Smith's Criminal Case Compendium

Smith's Criminal Case Compendium

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This compendium includes significant criminal cases by the U.S. Supreme Court & N.C. appellate courts, Nov. 2008 – Present. Selected 4th Circuit cases also are included.

Jessica Smith prepared case summaries Nov. 2008-June 4, 2019; later summaries are prepared by other School staff.

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E.g., 09/21/2021
E.g., 09/21/2021

For reasons discussed in the court’s opinion, the court held that it lacked jurisdiction to hear the State’s appeal of the defendant’s motion to suppress and that the superior court erred when it remanded the case to the district court with instructions to dismiss.

In this DWI case, the superior court properly dismissed the State’s notice of appeal from a district court ruling granting the defendant’s motion to suppress where the State’s notice of appeal failed to specify any basis for the appeal. Although such a notice may be sufficient for an appeal to the Court of Appeals, the State is required to specify the basis for its appeal to superior court.

The superior court erred by denying the State a de novo hearing from the district court’s preliminary determination that the defendant’s motion to suppress should be granted. At issue was whether G.S. 20-38.7(a) “requires more than a general objection by the State to the district court judge’s findings of fact or an assertion of new facts or evidence in order to demonstrate a ‘dispute about the findings of fact.’” The court held: “Neither the plain language of N.C. Gen. Stat. § 20-38.7(a) nor § 15A-1432(b) requires the State to set forth the specific findings of fact to which it objects in its notice of appeal to superior court.”

In this DWI case where the district court judge entered a preliminary determination that the results of the defendant’s blood alcohol test should be suppressed but the superior court reversed the preliminary determination on the State’s appeal and remanded to the district court for further proceedings, the defendant had no right of appeal to the court of appeals. Because the district court did not enter a final judgment pursuant to G.S. 20-38.6(f) denying the motion to suppress, the defendant could not seek review of the ruling on that motion. Although the court found it had authority to grant certiorari, it declined to do so.

State v. Sisk, 238 N.C. App. 553 (Dec. 31, 2014)

In this habitual impaired driving case, the trial court did not err in admitting the defendant’s blood test results into evidence. The court rejected the defendant’s argument that the officer’s failure to re-advise him of his implied consent rights before the blood draw violated both G.S. 20-16.2 and 20-139.1(b5). Distinguishing State v. Williams, __ N.C. App. __, 759 S.E.2d 350 (2014), the court noted that in this case the defendant—without any prompting—volunteered to submit to a blood test. The court concluded: “Because the prospect of Defendant submitting to a blood test originated with Defendant—as opposed to originating with [the officer]—we are satisfied that Defendant’s statutory right to be readvised of his implied consent rights was not triggered.”

The court rejected the defendant’s argument that the right to have a witness present for blood alcohol testing performed under G.S. 20-16.2 applies to blood draws taken pursuant to a search warrant. The court also rejected the defendant’s argument that failure to allow a witness to be present for the blood draw violated his constitutional rights, holding that the defendant had no constitutional right to have a witness present for the execution of the search warrant.

Relying on State v. Drdak, 330 N.C. 587, 592-93 (1992), and State v. Davis, 142 N.C. App. 81 (2001), the court held that where an officer obtained a blood sample from the defendant pursuant to a search warrant after the defendant refused to submit to a breath test of his blood alcohol level, the results were admissible under G.S. 20-139.1(a) and the procedures for obtaining the blood sample did not have to comply with G.S. 20-16.2. 

In an impaired driving case involving a fatality, the trial court properly granted the defendant’s motion to suppress blood test results. The defendant was transported an intoxilyzer room where an officer read and gave the defendant a copy of his implied consent rights. The defendant signed the implied consent rights form acknowledging that he understood his rights. After thirty minutes, the officer, a certified chemical analyst, asked the defendant to submit to a chemical analysis of his breath, but the defendant refused. The officer then requested that a blood testing kit be brought to the office. Although the officer did not re-advise the defendant of his implied consent rights for the blood test, he gave the defendant a consent form for the testing, which the defendant signed. The defendant’s blood was then drawn. Challenging the trial court’s suppression ruling, the State argued that evidence of the results of the blood test was admissible because the defendant signed a consent form for the testing. The court rejected this argument, concluding that although the State could seek to administer a blood test after the defendant refused to take a breath test, it was required, pursuant to G.S. 20-16.2(a) and G.S. 20-139.1(b5), to re-advise the defendant of his implied consent rights before requesting he take a blood test. The court also rejected the State’s argument that any statutory violation was technical and not substantial and no prejudice occurred because the defendant had been advised of his implied consent rights as to the breath test less than an hour before the blood test. It reasoned: “A failure to advise cannot be deemed a mere technical and insubstantial violation.”

