Yesterday was opinion day at the court of appeals. And while it wasn’t officially designated as DWI opinion day, several of yesterday’s opinions resolve significant and recurring issues in DWI litigation. Today’s post will cover the highlights. Continue reading
Tag Archives: speedy trial
DWI Day at the Court of Appeals
What to Do About Outstanding Arrest Warrants
Have you ever been involved in a case in which the defendant was convicted of a criminal charge, did his time, and then was served with an outstanding warrant even though the warrant was pending when he was convicted of the other charge? If the warrant had been served earlier, the defendant could have taken care all of his criminal business at once. Doing so would save the court time, allow the State to come up with an appropriate resolution of all the charges, and allow the defendant to coordinate his defense and, if convicted, seek concurrent sentences or a combination of active and probationary time. If resolved before a single court at the same time, the charges could be consolidated for judgment (G.S. 15A-1340.15(b)) and also would result in fewer prior record points (G.S. 15A-1340.14(d)).
A little-noticed piece of legislation from 2015, S.L. 2015-48 (H 570), attempts to address the problem of unserved warrants. Effective October 1, 2015, the legislation directs law enforcement agencies, the Division of Adult Correction, prosecutors, and the courts to identify and attempt to resolve outstanding warrants while other charges are pending or the defendant is in custody.
The state crime lab and other local laboratories perform nearly 10,000 blood toxicology analyses annually, the vast majority of them in impaired driving cases. Unlike breath analysis results, which the State has in hand before a person’s initial appearance in an impaired driving case, several months may elapse after a person’s arrest for impaired driving charges before the State receives a toxicology report analyzing the defendant’s blood. The reasons for the delay are several. It takes time for the sample to reach the laboratory. The testing process itself is more time-consuming than that associated with a breath-testing instrument’s analysis of a breath sample. Laboratory analysts have less time in the laboratory in a post-Melendez-Diaz world, since they often must travel to courthouses across the state to testify about their analyses. Finally, there is a shortage of analysts.
The News and Observer reported last month—in connection with a story on Senate Bill 3, which would create a regional crime lab in western North Carolina—that blood test results in impaired driving cases can take “up to a year to come back” from the state crime lab. I’ve heard anecdotal reports (like this) of even longer delays. As the turnaround time for toxicology reports increase, many have questioned how such delays affect a defendant’s right to speedy trial.
A court considering a defendant’s motion to dismiss on speedy trial must assess four factors: (1) length of the delay; (2) reason for the delay; (3) the defendant’s assertion of his or her right to a speedy trial; and (4) prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530 (1972). The length of the delay is a triggering mechanism. When the delay reaches a threshold that is presumptively prejudicial, the court must inquire into the other factors. Given that delays approaching one year are considered to trigger this threshold for purposes of felony charges, see Doggett v. United States, 505 U.S. 647, 671 (1992), and “the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge,” see Barker, 407 U.S. at 531, the postponement of misdemeanor impaired driving trials for periods approaching a year to allow time for laboratory toxicology testing easily triggers examination of the remaining three factors.
In considering the reason for the delay, Barker assigned different weights to different reasons: A deliberate attempt by the State to delay trial in order to hamper the defense weighs heavily against the government. More neutral reasons, such as “negligence or overcrowded courts” weigh less heavily against the government, but nevertheless must be considered “as the ultimate responsibility for such circumstances . . . rest[s] with the government rather than with the defendant.” Id. at 531. A valid reason, such as a missing witness, justifies appropriate delay. North Carolina’s appellate courts have required a defendant to offer prima facie evidence that the delay was caused by the neglect or willfulness of the prosecution, see State v. Spivey, 357 N.C. 114, 119, 579 S.E.2d 251, 255 (2003) (stating that the constitution does not outlaw good-faith delays that are reasonably necessary for the State to prepare and present its case). Only after the defendant has met this burden must the State offer evidence explaining the reasons for the delay. Id.
Thus, a question central to determining whether a defendant’s right to speedy trial has been violated by the delay of trial to obtain toxicology results is whether routine delays for purposes of forensic testing may be attributed to the neglect of the prosecution or, instead, whether such delays are neutral factors.
