Monday, November 30, 2015

Field Sobriety Test

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Great article on Field Sobriety Test by Shea Denning at NC School of Government.

ost drivers stopped on suspicion of impaired driving are asked to submit to field sobriety tests before they are arrested.  Those tests often include the three standardized tests, which researchers have found to enhance officers’ ability to accurately identify impairment:  the one-leg stand, the walk-and-turn, and the horizontal gaze nystagmus tests. Officers sometimes use other types of field tests that have not been validated, such as asking participants to recite the alphabet or to conduct counting exercises. Evidence gained from any of these pre-arrest tests may be admitted against the defendant at trial without running afoul of the Fifth Amendment right to be free from self-incrimination.  That’s because suspects aren’t in custody for purposes of the Fifth Amendment or Miranda v. Arizona, 384 U.S. 436 (1966) when they are temporarily detained for a traffic stop and are asked a moderate number of stop-related questions. Berkemer v. McCarty, 468 U.S. 420, 440 (1984); State v. Braswell, 222 N.C. App. 176 (2012). But what if the suspect is asked to perform field sobriety tests after he is arrested?  Must he first be provided Miranda warnings?
Generally no.
Why?  Because the evidence gathered usually is physical rather than testimonial or communicative in nature.
Case in point. In Pennsylvania v. Muniz, 496 U.S. 582 (1990), the United States Supreme Court considered whether a trial court erred in admitting a videotape of the defendant filmed after his arrest on impaired driving charges but before he was given Miranda warnings. The videotape included footage of the defendant answering questions at the booking center, including:  “[W]hen you turned six years old, do you remember what the date was?” The defendant responded, “No, I don’t.” The videotape also showed the defendant performing the three standardized field sobriety tests and captured the statements he made during those tests.
The trial court admitted the videotape and subsequently rejected Muniz’s motion for a new trial based on the tape’s admission. The superior court reversed.  Though it agreed that no Miranda warnings were required before Muniz was asked to submit to a field sobriety test because such tests elicit physical rather than testimonial evidence, the court held that when the tests begin to yield communicative statements, Miranda is implicated.  Thus, the superior court concluded that Muniz’s answer to the question regarding his sixth birthday and the statements and inquiries he made while performing the physical tests were testimonial.  The United States Supreme Court granted certiorari.
Answers to questions at booking. The Supreme Court first considered whether Muniz’s answers to the questions posed at the booking center were testimonial, explaining that if they were, they should have been suppressed since Muniz was not advised of his Miranda rights until after the videotaped proceedings concluded. A majority of the court concluded that Muniz’s answers to questions regarding his name, address, height, weight, eye color, date of birth, and current age did not constitute custodial interrogation, though they disagreed as to why.  Four justices relied on an exception for routine booking questions, while another four held that the statements were not testimonial.  Five justices agreed that the sixth birthday question required a testimonial response, as it left Muniz with the “choice of incriminating himself by admitting that he did not then know the date of his sixth birthday, or answering untruthfully by reporting a date that he did not then believe to be accurate.”  Id. at 599. The court explained that the incriminating inference of impaired mental faculties stemmed not simply from the fact that Muniz slurred his response (which provided physical rather than testimonial evidence of impairment) but also from the testimonial aspect of the response, which revealed Muniz’s mental confusion.
Videotape of field sobriety tests. The Supreme Court quickly disposed of Muniz’s argument that the videotape of the field sobriety tests, which included Muniz’s verbal statements, should have been suppressed. Noting that the officer’s dialog with Muniz concerning the sobriety tests “consisted primarily of carefully scripted instructions as to how the tests were to be performed,” the court determined that the “instructions were not likely to be perceived as calling for any verbal response and therefore were not ‘words or actions’ constituting custodial interrogation.” Id. at 603. Thus, the court concluded that “Muniz’s incriminating utterances during this phase of the videotaped proceedings were ‘voluntary’ in the sense that they were not elicited in response to custodial interrogation.” Id. at 604.
What about alphabet and counting tests?  Several courts have considered post-Muniz whether non-standardized field sobriety tests that require verbal responses implicate the privilege against self-incrimination. Most have included that such responses are not testimonial; thus no Miranda warnings are required before they are administered.  The Supreme Judicial Court of Massachusetts, Suffolk, explained in Vanhouten v. Commonwealth, 676 N.E.2d 460 (Mass. 1997), that because the alphabet cannot be “fabricated or guessed at” a person reciting it is “not faced with the dilemma of deciding between a true of false answer.” Id. at 466.  “As such,” the court explained, “the recitation of the alphabet lacks inherent communicative value because it does not convey knowledge of any fact specific to the person being questioned.” Id. (citing cases from ten other states reaching the same conclusion with respect to alphabet recitation and counting exercises). The Supreme Court of Florida, however, concluded in Allred v. State, 622 So.2d 984 (Fla. 1993), that suspects who were asked to recite the alphabet from “c” to “w” and to count from 1001 to 1030 were being interrogated as “a reasonable person would conclude that the request to recite, out of the ordinary sequence, letters and numbers was designed to lead to an incriminating response.” Id. at 987.