In three consolidated cases the Court held that while a warrantless breath test of a motorist lawfully arrested for drunk driving is permissible as a search incident to arrest, a warrantless blood draw is not. It concluded: “Because breath tests are significantly less intrusive than blood tests and in most cases amply serve law enforcement interests, we conclude that a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving. As in all cases involving reasonable searches incident to arrest, a warrant is not needed in this situation.” Having found that the search incident to arrest doctrine does not justify the warrantless taking of a blood sample, the Court turned to the argument that blood tests are justified based on the driver’s legally implied consent to submit to them. In this respect it concluded: “motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense.”

In this DWI case, the trial court did not err by denying the defendant’s motion to suppress intoxilyzer results. The defendant argued that the trial court improperly concluded that the officer was not required, under G.S. 20-139.1(b5), to re-advise him of his implied consent rights before administering a breath test on a second machine. The defendant did not dispute that the officer advised him of his implied consent rights before he agreed to submit to a chemical analysis of his breath; rather, he argued that because the test administered on the first intoxilyzer machine failed to produce a valid result, it was a “nullity,” and thus the officer’s subsequent request that the defendant provide another sample for testing on a different intoxilyzer machine constituted a request for a “subsequent chemical analysis” under G.S. 20-139.1(b5). Therefore, the defendant argued, the officer violated the defendant’s right under that statute to be re-advised of implied consent rights before administering the test on the second machine. The court disagreed, finding that G.S. 20-139.1(b5) requires a re-advisement of rights only when an officer requests that a person submit to a chemical analysis of blood or other bodily fluid or substance in addition to or in lieu of a chemical analysis of breath. Here, the officer’s request that the defendant provide another sample for the same chemical analysis of breath on a second intoxilyzer machine did not trigger the re-advisement requirement of G.S. 20-139.1(b5).

The trial court erred by granting the defendant’s motion to suppress breath test results from an Intoximeter EC/IR II. The trooper administered the first breath test, which returned a result of .10. When the trooper asked for a second sample, the defendant did not blow hard enough and the machine produced an “insufficient sample” result. The machine then timed out and printed out the first test result ticket. The trooper reset the machine and asked the defendant for another breath sample; the trooper did not wait before starting the second test. The next sample produced a result of .09. The sample was printed on a second result ticket. The trial court granted the defendant’s motion to suppress, concluding that the trooper did not follow the procedures outlined in N.C. Admin. Code tit. 10A, r. 41B.0322 (2009) and because he did not acquire two sequential breath samples on the same test record ticket. Following State v. White, 84 N.C. App. 111 (1987), the court held that the trial court erred by concluding that the breath samples were not sequential. With respect to the administrative code, the court held that it was not necessary for the trooper to repeat the observation period.

Following State v. White, 84 N.C. App. 111 (1987), and holding that under the pre-December 1, 2006 version of G.S. 20-139.1(b3), the trial court did not err by admitting evidence of the lesser of the defendant’s sequential, consecutive Intoxilyzer results, even though the defendant provided an invalid sample between the two tested samples.

In this DWI case, the district court properly dismissed the charges sua sponte. After the district court granted the defendant’s motion to suppress, the State appealed to superior court, which affirmed the district court’s pretrial indication and remanded. The State then moved to continue the case, which the district court allowed until June 16, 2015, indicating that it was the last continuance for the State. When the case was called on June 16th the State requested another continuance so that it could petition the Court of Appeals for writ of certiorari to review the order granting the defendant’s motion to suppress. The district court judge denied the State’s motion to continue and filed the final order of suppression. The district court judge then directed the State to call the case or move to dismiss it. When the State refused to take any action, the district court, on its own motion, dismissed the case because of the State’s failure to prosecute. Affirming, the court noted that when the case came on for final hearing on June 16th, the State had failed to seek review of the suppression motion. And, given that the prosecutor knew that there was no admissible evidence supporting the DWI charge in light of the suppression ruling, a State Bar Formal Ethics Opinion required dismissal of the charges. The court noted: the “State found itself in this position by its own in action.”

