If I were to compile guidance for law enforcement officers and judges on “what not to do” in an impaired driving case, I’d be sure to include excerpts from two cases decided by the court of appeals this week: State v. Petty and State v. Taylor.
Let’s start with Taylor, reserving discussion of Petty for a later post. The defendant in Taylor, then the chief deputy of the Lincoln County Sheriff’s Department, interfered with the criminal processing of a doctor arrested for impaired driving. The doctor, whose medical practice employed the defendant’s girlfriend, was stopped after he drove past a checkpoint. The doctor smelled of alcohol, admitted to consuming several alcohol beverages, showed signs of impairment, and refused to blow into an Alco-Sensor. He was arrested for impaired driving and taken to the sheriff’s office for a chemical analysis of his breath. That chemical analysis never occurred, however. Instead, when the doctor arrived at the sheriff’s department, the defendant (who upon hearing of the doctor’s arrest left his home for the sheriff’s department in the early morning hours) took the doctor into his office. The two spent twenty minutes alone before the defendant emerged and requested that the arresting officer bring to him an Alco-Sensor (a device the defendant was not trained to use). After obtaining the Alco-Sensor, the defendant returned to his office, where he and the doctor remained for another twenty minutes. The defendant then informed the arresting officer that the doctor had blown a 0.07 on an Alco-Sensor and that he had been released.
The defendant was charged by indictment with felonious obstruction of justice and convicted by the jury of the lesser-included offense of misdemeanor obstruction of justice. He filed a motion for appropriate relief (MAR), which was denied by the trial court. Defendant appealed his conviction and the denial of the MAR. The court of appeals found no error at trial and affirmed the denial of the MAR.
Most of the court’s analysis is dedicated to its rejection of the defendant’s contention that enactment of G.S. 14-233, (which defines the offense of resisting, delaying or obstructing an officer, a Class 2 misdemeanor), eviscerated the common law offense of obstruction of justice along with its rejection of defendant’s contention that the statute of limitations barred his conviction of the lesser included misdemeanor offense.
What’s interesting in terms of impaired driving law is the court’s rejection of defendant’s argument that the court by failing to instruct the jury that “‘it should find the defendant not guilty unless it was convinced beyond a reasonable double that [the arresting officer] had sufficient legal justification to process [the doctor] for impaired driving,’” since “‘[t]here is nothing illegal about obstructing the processing of an illegal arrest.’” (Slip op. at 22.) (The defendant did not request this instruction at trial.)
Even assuming, for purposes of discussion, that the defendant had the legal right to intervene to prevent further processing of the doctor based on his conclusion that the arresting officer lacked probable cause, the court held there was insufficient evidence to permit a jury determination that probable cause was lacking. While the evidence pointed to by the defendant, such as the 0.07 Alco-Sensor result and testimony from the doctor that the arresting officer told him that he “did fine” on a field sobriety test and that defendant administered additional field sobriety tests, would have been admissible at the doctor’s trial (if there had been one), it did not demonstrate that the arresting officer lacked probable cause. The court deemed significant the time lapse between the arresting officer’s observations of the doctor at the checkpoint and the defendant’s observations in his office. Incidentally, the time delay doesn’t strike me as overly significant, given that the defendant took the doctor into his office immediately upon the doctor’s arrival and spent only forty minutes there. After all, the arresting officer planned to administer a chemical analysis of the defendant’s breath, which would have required at least a fifteen minute delay to satisfy the observation period requirements.
Furthermore, the court found no evidence that defendant had any right or obligation to determine whether a subordinate had arrested a suspect without probable cause and to take corrective action, characterizing the record has “devoid of any evidence testing to show that Defendant had the responsibility for ‘un-arresting’ the doctor.” Thus, the court held that the defendant failed to demonstrate the record evidence would have supported delivery of this instruction, even if it was a correct statement of the law, an issue the court made clear it was not deciding.
I’ve heard the term “un-arrest” used before though I’m not sure the act described can actually be carried out (at least by an ordinary Muggle). The term is used to distinguish an arrested person’s release by an officer before an initial appearance from the release of such a person after an initial appearance (based either on a finding of no probable cause or upon the satisfaction of conditions of release). Are officers ever permitted to carry out such pre-initial appearance releases or, in other words, to “un-arrest” people? G.S. 15A-501(2) provides that a law enforcement officer must take a person who is arrested “before a judicial official without unnecessary delay.” A literal reading of this provision would require that when a law enforcement officer arrests someone and later determines that probable cause is lacking that he nevertheless proceed to take the person before a magistrate. My colleague and Fourth Amendment guru Bob Farb has opined that, notwithstanding this statutory requirement, “federal constitutional law appears to require that officers must release an arrestee when probable cause clearly no longer exists.” Robert L. Farb, Arrest, Search, and Investigation in North Carolina 45 & n. 365 (3rd ed. 2003) (citing federal cases). Thus, Bob advises that in such a situation, officers “release the arrestee in a safe place.” Id.
In any event, the requirement that a defendant be released when it becomes clear that probable cause no longer exists was of no moment in Taylor’s case, where the record was replete with evidence that supported the arresting officer’s determination.
The “what not to do” lesson from Taylor is rather obvious: Don’t use your official position to hinder the arrest and processing of a defendant for impaired driving when the arrest is supported by probable cause.