I have written before about the cache associated with a handful of unpublished opinions from the North Carolina Court of Appeals. Sure, they aren’t binding, but they can be persuasive. My guess is that the Court’s December 2023 opinion in State v. C.K.D.. No. COA23-204, 2023 WL 8748032, ___ N.C. App. ___, 895 S.E.2d 923 (2023) (unpublished), has been used as a persuasive tool in more than a few impaired driving cases since it was decided. The C.K.D. Court upheld the dismissal of impaired driving charges based on the detention of the defendant for 11 hours following his initial appearance pursuant to an impaired driving hold. The Court determined that (1) there was no clear and convincing evidence that the defendant who had registered a 0.17 alcohol concentration posed a danger, and (2) holding the defendant for 11 hours irreparably prejudiced the defendant’s case by depriving him of the opportunity to have others observe his condition, even though the defendant indicated he did not wish to call anyone to witness his condition in the jail or to assume responsibility for him as a sober, responsible adult. I was a bit surprised by the outcome. I would have thought that the alcohol concentration standing alone would have been sufficient to support the hold. I also would have thought that the defendant’s failure to attempt to contact anyone from jail would have defeated his claim of irreparable prejudice. As noted, I would have been wrong on both counts. This post will discuss C.K.D., [...]
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