The petitioner appealed from his impaired driving conviction on the basis that the State violated the Fourth Amendment by withdrawing his blood while he was unconscious without a warrant following his arrest for impaired driving. A Wisconsin state statute permits such blood draws. The Wisconsin Supreme Court affirmed the petitioner’s convictions, though no single opinion from that court commanded a majority, and the Supreme Court granted certiorari to decide “[w]hether a statute authorizing a blood draw from an unconscious motorist provides an exception to the Fourth Amendment warrant requirement.”  

Justice Alito, joined by Chief Justice Roberts, Justice Breyer and Justice Kavanaugh announced the judgment of the court and wrote the plurality opinion. The plurality noted at the outset that the Court’s opinions approving the general concept of implied consent laws did not rest on the idea that such laws create actual consent to the searches they authorize, but instead approved defining elements of such statutory schemes after evaluating constitutional claims in light of laws developed over the years to combat drunk driving. The plurality noted that the Court had previously determined that an officer may withdraw blood from an impaired driving suspect without a warrant if the facts of a particular case establish exigent circumstances. Missouri v.McNeely, 569 U.S. 141 (2013); Schmerber v. California, 384 U. S. 757, 765 (1966). While the natural dissipation of alcohol is insufficient by itself to create per se exigency in impaired driving cases, exigent circumstances may exist when that natural metabolic process is combined with other pressing police duties (such as the need to address issues resulting from a car accident) such that the further delay necessitated by a warrant application risks the destruction of evidence. The plurality reasoned that in impaired driving cases involving unconscious drivers, the need for a blood test is compelling and the officer’s duty to attend to more pressing needs involving health or safety (such as the need to transport an unconscious suspect to a hospital for treatment) may leave the officer no time to obtain a warrant. Thus, the plurality determined that when an officer has probable cause to believe a person has committed an impaired driving offense and the person’s unconsciousness or stupor requires him to be taken to the hospital before a breath test may be performed, the State may almost always order a warrantless blood test to measure the driver’s blood alcohol concentration without offending the Fourth Amendment. The plurality did not rule out that in an unusual case, a defendant could show that his or her blood would not have been withdrawn had the State not sought blood alcohol concentration information and that a warrant application would not have interfered with other pressing needs or duties. The plurality remanded the case because the petitioner had no opportunity to make such a showing.

Justice Thomas concurred in the judgment only, writing separately to advocate for overruling Missouri v. McNeely, 569 U.S. 141 (2013), in favor of a rule that the dissipation of alcohol creates an exigency in every impaired driving case that excuses the need for a warrant. 

Justice Sotomayer, joined by Justices Ginsburg and Kagan, dissented, reasoning that the Court already had established that there is no categorical exigency exception for blood draws in impaired driving cases, although exigent circumstances might justify a warrantless blood draw on the facts of a particular case. The dissent noted that in light of that precedent, Wisconsin’s primary argument was always that the petitioner consented to the blood draw through the State’s implied-consent law. Certiorari review was granted on the issue of whether this law provided an exception to the warrant requirement. The dissent criticized the plurality for resting its analysis on the issue of exigency, an issue it said Wisconsin had affirmatively waived.

Justice Gorsuch dissented by separate opinion, arguing that the Court had declined to answer the question presented, instead upholding Wisconsin’s implied consent law on an entirely different ground, namely the exigent circumstances doctrine. 

