What Not to Do in an Impaired Driving Case (Post II)

The first post in this series discussed State v. Taylor. This one recounts the what not to do lessons from last week’s court of appeals’ decision in State v. Petty . The defendant in Petty was charged on April 28, 2006 with impaired driving. He moved to dismiss the charges pursuant to State v. Knoll, 322 N.C. 535 (1998) (discussed here) alleging a violation of his right to timely pre-trial release. After a hearing on the motion, a district court judge dismissed the charges. The state appealed from the district court’s order. Because the offense was committed before December 1, 2006, it was not governed by the current procedures for motions in implied-consent cases, discussed here. (Under current G.S. 20-38.6, a district court judge may initially enter only a preliminary indication that a motion to dismiss be granted, and may not enter a final judgment until after the State has appealed to superior court or has indicated it does not intend to appeal.) The superior court reversed the district court’s order dismissing the charges but limited the State’s case to proof under the per se prong of G.S. 20-138.1. (The court of appeals in State v. Rasmussen, 158 N.C. App. 544, 554 (2003), characterized dismissal of the appreciable impairment theory of impaired driving in that case as curing any prejudice resulting from the denial of access to witnesses to field sobriety tests.) The superior court remanded the case to district court for further proceedings. The defendant pled guilty to the impaired driving charges [...]