Smith's Criminal Case Compendium
Smith's Criminal Case Compendium
Table of Contents
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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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 Buncombe County case, defendant appealed his convictions for driving while impaired, arguing error in denying his motion to exclude an Intoximeter chemical analysis as well as his subsequent objections to the admission of the analysis at trial. The Court of Appeals majority found error as the officer performing the analysis did not conduct an observation period after ordering defendant to remove gum from his mouth, but did not find that defendant was prejudiced by the error, upholding his conviction.
In March of 2021, an Asheville police officer observed defendant roll through a stop sign. The officer pulled over defendant, and observed the smell of alcohol, glassy eyes, and slurred speech. The office conducted field sobriety tests, determining that defendant was likely intoxicated. After defendant was arrested and taken to the Buncombe County Jail, a certified chemical analyst conducted a 15-minute observation period of defendant, followed by an Intoximeter breath analysis. After this first breath test, the analyst noted that defendant had gum in his mouth and had him spit it out, then conducted a second breath test two minutes after the first. Both tests resulted in 0.11 BAC readings. Both parties offered expert testimony about the possible effects of the gum, but no studies were admitted using the type of Intoximeter in question, and no evidence established the type of gum defendant had in his mouth at the time of the test.
Taking up defendant’s argument, the Court of Appeals first explained that G.S. 20-139.1(b)(1) makes breath tests admissible if they are “performed in accordance with the rules of the Department of Health and Human Services.” Slip Op. at 8. The applicable rules are found in 10A NCAC 41B.0101, which requires an observation period to ensure the person being tested does not ingest alcohol, vomit, or eat or drink other substances. The State argued that chewing gum did not represent “eating” for purposes of the rules, a position the court’s opinion rejected:
In sum, we believe the intent of both the legislature and DHHS in the provisions pertinent here is clear: to ensure that the chemical analysis of a subject’s breath is accurate in measuring BAC and not tainted by the presence of substances in the mouth during testing. And in our view, to adopt the State’s position that the observation period requirement is not violated when a subject “chews” something during the period would lead to absurd results and have bizarre consequences because it would mean, for example, that a subject could engage in the following activities not listed in 10A NCAC 41B.0106(6) moments before the taking of breath samples: chewing gum—presumably including nicotine gum—or tobacco or food that is spit out before swallowing, dipping snuff, sucking on a medicated throat lozenge or a hard candy, using an inhaler, and swallowing a pill.
Id. at 13. Despite finding that the test was improperly admitted, the court did not see prejudice for defendant, noting the overwhelming evidence of defendant’s performance on the field sobriety tests, his glassy eyes and slurred speech, and the smell of alcohol observed by the officer.
Judge Arrowood concurred in the result only.
Judge Wood concurred in the result only by separate opinion, and also would have held that the admission of the breath test results was not error. Id. at 19.
In this Edgecombe County case, defendant appealed his convictions for second-degree murder and aggravated serious injury by vehicle, arguing error in the denial of his motion to suppress a warrantless blood draw and motion to dismiss for insufficient evidence. The Court of Appeals found no error and affirmed.
In June of 2015, defendant crossed the centerline of a highway and hit another vehicle head on, causing the death of one passenger. Officers responding to the scene interviewed defendant, and noted his responses seemed impaired and the presence of beer cans in his vehicle. A blood draw was performed at the hospital, although the officer ordering the draw did not read defendant his Chapter 20 implied consent rights or obtain a search warrant before the draw. The results of defendant’s blood draw showed a benzodiazepine, a cocaine metabolite, two anti-depressants, an aerosol propellant, and a blood-alcohol level of 0.02.
Reviewing defendant’s argument that no exigent circumstances supported the warrantless draw of his blood, the Court of Appeals first noted that defense counsel failed to object to the admission of the drug analysis performed on defendant’s blood, meaning his arguments regarding that exhibit were overruled. The court then turned to the exigent circumstances exception to justify the warrantless search, noting that the investigation of the scene took significant time and defendant was not taken to the hospital until an hour and forty-five minutes afterwards. Acknowledging Supreme Court precedent “that the natural dissipation of alcohol in the bloodstream cannot, standing alone, create an exigency in a case of alleged impaired driving sufficient to justify conducting a blood test without a warrant,” the court looked for additional justification in the current case. Slip Op. at 11. Here the court found such justification in the shift change occurring that would prevent the officer from having assistance, and the delay in going to obtain a warrant from the magistrate’s office that would add an additional hour to the process. These circumstances supported the trial court’s finding of exigent circumstances.
