Don’t Instruct the Jury on a Theory that’s Not Supported by the Evidence

Some offenses can be proved by alternative theories. For example, impaired driving occurs when a person drives while (1) while under the influence of an impairing substance, (2) after consuming a sufficient quantity of alcohol that the person has an alcohol concentration of 0.08 or more at any relevant time after the driving, or (3) with any amount of a Schedule I controlled substance or its metabolites in his or her blood or urine. See Jessica Smith, North Carolina Crimes: A Guidebook on the Elements of Crime (7th ed. 2012). The three options noted above constitute three separate theories upon which an impaired driving conviction can rest. Similarly, kidnapping occurs when a person (1) confines, (2) restrains, or (3) removes a person and other elements are satisfied. Id. The three options—confines, restrains, or removes—constitute three separate theories upon which a kidnapping conviction can rest. Sometimes alternative theories are bound up in the definition of an element of an offense. For example, first-degree sexual assault with a child requires, among other things, that the defendant engage in a “sexual act” with the victim. Id. The term sexual act is defined to include, in part, (1) cunnilingus, (2) analingus, (3) fellatio, and (4) anal intercourse. Id. These acts constitute separate theories that can support a sex offense conviction.

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May an Officer Search a Vehicle Incident to an Arrest for DWI?

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.

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