John Rubin wrote here about the court of appeals recent decision in State v. Sheppard, 2013 WL 601101 (February 19, 2013) (unpublished), finding that the defendant’s right to a speedy trial was violated by the fourteen month delay in her trial on impaired driving charges. The trial court in Sheppard weighed the seven-month delay before the State received the toxicology results “‘more neutrally,’” given that the State “‘should be given a reasonable amount of time to prepare its case.’” The seven month delay after the lab report was filed, in contrast, weighed more heavily in the balance against the State.
Several years ago, the court of appeals in State v. Dorton, 172 N.C. App. 759 (2005), did not disturb similar reasoning by a trial court, which found that delay caused by a backlog in testing at the State Bureau of Investigation was “not attributable to the District Attorney’s office.” Id. at 765. The Dorton court rejected the defendant’s contention that the delay was attributable to the State, noting that the defendant’s burden was to show prosecutorial neglect or willfulness. Similarly, the court of appeals for Maryland in Glover v. State, 792 A.2d 1160, 1169 (Md. 2002) considered delay resulting from an eight month wait for DNA test results “a valid justification in these circumstances,” given that “DNA evidence is highly technical, often requiring courts to allow more time for completion of the tests and review, by both parties, of the results.” The court cautioned, however, that the State has a duty to ensure “that critical discovery materials, such as DNA evidence, are properly monitored and accounted for, and not simply collecting dust in state or federal crime labs.”
Courts from several other jurisdictions have weighed delays associated with laboratory testing against the State in the Barker balancing test, but not heavily. See, e.g., Ben v. State, 95 So. 3d 1236, 1243, 1247 (Miss. 2012) (noting, with respect to thirteen month attributable to state crime lab, court’s reluctance “to weigh heavily against the State investigative delay caused by an instrumentality of the State, such as the state crime lab,” and citing relevant authority); State v. Magnusen, 646 So.2d 1275, 1281 (Miss. 1994) (concluding, with respect to a five-month delay for serology reports from the state crime lab, that “the official neglect of an understaffed and overworked crime lab gives this portion of the delay to the defendant but barely.”); State v. Tortolito, 950 P.2d 811, 815 (N.M. 1997) (weighing eleven month delay attributable to the DNA testing against the State, but not heavily, where DNA and other evidence requiring scientific analysis was tested in its normal order of priority in the State’s crime lab and testing was prolonged in part by the small size of the DNA samples collected from the crime scene); see also Vanlier v. Carroll, 535 F. Supp. 2d 467, 479-80 (D. Del. 2008), aff’d, 384 F. App’x 155 (3d Cir. 2010) (determining that State should not be held accountable for typical amount of time needed to conduct DNA test, which court calculated as two months, and holding that remaining ten months of DNA testing period should be weighed against the State, but not heavily, given facts of case).
Thus, it seems unlikely that a defendant can establish a speedy trial violation in a misdemeanor impaired driving case based solely on nearly year-long delays in toxicology reports. Yet, even if crime lab delays approaching a year weigh only slightly or not at all against the State, other factors, such as prejudice to the defendant may tip the balance in the defendant’s favor. And while delays of a year or less may be considered neutral or only slightly in the defendant’s favor, at some point the delays may become so long that the factor may weigh more heavily against the State.
District court litigators, tell us your experience. Are toxicology delays of a year routine? Are the delays routinely longer? Have you seen an uptick in motions to dismiss on speedy trial grounds? How do courts in your district weigh crime lab delays in the balance?
In State v. Friend, ___ N.C. App. ___, 724 S.E.2d 85 (2012), the Court of Appeals addressed the district court’s authority when, after the court refuses to allow a continuance, the State takes a voluntary dismissal and subsequently refiles the case. In Friend, the State voluntarily dismissed an impaired driving charge after the district court denied the State’s motion for a continuance; and when the State filed a new impaired driving charge nine days later based on the same incident, the district court dismissed the charge in light of its earlier refusal to grant the State a continuance. The Court of Appeals found that dismissal was not a proper remedy. The court found that the State’s taking of a voluntary dismissal and reinstitution of the charges after the district court’s denial of a continuance did not interfere with the district court’s authority over the calendar and therefore did not constitute a separation of powers violation. The court also found in the circumstances of the case that proceeding with prosecution of the charges did not violate the defendant’s speedy trial and due process rights. My colleague Shea Denning summarized the case here.