(1) The DMV’s findings support its conclusion that the officer had reasonable grounds to believe that Farrell was driving while impaired. During a traffic stop Farrell refused the officer’s request to take a breath test after being informed of his implied consent rights and the consequences of refusing to comply. Officers obtained his blood sample, revealing a blood alcohol level of .18. Because Farrell refused to submit to a breath test upon request, the DMV revoked his driving privileges. The Court of Appeals found that “DMV’s findings readily support its conclusion.” Among other things, Farrell had glassy, bloodshot eyes and slightly slurred speech; during the stop Farrell used enough mouthwash to create a strong odor detectable by the officer from outside car; and Farrell lied to the officer about using the mouthwash. The court held: “From these facts, a reasonable officer could conclude that Farrell was impaired and had attempted to conceal the alcohol on his breath by using mouthwash and then lying about having done so.” (2) Over a dissent, the court rejected Farrell’s argument that the State’s dismissal of his DWI charge barred the DMV from pursuing a drivers license revocation under the implied consent laws. This dismissal may have been based on a Fourth Amendment issue. The majority determined that even if Farrell’s Fourth Amendment rights were violated, the exclusionary rule would not apply to the DMV hearing. The dissent argued that the exclusionary rule should apply. A third judge wrote separately, finding that it was not necessary to reach the exclusionary rule issue.

The superior court erred by denying the State a de novo hearing from the district court’s preliminary determination that the defendant’s motion to suppress should be granted. At issue was whether G.S. 20-38.7(a) “requires more than a general objection by the State to the district court judge’s findings of fact or an assertion of new facts or evidence in order to demonstrate a ‘dispute about the findings of fact.’” The court held: “Neither the plain language of N.C. Gen. Stat. § 20-38.7(a) nor § 15A-1432(b) requires the State to set forth the specific findings of fact to which it objects in its notice of appeal to superior court.”

Following Fowler, discussed above, and dismissing as interlocutory the State’s appeal from a decision by the superior court indicating its agreement with the district court’s pretrial indication pursuant to G.S. 20-38.6(f).

Following Fowler, discussed above, and holding that G.S. 20-38.6(f) does not violate the defendant’s substantive due process, procedural due process or equal protection rights. Also finding no violation of the constitutional provision on separation of powers.

The state’s notice of appeal to superior court of the district court’s preliminary notice of its intention to grant the defendant’s motion to suppress in a DWI case was properly perfected. The court cited Fowler (discussed above), and noted that the procedures in G.S. 15A-1432(b) are a guide but not binding; an appeal must be taken and perfected within a reasonable time, which depends on the circumstances of each case. 

State v. Fowler, 197 N.C. App. 1 (May. 19, 2009)

A defendant, charged with DWI, made a pretrial motion in district court under G.S. 20-38.6(a) alleging that there was no probable cause for his arrest. The district court entered a preliminary finding granting the motion under G.S. 20-38.6(f) and ordering dismissal of the charge. When the state appealed to superior court under G.S. 20-38.7(a), that court found that the district court’s conclusions of law granting the motion to dismiss were based on findings of fact cited in its order. It also concluded that G.S. 20-38.6 and 20-38.7, which allow the state to appeal pretrial motions from district to superior court for DWI cases, violated various constitutional provisions. The superior court remanded to district court for the entry of an order consistent with the superior court’s findings. The state gave notice of appeal and filed a petition for a writ of certiorari to the North Carolina Court of Appeals. (1) The court ruled that the state did not have a right to appeal the superior court’s order to the court of appeals. The order was interlocutory and did not grant the defendant’s motion to dismiss. However, it granted the state’s petition for certiorari to review the issues. (2) The court rejected the defendant’s constitutional and other challenges to G.S. 20-38.6(a) (requires defendant to submit motion to suppress or dismiss pretrial), 20-38.6(f) (requires district court to enter written findings of fact and conclusions of law concerning defendant’s pretrial motion and prohibits court from entering final judgment granting the defendant’s pretrial motion until after state has opportunity to appeal to superior court), and 20-38.7(a) (allows state to appeal to superior court district court’s preliminary finding indicating it would grant defendant’s pretrial motion). (3) The court stated that the legislature’s intent was to grant the state a right to appeal to superior court only from a district court’s preliminary determination indicating that it would grant a defendant’s pretrial motion to suppress evidence or dismiss DWI charges which (i) is made and decided before jeopardy has attached (before the first witness is sworn for trial), and (ii) is entirely unrelated to the sufficiency of evidence concerning an element of the offense or the defendant’s guilt or innocence. The court opined that the legislature intended pretrial motions to suppress evidence or dismiss charges under G.S. 20-38.6(a) to address only procedural matters including, but not limited to, delays in the processing of a defendant, limitations on a defendant’s access to witnesses, and challenges to chemical test results. Separately, the court noted that G.S. 20-38.7(a) does not specify a time by which the state must appeal the district court’s preliminary finding to grant a motion to suppress or to dismiss. The court indicated that an appeal must be taken and perfected within a reasonable time, which depends on the circumstances of the case. (4) Based on the record, the court inferred that the district court not only considered whether the officer had probable cause to arrest the defendant but also preliminarily determined whether there was insufficient evidence for the state to proceed against the defendant for DWI (the court noted that a motion to dismiss for insufficiency of evidence cannot be made pretrial). Because there was no indication that the state had an opportunity to present its evidence, the superior court erred when it concluded that it appeared that the district court’s conclusions of law granting the motion to dismiss were based on findings of fact cited in the district court’s order. Accordingly, the court remanded to superior court with instructions to remand to district court for a final order granting the defendant’s motion to suppress evidence of his arrest for lack of probable cause. Only after the state has had an opportunity to establish a prima facie case may a motion to dismiss for insufficient evidence be made by the defendant and considered by the trial court, unless the state elects to dismiss the DWI charge. When the district court enters its final order on remand granting the defendant’s pretrial motion to suppress, the state will have no further right to appeal from that order.