The court then turned to defendant’s argument that insufficient evidence was admitted to establish he was impaired at the time of the accident. The record contained evidence that defendant had beer cans in his truck along with an aerosol can of Ultra Duster, and several witnesses testified as to defendant’s demeanor and speech after the accident. The record also contained a blood analysis showing defendant had five separate impairing substances in his system at the time of the accident, “alcohol, benzyl ethylene (a cocaine metabolite), Diazepam (a benzodiazepine such as Valium), Citalopram (an anti-depressant) and Sertraline (another anti-depressant called “Zoloft”).” Id. at 16. The court found that based on this evidence there was sufficient support for denying defendant’s motion.
The defendant was convicted of driving while impaired and appealed. He argued that the trial court erred by denying his motion to suppress evidence gathered following his arrest on the basis that his arrest was not supported by probable cause. The Court of Appeals found no error.
(1) The Highway Patrol trooper who arrested the defendant testified about his training in the administration of the horizontal gaze nystagmus test (HGN) for the detection of impairment and the interpretation of the results on the test. He testified about performing the HGN test on the defendant and his observation of all six indications of impairment.
The defendant argued on appeal that the rules of evidence applied to the suppression hearing and the trial court erred by permitting the trooper to testify as an expert witness on HGN because he was not qualified under Rule 702. The Court of Appeals rejected the defendant’s argument, citing Rules 104(a) and 1101(b)(1), which explicitly state that the evidence rules do not apply to the determination of preliminary questions concerning the admissibility of evidence—the very issues presented in a hearing on a motion to suppress. The Court further held that the trooper’s testimony regarding the HGN test was relevant to the determination of probable cause and the trial court did not abuse its discretion by considering this evidence.
(2) The defendant argued that several findings of fact were not supported by the evidence. The Court rejected the defendant’s argument, as to all but one objected-to finding. The trial court’s finding that the trooper noted a strong odor of alcohol on the defendant’s person was supported by the trooper’s testimony and the affidavit and revocation report he prepared. The finding that the defendant “deceptively denied” consuming alcohol was supported by the trooper’s testimony that the defendant denied having anything to drink as contrasted with the evidence that the defendant had consumed alcohol. The finding that the alcosensor was in proper working order and properly calibrated was supported by the trooper’s testimony. The finding that the trooper formed an opinion that the defendant was appreciably impaired was supported by the trooper’s testimony that the defendant was impaired; the trooper’s omission of the modifier “appreciably” was “a mere slip of the tongue.” (Slip op at ¶ 19.) And the trial court’s findings regarding the HGN test were supported by competent evidence.
The Court did not find evidentiary support for the finding that no other field tests were performed as a result of potential dangers from traffic.
The Court determined that the findings supported the trial court’s conclusion that the trooper had probable cause to arrest the defendant. Specifically, the Court pointed to the strong odor of alcohol, the positive alcosensor tests, and the HGN test revealing all six indications of impairment.
Although the trial court erred by admitting evidence of the numerical result of an Alco-sensor test during a pretrial hearing on the defendant’s motion to suppress, a new trial was not warranted. The numerical results were admitted only in the pre-trial hearing, not at trial and even without the numerical result, the State presented sufficient evidence to defeat the suppression motion.
The trial court did not err by denying the defendant’s motion to suppress the results of the chemical analysis performed on the defendant’s breath with the Intoxilyzer 5000 on grounds that preventative maintenance was not performed on the machine at least every 4 months as required by the Department of Health and Human Services. Preventive maintenance was performed on July 14, 2006 and December 5, 2006. The court concluded that although the defendant’s argument might have had merit if the chemical analysis had occurred after November 14, 2006 (4 months after the July maintenance) and before December 5, 2006, it failed because the analysis at issue was done only 23 days after the December maintenance.