In State v. Sheppard, ___ S.E.2d ___ (Feb. 19, 2013), the Court of Appeals in an unpublished opinion further considered the problem of delay in district court, this time upholding dismissal of the charges on speedy trial grounds. In Sheppard, as in Friend, the defendant was charged with impaired driving. Also as in Friend, when the district court denied the State’s request for a continuance (in this case after an 11-month delay following arrest), the State took a voluntary dismissal and, later the same day, refiled the charges and rearrested the defendant. The district court denied the defendant’s motion to dismiss for a speedy trial violation, and the defendant was tried and convicted in district court, but on appeal for a trial de novo the superior court granted the motion to dismiss for a speedy trial violation. The Court of Appeals affirmed the superior court’s ruling, holding that the fourteen-month delay from the defendant’s arrest to her trial in district court supported the motion. In reaching its conclusion, the Court of Appeals rejected the State’s argument that the defendant waived her speedy trial right by objecting to the chemical analyst’s affidavit and asserting her right to confront the analyst at trial, recognizing that a defendant may not be required to give up one constitutional right to assert another.
The general takeaways from Friend and Sheppard on calendaring in district court can be summarized as follows:
1. The district court has ultimate authority over its calendar and may refuse to grant a request for a continuance by the State. Friend recognized this authority in light of Simeon v. Hardin, 339 N.C. 358 (1994), which addressed the limits on prosecutorial control over the criminal calendar, and Sheppard reinforces the principle. See also Michael Crowell, Control of the Calendar in Criminal District Court (UNC School of Government, July 2010). (Note that G.S. 20-139.1(e2) contains special provisions on continuances in impaired driving cases involving testimony by a chemical analyst; the statute was not directly at issue in either case.)
2. If the district court refuses to grant a continuance, the State must proceed with the case or take a voluntary dismissal. Because the court has ultimate authority to manage cases on its calendar, the State may not ignore the court’s order denying a continuance and unilaterally reschedule the case to a different date. See generally Crowell at 4. If the State does not take a voluntary dismissal, the district court may order the State to call its first witness and, if the State does not proceed, may acquit the defendant for a failure of proof. See State v. Watts, 35 So.3d 1, 7 (Ala. Crim. App. 2009); People v. Mooar, 416 N.E.2d 81, 84 (Ill. App. Ct. 1981).
3. If the State takes a voluntary dismissal and subsequently refiles the charges, the district court may not dismiss the case solely because the court previously denied the State’s request for a continuance. Although refiling of the charges may seem in derogation of the court’s previous scheduling orders, Friend found that refiling does not unconstitutionally interfere with the court’s authority over the calendar.
4. A district court has the authority to dismiss a case after refiling if prosecution of the charges violates other of the defendant’s rights. (Note that G.S. 20-38.6 contains special provisions on dismissal motions in impaired driving cases.) Thus:
- If the two-year statute of limitations for misdemeanors has run (measured from the offense date to the refiling date), the defendant is entitled to dismissal. See generally State v. Madry, 140 N.C. App. 600 (2000).
- If there was delay in prosecution of the case before the State took a dismissal, the district court may consider that delay along with any delay after refiling of the case in ruling on a motion to dismiss for violation of the right to a speedy trial. See United States v. Columbo, 852 F.2d 19, 23–24 (1st Cir. 1988) (“Were it otherwise, the government would be able to nullify a defendant’s speedy trial right by the simple expedient of dismissing and reindicting whenever speedy trial time was running out on its prosecution.”). In Friend, the court stated that it did not need to consider the delay in district court because the defendant did not make a speedy trial demand until after he appealed for a trial de novo in superior court; therefore, only the delay in superior court was relevant. This interpretation seems inconsistent with the four-factor analysis for speedy trial claims in Barker v. Wingo, 407 U.S. 514 (1972), under which a request for a speedy trial is one factor and not determinative. (Notwithstanding its initial statement, the court in Friend went on to consider the entire delay in assessing and ultimately rejecting the defendant’s speedy trial claim.) Friend’s view of the applicable period of delay was not at issue in Sheppard, in which the defendant made eight speedy trial requests in district court and another four requests in superior court.