On remand from the Supreme Court, __ N.C. __, 814 S.E.2d 39 (June 8, 2018), of this DWI case, the Court of Appeals declined to exercise its discretion to grant the defendant’s petition for a writ of certiorari to review her claim that the trial court erred by denying her motion to dismiss. The defendant’s motion to dismiss asserted that the State violated G.S. 20-38.4, G.S. 15A-534, and State v. Knoll, 322 N.C. 535 (1988), when the magistrate failed to provide her a written copy of form AOC-CR-271, advising of her right to have witnesses observe her demeanor in jail; and failed to enter sufficient findings of fact to show that the defendant was a danger to herself and others to justify imposing a secured bond pursuant to G.S. 15A-534. Dismissal of charges for violations of statutory rights is a drastic remedy which should be granted sparingly. Before a motion to dismiss should be granted it must appear that the statutory violation caused irreparable prejudice to the preparation of the defendant’s case.

     On the first issue, the State conceded that the magistrate did not comply with G.S. 20-38.4 in that the magistrate did not inform the defendant in writing of the established procedure to have others appear at the jail to observe her condition and failed to require her to list all persons she wanted to contact and telephone numbers on the relevant form. However, the State argued that the defendant could not demonstrate irreparable prejudice to the preparation of her case because the magistrate orally informed the defendant of her right to have witnesses present to observe her condition. In denying the motion to dismiss, the trial court found that the magistrate told the defendant of her right to have individuals come to the detention center to observe her condition and that once she was placed in the detention center, the defendant was allowed to make phone calls to several identified people. These findings are supported by competent evidence.

     With respect to the defendant’s argument that the magistrate violated G.S. 15A-534, the magistrate testified that he considered the defendant’s condition in deciding whether to impose a secured bond and initially entered his reasons on his computer for imposing a secured bond into the “FINDINGS” section of form AOC-CR-270. However, he accidently deleted his reasons listed on form AOC-CR-270 and they were replaced with the text and finding of “BLOOD TEST.” Competent evidence supports the trial court’s findings that the magistrate considered the factors in G.S. 15A-534 in setting the defendant’s bond, and found by clear, cogent, and convincing evidence that the defendant’s physical or mental faculties were impaired and that she was a danger to herself, others or property if released.

     The defendant failed to show that she was denied access to witnesses, her right to have witnesses observe her condition, or her right to collect evidence and did not demonstrate irreparable prejudice to the preparation of her case by the magistrate’s statutory violations and failures to provide her with a copy of form AOC-CR-271 or to make additional factual findings to justify imposing a secured bond under G.S. 15A-534. The court noted that the defendant was informed of her right to have witnesses observe her and had the means and was provided the opportunity to contact potential witnesses. Additionally, the magistrate’s detention order required the defendant to remain in custody for a twelve-hour period or until released into the custody of a sober, responsible adult. In fact, the defendant was released into the custody of a sober acquaintance after spending only two hours and fifty-three minutes in jail.

