State v. Lindsey:  Another Close Call on Probable Cause for DWI

Do the following facts provide probable cause to arrest for impaired driving? An officer pulls behind a vehicle at a stoplight around 3 a.m. and sees that its registration is expired.  He activates his blue lights, and the defendant turns into a nearby parking lot. When the officer approaches the car, the defendant tells him that his license is revoked for DWI.  The officer smells a medium odor of alcohol coming from the defendant’s breath and sees that the defendant’s eyes are red and glassy. The officer performs an HGN test, noting 5 of 6 indicators of impairment. The defendant tells the officer that he had three beers at 6 p.m. the previous evening.  The court of appeals answered this question earlier this week in State v. Lindsey, ___ N.C. App.  ___ (2016).  Its answer, and the outcome of the case, may surprise you. Yes, the court of appeals held, these facts do provide probable cause to arrest for impaired driving. The absence of poor driving, a traffic violation, an accident, or slurred speech does not dictate a different result; nor does evidence that the defendant was steady on his feet, cooperative, and able to follow instructions. What about State v. Sewell?  Last year, the court of appeals held in State v. Sewell, __ N.C. App. ___, 768 S.E.2d 650 (2015) (unpublished) (discussed here) that an officer’s observation of the driver’s red, glassy eyes, six of six clues on the HGN test, and positive results on a portable breath test did [...]