- A due process violation may also provide grounds for dismissal. In Simeon v. Hardin, 339 N.C. at 377–78, a civil action for declaratory and injunctive relief, the Court found that the plaintiff’s allegations about the district attorney’s calendar practices were sufficient to state a claim of a due process violation (and potentially other constitutional violations), and the case was remanded for further proceedings. The plaintiffs alleged that the practices included, among other things: manipulating the calendar to exact pretrial punishment on incarcerated defendants and pressure defendants to plead guilty; calling cases for trial without adequate notice, thereby impairing the quality of representation; and calendaring cases repeatedly and causing defendants unnecessary expense and inconvenience. Friend found no violation of due process; Sheppard did not address the issue.
5. If the State refiles the charges after taking a voluntary dismissal and issues an arrest warrant rather than a criminal summons, rearrest may lend support to a claim of a speedy trial violation per the prejudice factor in Barker v. Wingo or a due process violation per Simeon v. Hardin. While the court probably could not dictate the criminal process to be used by the State should it decide to refile, the court certainly could unsecure any bond for a defendant if rearrested.
Friend and Sheppard are probably not the last words on calendaring in district court, but they advance our understanding of the applicable principles and procedures.
The News and Observer ran a story recently — available here — about the length of time it takes to resolve murder cases in North Carolina. The average time to disposition was 528 days last year. That figure includes cases resolved by plea or dismissal, suggesting that the average time to trial is probably longer. The story included a thoughtful Q&A with Jim Cooney and Colon Willoughby, who identified factors such as the large number of cases that are declared potentially capital at a Rule 24 hearing, the volume of discovery that’s common in murder cases, and the difficulty of coordinating schedules to set trial dates, especially in multi-defendant trials.
One factor that wasn’t mentioned in the article is North Carolina’s lack of a speedy trial statute. Of course, North Carolina defendants have constitutional speedy trial rights under the Sixth and Fourteenth Amendments. But those rights generally don’t “kick in” until a year has passed, at which point, courts apply a four-factor test to determine whether a defendant’s constitutional speedy trial rights have been compromised. See, e.g., State v. Washington, __ N.C. App. __ (2008) (listing factors and vacating a conviction after a delay of four years and nine months).
North Carolina’s lack of a statutory speedy trial scheme stands in contrast to, for example, the federal system, where 18 U.S.C. s. 3161(c)(1) requires that trial begin within 70 days of indictment, subject to certain exceptions and exclusions. The leading criminal law treatise indicates that “all but a few” states have speedy trial statutes. 4 Wayne R. LaFave et al., Criminal Procedure, s. 18.3(c) (2d ed. 1999). My anecdotal sense is that most of those statutes set time limits far shorter than one year, i.e., that most of the statutes are more protective of a defendant’s speedy trial right than is the Constitution.
Interestingly, North Carolina used to have a speedy trial statute. Former G.S. 15A-701 et seq., the Speedy Trial Act, “required that the defendant be tried within 120 days of the date the defendant was arrested, served with criminal process, waived indictment or was indicted, whichever occurred last, unless that time was extended by certain specified events.” State v. Willis, 332 N.C. 151, 162 (1992). However, the Speedy Trial Act was repealed in 1989. I don’t know why that was done, and since the General Assembly doesn’t record floor debates and usually provides very limited records of committee hearings, I doubt that there’s an official record explaining the reason for the repeal. If I’m wrong about that, please let me know — and if anyone can remember the scuttlebutt about the repeal from 1989, please chime in about why it happened.
Obviously, a speedy trial statute wouldn’t be a panacea for delays, some of which are inevitable, and perhaps desirable, in complex cases. Further, if Mr. Willoughby is correct that most delays come from the defense side, giving the defendant a speedy trial right wouldn’t address the root of the concern. (But some speedy trial statutes bind both sides.) In any case, it’s at least worth considering whether the absence of such a statute contributes to delays. Thoughts? Opinions? Comments?
Update: The United States Supreme Court just decided a speedy trial case, Vermont v. Brillon, available here. The gist of the case is that delays sought by court-appointed counsel are normally attributable to the defendant — because that is who counsel represents — not to the state.