     The court went on to reject the defendant’s argument that she was per se prejudiced by the magistrate’s statutory violations, pursuant to State v. Hill, 277 N.C. 547 (1971). Distinguishing Hill the court noted that no evidence in the record suggests the State took affirmative steps to deprive the defendant of any access to potential witnesses or an attorney, such as by preventing them from talking to the defendant or entering the jail to observe her. It continued: “Unlike the defendant in Hill, Defendant was told of her right to have observers present, was not limited to one phone call following her arrest, was allowed and did make numerous calls to multiple individuals and was released to a sober adult within less than three hours. Additionally, the Supreme Court later acknowledged in Knoll that the per se prejudice rule stated in Hill is no longer applicable.”

     Ultimately the court found that the defendant’s arguments failed to demonstrate “irreparable prejudice to the preparation of defendant’s case” and that that she did not raise any “good and sufficient cause” to support the court’s exercise of its discretion to grant her petition and issue the writ of certiorari.

The trial court properly denied the defendant’s Knoll motion, in which the defendant argued that he was denied his right to communicate with counsel and friends. The defendant had several opportunities to call counsel and friends to observe him and help him obtain an independent chemical analysis, but the defendant failed to do so. In fact, the defendant asked that his wife be called, but only to tell her that he had been arrested. Thus, the defendant was not denied his rights under Knoll.

In this DWI case, the trial court did not err by denying the defendant’s Knoll motion. The defendant argued that the magistrate violated his rights to a timely pretrial release by setting a $500 bond and holding him in jail for approximately three hours and 50 minutes. The court found that evidence supported the conclusion that the magistrate properly informed the defendant of his rights and that the magistrate properly considered all of the evidence when setting the $500 bond.

Over a dissent, the court held that the trial court did not err by denying the defendant’s Knoll motion in an impaired driving case in which the defendant was detained for almost 24 hours. The court upheld the trial court’s finding that an individual who appeared to take responsibility for the defendant was not a sober responsible adult; a police officer smelled alcohol on the individual’s breath and the individual indicated that he had been drinking. The only statutory violation alleged was a failure to release to a sober, responsible adult, but the individual who appeared was not a sober, responsible adult. The trial court’s conclusions that no violation occurred or alternatively that the defendant failed to show irreparable prejudice was supported by the evidence. The defendant was advised that she could request an attorney or other witness to observe her Intoxilyzer test but she declined to request a witness. Also, the individual who appeared was allowed to see the defendant within 25 minutes of her exiting the magistrate’s office, to meet personally with the defendant, and to talk with and observe the defendant for approximately eight minutes. 

 

For the reasons stated in the dissenting opinion below, the court reversed State v. McKenzie, 225 N.C. App. 208 (Jan. 15, 2013), which had held, over a dissent, that prosecuting the defendant for DWI violated double jeopardy where the defendant previously was subjected to a one-year disqualification of his commercial driver’s license under G.S. 20-17.4.

Lee v. Gore, 365 N.C. 227 (Aug. 26, 2011)

Affirming a divided decision below, Lee v. Gore, 206 N.C. App. 374 (Aug. 17, 2010), the court held that the Division of Motor Vehicles (DMV) may not revoke driving privileges for a willful refusal to submit to chemical analysis absent receipt of an affidavit swearing that the refusal was indeed willful. The court reasoned that because G.S. 20-16.2(d) requires that the DMV first receive a “properly executed affidavit” from law enforcement swearing to a willful refusal to submit to chemical analysis before revoking driving privileges, DMV lacked the authority to revoke the petitioner’s driving privileges. In this case, the officer swore out the DHHS 3907 affidavit and attached to that affidavit the DHHS 3908 chemical analysis result form indicating the test was “refused.” However, neither document indicated that the petitioner’s refusal to participate in chemical analysis was willful.

In this license revocation case arising from a DWI charge, the court concluded that the DMV did not have jurisdiction to revoke the petitioner’s drivers license because the affidavit submitted to the DMV showed that the arresting officer designated a blood test but that the petitioner refused a breath test.  Quoting extensively from Lee v. Gore, 365 N.C. 227 (2011) and emphasizing the DMV’s “limited authority” to suspend a driver’s license, the court explained that because the Affidavit and Revocation Report of Law Enforcement Officer form (DHHS 3907) filed in this case “states that [the officer] designated one type of test and the petitioner refused another type of test,” it did not evidence a willful refusal under G.S. 20-16.2 – a necessary condition precedent under these circumstances to the DMV’s exercise of jurisdiction to revoke the petitioner’s license.

