is so impaired that a hold is warranted.
• When a magistrate appropriately advises a defendant at his initial appearance and he is lawfully held, the court need not consider whether the defendant is prejudiced by the detention.  Knoll provided for relief for defendants who suffer a substantial denial of their right to pre-trial release and who are prejudiced by that denial.  Kostick suggests that the $500 secured bond might have been improperly imposed due to the magistrate’s consideration of the gun in defendant’s truck. Thus, the appellate court, like the trial court, proceeded to the prejudice analysis.  This strikes me as an unnecessary step that confused the analysis. Given that a $500 secured bond is an entirely appropriate and relatively routine release condition for an out-of-state resident charged with DWI, the appellate court could have avoided the prejudice analysis altogether.
• The court’s analysis about the defendant’s likely alcohol concentration at the time he is released is particularly concerning. While a defendant has the right to obtain an independent chemical analysis after he is released, he has no right to be released so that he may obtain such an analysis.  While Kostick might be read to support this latter proposition, any such interpretation would contravene the magistrate’s authority to set conditions of release and to impose impaired driving holds when appropriate. Cf. State v. Bumgarner, 97 N.C. App. 567 (1990) (holding that dismissal was not warranted based upon the failure of law enforcement officials to take the defendant to the hospital for additional testing or to withdraw blood for later testing).
• Kostick suggests that prejudice results from a defendant’s inability to obtain an independent chemical test.  The prejudice with which Knoll primarily was concerned, however, was a defendant’s lack of access to witnesses who could form an opinion about his impairment.  Thus, it seems quite probable to me that informing a defendant of the procedures for gaining access to witnesses and affording that access may be sufficient to extinguish any prejudice resulting from a substantial statutory violation of a defendant’s right to pretrial release.  Cf. State v. Daniel, 208 N.C. App. 364 (2010) (determining that even if a statutory violation occurred, the defendant was not irreparably prejudiced, since a witness met with the defendant shortly after her initial appearance).

Litigants, what do you make of Kostick?