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., 02/11/2025
E.g., 02/11/2025

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 Pitt County case, defendant appealed his convictions for driving while impaired and speeding, arguing several errors including (1) admitting evidence of the speed results of the radar, (2) admitting video evidence of the advisement of his Miranda rights, (3) denying his motion to suppress, and (4) admitting evidence of the Intoxilyzer EC/IR II breath test result. The Court of Appeals found no error in (1)-(3), but because the State did not lay the proper foundation in (4), defendant was granted a new trial.

In June of 2019, defendant was pulled over late at night for speeding. The officer smelled the odor of alcohol on defendant, and defendant admitted he had consumed an alcoholic drink before driving. The officer asked defendant to get out of the vehicle and conducted HGN and VGN tests, as well as a portable breath test. Based on his admission of drinking and the officer’s observations, defendant was arrested, read his Miranda rights, and taken to the detention center for an Intoxilyzer EC/IR II breath test. When defendant reached trial, video of the stop and evidence of the breath test results were admitted over defendant’s objections.

Beginning with (1), defendant argued error because “the State failed to elicit the exact name of the agency that approved the radar model, issued the operator’s certificate, and inspected the device.” Slip Op at 5. The Court of Appeals first noted that the North Carolina Criminal Justice Education and Training Standards Commission certified and approved the use of radar and other speed-measuring instruments, and then rejected defendant’s argument that the officer was required to specifically identify the commission’s training and approval when testifying. The court explained that “there is no essential talismanic phrase” and “when the witness provides sufficiently specific testimony permitting the trial court to logically conclude compliance” there is no error in admitting the testimony. Id. at 10.

Moving to (2), defendant argued that admitting video of the advisement of his Miranda rights violated his Fifth Amendment rights. The court noted that the video was admitted to show professionalism and proper procedures after defense counsel questioned portions of the field sobriety test, and that the video was cut off immediately after advisement of the rights. Establishing that “nothing in our precedents indicates that the admission of the reading of Miranda rights, standing alone, constitutes error,” the court concluded that the State did not use the video to use defendant’s silence against him and that admission of the video was not error. Id. at 12.

Reaching (3), the court first explored the HGN test administration. Defendant argued the test was inadmissible because the officer did not follow the NHTSA Manual’s administration instructions. The court found no error, looking to the questioning by the State and the actual requirements of the manual and finding no issues. The court then considered whether the totality of the circumstances supported probable cause for arrest, concluding “the trial court’s order detailed sufficient findings to support the trooper’s reasonable belief that Defendant consumed alcohol, drove in a faulty manner, and displayed other indicia of impairment.” Id. at 17. The court also found no error in allowing video of a portable breath test even though the results were excluded from evidence, as the trial court instructed the jury to only consider the video for defendant’s “demeanor and behavior.” Id. at 18.  

Finally in (4), the court concluded it was error to allow the State to introduce evidence of defendant’s Intoxilyzer breath test without showing the two consecutively collected breath samples complied with the applicable rules for administering the test. While the State elicited testimony from the officer about the breath test procedures, the record did not show compliance with the applicable North Carolina DHHS rules found in the N.C. Administrative Code. The court explained that “noticeably absent from the record is any evidence from which the trial court could have gleaned the foundational requirement that the two consecutively collected breath samples do not differ from each other by an alcohol concentration greater than 0.02.” Id. at 20-21. The court observed that “[t]estimony simply noting the test is performed in accordance with the rules of DHHS could have met this requirement; yet the record is completely devoid of such evidence.” Id. at 21. Because the record lacked this evidence, the breath test lacked proper foundation and admitting it was error. The State argued that whiting out the second test result was done at defendant’s request and that this represented invited error. The court disagreed, explaining that nothing in the record showed the trial court’s knowledge of the second test or that it complied with DHHS requirements, meaning “the State simply did not meet the minimal requirements of [G.S.] 20-139.1(b).” Id. at 22. 

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.

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