State v. Osterhoudt and motions procedures in implied consent cases

Jeff wrote earlier this week about the court of appeals’ opinion in State v. Osterhoudt (August 21, 2012).  Jeff’s post dealt with the court’s substantive analysis of whether the police officer who stopped the defendant had the reasonable, articulable suspicion required to render the stop lawful under the Fourth Amendment. I want to focus on another, admittedly less sexy, aspect of the opinion:  its procedural history. The prosecution of the defendant in Osterhoudt began, as most misdemeanor DWI prosecutions do, in district court. Before trial, the defendant filed a motion to suppress evidence resulting from the stop.  Though motions to suppress evidence in misdemeanor prosecutions in district court ordinarily may be made during trial, see G.S. 15A-973, G.S. 20-38.6 requires that such motions be made pre-trial when the defendant is charged with an implied consent offense, unless the motion is based upon facts discovered by the defendant during the course of the trial. When a defendant moves to suppress evidence in an implied consent case before trial, the district court judge cannot rule on the motion in the same manner he or she might in any other criminal case. Instead, after holding a hearing on the motion, the district court judge must set forth in writing his or her findings of facts and conclusions of law and “preliminarily indicate” whether the motion should be granted or denied. See G.S. 20-38.6(f).  If the judge preliminarily indicates that the motion should be granted, the judge may not enter a final judgment on the [...]