Wednesday, November 25, 2015

Grapes over Safety

Turns out that the push to site truckers for napping on the side of the road is more about helping a donor.

Ticket-writing was focused in Surry County, home of donor Charlie Shelton’s vineyard
Shelton brothers, family and company executives donated $32,000 to McCrory’s last campaign
One trucker was awakened by troopers twice in the same night

Read more here:

Wednesday, November 18, 2015

Sleeping on Side of Road in North Carolina

Turns out that driver safety is really not that big of a concern in NC. 

Wednesday, November 4, 2015

North Carolina DWI Grossly Aggravating Factors

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The following are Grossly Aggravating Factors for DWI sentencing.

Determining Existence of Grossly Aggravating Factors. - At the sentencing hearing, based upon the evidence presented at trial and in the hearing, the judge, or the jury in superior court, must first determine whether there are any grossly aggravating factors in the case. Whether a prior conviction exists under subdivision (1) of this subsection, or whether a conviction exists under subdivision (d)(5) of this section, shall be matters to be determined by the judge, and not the jury, in district or superior court. If the sentencing hearing is for a case remanded back to district court from superior court, the judge shall determine whether the defendant has been convicted of any offense that was not considered at the initial sentencing hearing and impose the appropriate sentence under this section. The judge must impose the Aggravated Level One punishment under subsection (f3) of this section if it is determined that three or more grossly aggravating factors apply. The judge must impose the Level One punishment under subsection (g) of this section if it is determined that the grossly aggravating factor in subdivision (4) of this subsection applies or two of the other grossly aggravating factors apply. If the judge does not find that the aggravating factor at subdivision (4) of this subsection applies, then the judge must impose the Level Two punishment under subsection (h) of this section if it is determined that only one of the other grossly aggravating factors applies. The grossly aggravating factors are:
(1)        A prior conviction for an offense involving impaired driving if:
a.         The conviction occurred within seven years before the date of the offense for which the defendant is being sentenced; or
b.         The conviction occurs after the date of the offense for which the defendant is presently being sentenced, but prior to or contemporaneously with the present sentencing; or
c.         The conviction occurred in district court; the case was appealed to superior court; the appeal has been withdrawn, or the case has been remanded back to district court; and a new sentencing hearing has not been held pursuant to G.S. 20-38.7.
Each prior conviction is a separate grossly aggravating factor.
(2)        Driving by the defendant at the time of the offense while his driver's license was revoked under G.S. 20-28, and the revocation was an impaired driving revocation under G.S. 20-28.2(a).
(3)        Serious injury to another person caused by the defendant's impaired driving at the time of the offense.
(4)        Driving by the defendant while (i) a child under the age of 18 years, (ii) a person with the mental development of a child under the age of 18 years, or (iii) a person with a physical disability preventing unaided exit from the vehicle was in the vehicle at the time of the offense.
In imposing an Aggravated Level One, a Level One, or a Level Two punishment, the judge may consider the aggravating and mitigating factors in subsections (d) and (e) in determining the appropriate sentence. If there are no grossly aggravating factors in the case, the judge must weigh all aggravating and mitigating factors and impose punishment as required by subsection (f).

  Weighing the Aggravating and Mitigating Factors. - If the judge or the jury in the sentencing hearing determines that there are no grossly aggravating factors, the judge shall weigh all aggravating and mitigating factors listed in subsections (d) and (e). If the judge determines that:
(1)        The aggravating factors substantially outweigh any mitigating factors, the judge shall note in the judgment the factors found and his finding that the defendant is subject to the Level Three punishment and impose a punishment within the limits defined in subsection (i).
(2)        There are no aggravating and mitigating factors, or that aggravating factors are substantially counterbalanced by mitigating factors, the judge shall note in the judgment any factors found and the finding that the defendant is subject to the Level Four punishment and impose a punishment within the limits defined in subsection (j).
(3)        The mitigating factors substantially outweigh any aggravating factors, the judge shall note in the judgment the factors found and his finding that the defendant is subject to the Level Five punishment and impose a punishment within the limits defined in subsection (k).