Tuesday, April 19, 2016

Is HGN enough to Arrest for DWI

Image result for hgn


I have a case scheduled for trial this week in Wake County.  The only portion of the Field Sobriety Test my client failed was the HGN test where he had 4 of 6 clues.  He did great on all other parts of the test.  The question is whether or not this sole factor is sufficient to create probable cause to arrest.  Below is the relevant case law.

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

                                NO. COA14-269
                       NORTH CAROLINA COURT OF APPEALS

                              Filed:    6 January 2015


      v.                                      Durham County
                                              No. 12 CRS 61669

      Appeal by the State from order entered 3 October 2013 by

Judge Carl R. Fox in Durham County Superior Court.                  Heard in the

Court of Appeals 27 August 2014.

      Attorney General Roy Cooper, by Assistant Attorney General
      Joseph L. Hyde, for the State.

      Kimberly P. Hoppin, for defendant-appellee.

      CALABRIA, Judge.

      The State appeals, pursuant to N.C. Gen. Stat. § 15A-979

and § 15A-1445,        from an order granting Margaret K. Sewell’s

(“defendant”)      motion    to   suppress    evidence     gathered      after   her

arrest     and   dismissing    the     offense   of   driving    while    impaired

(“DWI”).     We affirm in part and reverse in part.

                                  I. Background

      On the evening of 16 November 2012, the North Carolina
State     Highway   Patrol       (“NCSHP”)     conducted       a     checkpoint     on

University Drive at the entrance to Forest Hills Park in Durham,

North Carolina.         The checkpoint’s primary purpose was to check

for DWI offenses.          Sergeant Maurice Devalle (“Sgt. Devalle”)

supervised the checkpoint, which was conducted pursuant to a

written authorization form and NCSHP policy.                    In addition, the

checkpoint was marked by patrol vehicles with their blue lights

activated,     troopers        participating       in   the        checkpoint      wore

reflective     vests     and    held   flashlights,      and       every    car    that

approached the checkpoint was checked.

    Shortly      after    midnight     on    17    November     2012,      defendant,

driving    a   Toyota    sport    utility    vehicle     with       one    passenger,

approached the checkpoint.             When NCSHP Trooper Jeremy Doston

(“Trooper      Doston”)         requested         defendant’s        license        and

registration, he detected a strong odor of alcohol emanating

from defendant’s vehicle.          Although Trooper Doston observed that

defendant’s     eyes     were    red   and   glassy,     her       speech    was    not

slurred, and she retrieved her license and registration without

difficulty.      Defendant initially denied drinking alcohol that

evening, but later admitted to drinking a glass of wine.

    Trooper Doston requested that defendant exit her vehicle

and perform a series of field sobriety tests.                        Trooper Doston

observed that defendant exhibited no clues of intoxication on
either the “One-Leg Stand” test or the “Walk and Turn” test.

However,       defendant    displayed            six    out    of    six       clues    on    the

horizontal      gaze     nystagmus            test    (“HGN    test”).          In   addition,

defendant performed two Alco-sensor breath tests, both of which

indicated       that    defendant’s            breath     tested       positive        for    the

presence of alcohol.                As a result, defendant was arrested and

charged with DWI.

       Defendant subsequently pled guilty to DWI in Durham County

District     Court.        On       16   May    2013,    the     trial     court       sentenced

defendant to sixty days in the custody of the Sheriff of Durham

County,      suspended      defendant’s              sentence,      and    placed       her    on

unsupervised probation for twelve months.                         Defendant appealed to

Durham County Superior Court for a trial de novo.

       On 11 August 2013, defendant filed a pretrial motion to

suppress all evidence gathered after the stop of her vehicle and

after her arrest.           After a hearing, where both Trooper Doston

and Sgt. Devalle testified, the trial court entered an order on

3    October    2013    granting         defendant’s          motion      to    suppress      and

dismissed defendant’s DWI offense.                     The State appeals.

                                II. Motion to Suppress

       “In     evaluating       a    trial      court’s       ruling      on    a    motion    to

suppress . . . the trial court’s findings of fact are conclusive

on    appeal    if     supported         by    competent       evidence,        even     if   the
evidence is conflicting.”           State v. Allen, 
197 N.C. App. 208

676 S.E.2d 519
, 521 (2009) (citation omitted).                             Findings

not   challenged     on   appeal    are    deemed          supported      by   competent

evidence and are binding on appeal.                    State v. Biber, 
365 N.C. 162
, 168, 
712 S.E.2d 874
, 878 (2011).                      “Conclusions of law are

reviewed de novo[.]”        Id.