Hoots v. Robertson, 214 N.C. App. 181 (Aug. 2, 2011)

The trial court erred by determining that a clerical error on a law enforcement officer’s affidavit under G.S. 20-16.2(d) divests the DMV of its authority to suspend the driving privileges of a person who has willfully refused to submit to a chemical analysis when charged with an implied consent offense where the error does not involve an element of the offense of willful refusal. The clerical error involved listing the time of refusal as 3:45 am instead of 3:47 am.

(1) In an appeal of a driver’s license revocation under G.S. 20-16.2(e), the court declined to consider the defendant’s argument that the officer lacked reasonable and articulable suspicion to stop his vehicle. Reasonable and articulable suspicion for the stop is not relevant to determinations in connection with a license revocation; the only inquiry with respect to the officer, the court explained, is that he or she have reasonable grounds to believe that the person has committed an implied consent offense. Here, the evidence supported that conclusion. (2) The exclusionary rule does not apply in a civil license revocation proceeding.

The trial court did not err by denying the defendant’s motion to suppress in this DWI case. The defendant had argued that the arresting officer failed to comply with the requirements of G.S. 20-16.2. Specifically, the defendant asserted that he was not adequately informed of his rights under the statute due to the fact that English is not his first language and that the officer’s failure to ensure that these rights were communicated to him in his native language of Burmese resulted in violation of the statute. The court held that State v. Martinez, __ N.C. App. __, 781 S.E.2d 346 (2016) (holding that the admissibility of the results of a chemical analysis test are not conditioned on a defendant’s subjective understanding of the information disclosed to him pursuant to the requirements of G.S. 20-16.2(a)), was controlling. It held: “as long as the rights delineated under N.C. Gen. Stat. § 20-16.2(a) are disclosed to a defendant — which occurred in the present case — the requirements of the statute are satisfied and it is immaterial whether the defendant comprehends them.”

The trial court properly denied the defendant’s motion to suppress the results of the chemical analysis of his breath. The defendant argued that the officer failed to comply with the statutory requirement of a 15 minute “observation period” prior to the administration of the test. The observation period requirement ensures that “a chemical analyst observes the person or persons to be tested to determine that the person or persons has not ingested alcohol or other fluids, regurgitated, vomited, eaten, or smoked in the 15 minutes immediately prior to the collection of a breath specimen.” However, that “nothing in the relevant regulatory language requires the analyst to stare at the person to be tested in an unwavering manner for a fifteen minute period prior to the administration of the test.” Here, the officer observed the defendant for 21 minutes, during which the defendant did not ingest alcohol or other fluids, regurgitate, vomit, eat, or smoke; during this time the officer lost direct sight of the defendant only for very brief intervals while attempting to ensure that his right to the presence of a witness was adequately protected. As such, the officer complied with the observation period requirement.

The trial court erred by denying the defendant’s motion to suppress intoxilyzer results. After arrest, the defendant was informed of his rights under G.S. 20-16.2(a) and elected to have a witness present. The defendant contacted his witness by phone and asked her to witness the intoxilyzer test. Shortly thereafter his witness arrived in the lobby of the County Public Safety Center; when she informed the front desk officer why she was there, she was told to wait in the lobby. The witness asked the front desk officer multiple times if she needed to do anything further. When the intoxilyzer test was administered, the witness was waiting in the lobby. Finding the case indistinguishable from State v. Hatley, 190 N.C. App. 639 (2008), the court held that after her timely arrival, the defendant’s witness made reasonable efforts to gain access to the defendant but was prevented from doing so and that therefore the intoxilyzer results should have been suppressed. 

Steinkrause v. Tatum, 201 N.C. App. 289 (Dec. 8, 2009) aff’d, 364 N.C. 419 (Oct 8 2010)

On the facts, the trial judge did not err in concluding that the petitioner willfully refused to submit to a breath test.

(1) After accepting a defendant’s guilty plea to DWI, the district court had no authority to arrest judgment. (2) Once the defendant appealed to superior court from the district court’s judgment for a trial de novo, the superior court obtained jurisdiction over the charge and the superior court judge erred by dismissing the charge based on alleged non-jurisdictional defects in the district court proceedings.

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