State v. Simmons: New Trial Granted on DWI Charges Based on State's Improper Reference to State v. Narron

The court of appeals in State v. Simmons, ___ N.C. App. ___ (July 20, 2010), decided this week, awarded a new trial to a defendant convicted of impaired driving, finding that the prosecutor made improper and prejudicial remarks in his closing argument.  The court found a substantial likelihood that these comments led the jury to believe that it was compelled to return a guilty verdict based on the results of the chemical analysis—a 0.11 in Simmons’ case. The prosecutor’s  improper  remarks were references to trial proceedings in State v. Narron, 193 N.C. App. 76 (2008), a case in which the court of appeals upheld G.S. 20-138.1 as constitutional and rejected the defendant’s argument that the provision in subdivision (a)(2) that “[t]he results of a chemical analysis shall be deemed sufficient evidence to prove a person’s alcohol concentration” constitutes a mandatory presumption that violates the due process requirement that the State prove every essential element of the crime. Narron explained that rather than creating an impermissible evidentiary or factual presumption the objected-to provision simply states the standard for prima facie evidence of a defendant’s alcohol concentration. Put another way, this provision authorizes, but does not compel, a jury to find that the results of a chemical analysis accurately reflect a defendant’s alcohol concentration. And while Narron noted there was no reason for the trial court to call to the jury’s attention that the chemical analysis was the basis for the trial court’s determination that the State had presented prima facie proof of [...]