I was recently asked to talk to a group of attorneys about “hot topics” related to the criminal prosecution of impaired driving. Those of you who practice in the field are doubtless better equipped than I am to identify those topics. If pressed, I’d put these items on the list: (1) how the two-year statute of limitations applies to misdemeanors charged by magistrate’s order; (2) the admissibility of expert testimony by law enforcement officers, particularly regarding horizontal gaze nystagmus; (3) the admissibility of the results of warrantless blood tests; and (4) the appropriate remedy for statutory violations related to a defendant’s arrest and pre-trial detention. While the state supreme court has yet to issue its opinion regarding the statute of limitations issue in State v. Turner (discussed here) and neither the court of appeals nor the supreme court has opined about the admissibility of horizontal gaze nystagmus testimony following the 2011 amendment of Rule 702, recent court of appeals cases address both of the remaining issues.
Warrantless blood tests. The United States Supreme Court held in McNeely v. Missouri, ___ U.S. ___, 133 S. Ct. 1552 (2013), that the dissipation of alcohol from a person’s body did not create a per se exigency in every impaired driving case that excused the requirement for a warrant authorizing the withdrawal of a defendant’s blood for analysis. Instead, whether a warrant is required or excused by an exigency must be determined based on the totality of the circumstances. If the time required to obtain a warrant will significantly undermine the efficacy of the search, then no warrant is required.
The court of appeals has analyzed whether an exigency existed in a couple of earlier post-McNeely cases. The court held in State v. Dahlquist, 231 N.C. App. 100 (2013) (discussed here), that the four to five hours that the arresting officer estimated would have elapsed had he first traveled to the intake center at the jail to obtain a search warrant and then taken the defendant to the hospital for a blood draw constituted an exigency sufficient to excuse the Fourth Amendment’s warrant requirement. Likewise, the court in State v. Granger, 235 N.C. App. 157 (2014) (discussed here), held that exigent circumstances justified the warrantless withdrawal of the defendant’s blood about an hour and a half after he drove when it would have taken an additional 40 minutes to obtain a warrant and it was impractical for the lone investigating officer to leave the defendant unattended in the hospital.
This week, the court of appeals held in State v. Burris, __ N.C. App. __ (May 16, 2017), that the estimated additional hour and a half that it would have taken the officer to obtain a search warrant was sufficient to constitute an exigency in a case in which the officer had information to suggest that the defendant’s alcohol concentration was close to a 0.08. The officer in Burris based his assessment of the defendant’s alcohol concentration on a .10 reading on a roadside portable breath test. The court of appeals did not address how the consideration of this reading comported with G.S. 20-16.3(d), which provides that the “fact that a driver showed a positive or negative result on an alcohol screening test, but not the actual alcohol concentration result . . . may be used by a law enforcement officer [and] is admissible in court . . .in determining if there are reasonable grounds for believing” that the driver committed an implied consent offense.
Knoll motions. Everyone involved in DWI litigation knows about State v. Knoll, 322 N.C. 535 (1988), the case in which the state supreme court affirmed the dismissal of charges against three DWI defendants after determining that violations of the pretrial release statutes in each of their cases prejudiced their abilities to present a defense. What everyone doesn’t seem to know is the batting average for defendants litigating such motions before the court of appeals in the years following Knoll. There isn’t a single published case determining that a magistrate’s violations in setting conditions of pretrial release or a jailer’s conduct thereafter prejudiced a DWI defendant so as to warrant dismissal of the charges. See, e.g., State v. Labinski, 188 N.C. App. 120 (2008); State v. Bumgarner, 97 N.C. App. 567 (1990); State v. Haas, 131 N.C. App. 113 (1998).
In light of that record, the court’s holding in State v. Cox, ___ N.C. App. ___ (May 2, 2017), is not particularly surprising. The defendant in Cox was charged with second degree murder based on driving while impaired and crashing into another car, killing the driver almost immediately upon impact. The defendant alleged that his constitutional and statutory rights were violated by the seven-hour delay between his arrest and his initial appearance. The court of appeals disagreed, noting that the defendant was taken to the hospital shortly he was arrested, where he was advised of his implied consent rights, including the right to call a witness and an attorney. In addition, a telephone was available to him in the hospital room. After the defendant’s blood was drawn, he was taken to the police station for an interview, where he was advised of his Miranda rights. He agreed to be interviewed without an attorney present. Before he appeared before the magistrate, the defendant called a friend, but did not ask him to come to the jail. Based on this evidence, the court concluded that the defendant “was afforded multiple opportunities to have witnesses or an attorney present . . . which he elected not to exercise.” As a result, the court held that he could not assert that he was prejudiced by the absence of a witness or attorney or the time that elapsed between his arrest and initial appearance.
One more for the litigants. I don’t know that it qualifies as a hot topic, but the issue of jury unanimity certainly is an interesting one in DWI cases. Though there are three ways to prove impairment, the State is not required allege the theory or theories upon which it relies in the charging instrument. See State v. Coker, 312 N.C. 432 (1984) (characterizing the State’s decision whether to prosecute defendant with evidence that he drove while under the influence of an impairing substance under subsection (a)(1) or evidence that his blood alcohol concentration met or exceeded the per se limit under subsection (a)(2) as is a decision “as to the theory of the trial rather than a decision as to what offense to proceed upon”). In addition, disjunctive jury instructions regarding the theory of impairment typically are permissible in impaired driving trials. See State v. Oliver, 343 N.C. 202, 215 (1996) (stating that even if some jurors found that the “defendant was under the influence of an impairing substance” while others “found defendant’s alcohol concentration was 0.08 or more at some relevant time after driving, the fact remains that jurors unanimously found defendant guilty of the single offense of impaired driving”). The rule permitting disjunctive instructions in DWI cases only applies, however, if there is evidence to support more than one theory of impairment. Thus, the court of appeals held this week in State v. Fowler, ___ N.C. App. ___ (May 16, 2017), that the trial court erred in instructing the jury on driving while impaired based on an alcohol concentration of .08 or more when no evidence of the defendant’s alcohol concentration was presented at trial. The trial court rejected the State’s argument that the error was harmless, citing precedent establishing that this sort of error entitled the defendant to a new trial.
Are there other hot topics in DWI world that I ought to be blogging, teaching, or thinking about? If so, please let me know!