On today’s episode of the podcast Jake looks back at the most influential North Carolina DWI cases of the past year. Abstracts of the cases are found below. CHECKPOINTS State v. Alvarez, 894 S.E.2d 737, No. 278PA21 (N.C. 2023) Facts: Rowan County Sheriff’s Office set up a checkpoint. The checkpoint was purportedly in response to a high-speed fatality accident that had occurred at that location two days earlier. No officers on scene were checking speeding. Defendant’s passenger side wheels came off the road and onto the grass prior to stopping at the checkpoint. One of the officers on scene testified that this behavior led him to believe the Defendant might be driving while impaired. Procedural History: Both the trial court (superior court) and the Court of Appeals (State v. Alvarez, 860 S.E.2d 45, 2021-NCCOA-375 (2021) (unpublished) found the checkpoint did not have a proper primary programmatic purpose. The Court of Appeals appears to call into question a checkpoint set up for “all chapter 20 violations” as possible general crime control. Holding: The Supreme Court reversed the Court of Appeals finding that there was reasonable suspicion to stop the vehicle due to the lane violation but did not address the findings of the Court of Appeals regarding the Constitutionality of the checkpoint. Use the Court of Appeals opinion to attack a checkpoint based on the lack of a proper primary programmatic purpose. REASONABLE SUSPICION Sate v. Peak, 892 S.E.2d 925, No. COA23-312 (N.C. App. 2023) (unpublished) Facts: Stopping officer was highly specialized in DWI investigations. Defendant delayed for 10-seconds at a traffic light after it turned green. There were two open bars within a quarter mile radius of the stop location. Defendant crossed over the yellow lines with both left tires into the opposite lane of travel. Defendant was travelling at one to two miles per hour. Holding: Reasonable suspicion existed to stop Defendant. PROBABLE CAUSE State v. Woolard, 894 S.E.2d 717, No. 208PA22 (N.C. 2023) Facts: Officer saw Defendant cross centerline six or seven times. Officer active blue lights and Defendant quickly stopped his vehicle. Upon initial approach, Defendant “seemed normal” to the officer. After asking about the driving, Defendant told the officer that there were bees in his truck that he was trying to get out. As they spoke, the officer noticed an odor of alcohol, flushed cheeks, and red and glassy eyes. Defendant seemed coherent to the officer. Defendant admitted to having “a couple beers earlier.” Officer administered two PBTs, but these were excluded from consideration because they were not performed correctly. Officer also administered the HGN test, during which he saw six of six clues. Officer placed Defendant under arrest for DWI. Procedural History: Defendant was granted a preliminary indication that no PC existed in District Court. The State appealed to Superior Court where the Defendant again prevailed and the case was sent back to District Court for a final order granting suppression. After the District Court entered its final order the State filed a petition for writ of certiorari to the Court of Appeals which was denied. The State then filed a petition for writ of certiorari to the North Carolina Supreme Court which was granted. There was no transcript of District Court proceedings or record on appeal for the Supreme Court to review. Holding: The Supreme Court found it had discretionary authority to rule on the merits of the case and found probable cause. EXPERT TESTIMONY State v. Williams, 891 S.E.2d 499, No. COA22-1015 (N.C. App. 2023) (unpublished). Holding: It was not error for the trial court to allow a DRE to offer testimony about a DWI investigation that the DRE was not involved in, when the DRE stated that she could not testify (i.e. give an opinion) as to whether the Defendant was impaired. Practice Tip: This case is from Buncombe County, where the State routinely calls a DRE that has not done a real time DRE evaluation in a particular case to give after-the-fact analysis and opinion at trial. Here’s the beef: There is no opinion being offered by investigating officers [State v. Lewis, 2022-NCCOA-887 (2022)] or by the DRE that the Defendant is impaired. Point out that no officer involved in the investigation or brought in as an expert to bolster the State’s case can give an opinion of drug impairment. BREATH TEST State v. Forney, No. COA23-338 (N.C. App. 2024) Facts: During chemical breath testing, the officer noticed Defendant had gum in his mouth, and had Defendant spit out the gum between the first and second breath tests, both of which resulted in a .11 BAC. The chemical analyst did not restart the observation period or seek an additional breath test. Both the State and the Defendant had experts testify at trial on whether breath testing might be impacted by foreign objects in the mouth. ...