       As an initial matter, since the State does not challenge

the trial court’s findings, they are binding on appeal.                                 Id.

Neither party contests the validity of the checkpoint on appeal.

Rather, the State argues that the trial court erred in granting

defendant’s     motion    to    suppress        because      the   totality       of    the

circumstances indicate that Trooper Doston had probable cause to

arrest defendant for DWI.           Therefore, we must determine whether

Trooper Doston lacked probable cause to arrest defendant, and

whether the trial court properly granted defendant’s motion to


       “Probable cause requires only a probability or substantial

chance   of    criminal     activity,     not     an    actual     showing       of    such

activity.”      State     v.   Teate,     180    N.C.      App.    601,    606-07,      
638 S.E.2d 29
, 33 (2006) (quoting Illinois v. Gates, 
462 U.S. 213

244 n.13, 
76 L. Ed. 2d 527
, 552 n.13 (1983)).                    “Probable cause for

an    arrest   has   been      defined    to     be    a    reasonable         ground    of

suspicion, supported by circumstances strong in themselves to
warrant a cautious man in believing the accused to be guilty.”

Id.   at   607,     638   S.E.2d     at    33    (citation       omitted).          “Whether

probable      cause    exists      to     justify      an     arrest    depends      on     the

‘totality of the circumstances’ present in each case.”                              State v.

327 N.C. 319
, 339, 
395 S.E.2d 412
, 425 (1990), cert.

498 U.S. 1051
112 L. Ed. 2d 782

       The State relies in part upon State v. Rogers, 124 N.C.

App. 364, 
477 S.E.2d 221
 (1996), superseded by statute as stated

in    State   v.    Overocker,      ___     N.C.       App.    ___,    
762 S.E.2d 921

(2014), to support its argument that Trooper Doston had probable

cause to arrest defendant for DWI.                          In Rogers, the defendant

stopped his vehicle in the middle of an intersection to ask the

trooper    directing        traffic      for    directions.            Id.    at    366,    477

S.E.2d at 222.        The trooper detected a strong odor of alcohol on

the defendant’s breath, and administered one Alco-sensor test

before arresting the defendant.                  Id.     The trial court denied the

defendant’s motion to suppress.                    Id.        On appeal from his DWI

judgment,     this    Court       held    that    while       the   trooper        failed    to

administer the Alco-sensor test twice, as required by statute,

the trooper did not rely solely on the odor of alcohol. Id. at

369-70,    477     S.E.2d    at    224.        This     Court    concluded         there    was

adequate evidence to support a finding of probable cause                                     to

arrest     the     defendant.       Id.         The    trooper      not      only   had     the
opportunity    to    consider     the     defendant’s      .13   Alco-sensor     test

result,1 but also to observe and speak with the defendant. Id. at

370, 477 S.E.2d at 224.             Therefore, the trial court properly

denied the defendant’s motion to suppress.                 Id.

       The   facts   in   the    instant    case     are   distinguishable      from

Rogers.      The defendant in           Rogers   initiated contact with the

arresting officer by stopping the vehicle he was driving in the

middle of the intersection, and the trooper detected a strong

odor of alcohol emanating from the defendant, who was the sole

occupant of the vehicle.             In the instant case, defendant was

stopped at a checkpoint, had not displayed any bad driving or

violated any motor vehicle laws, and the strong odor of alcohol

that   Trooper     Doston      detected    was    emanating      from   defendant’s

vehicle, not from defendant, who was accompanied by a passenger.

       According     to   the    trial     court’s    findings     in    the   order

regarding     defendant’s        motion     to     suppress,      Trooper      Doston

observed defendant’s red, glassy eyes and defendant exhibited

six of six clues on the HGN test, as well as positive results

for    the   presence     of    alcohol    on    defendant’s     two    Alco-sensor

breath tests.        However,      Trooper Doston did not testify that

  The statutory language that allowed the arresting officer in
Rogers to consider the numerical reading of the Alco-sensor test
was superseded by statute as noted in State v. Overocker, ___
N.C. App. ___, ___, 
762 S.E.2d 921
, 929 (2014).    See N.C. Gen.
Stat. § 20-16.3(d) (2013).
defendant herself was the source of the odor of alcohol.                        The

trial court also found that defendant’s speech was not slurred,

she   retrieved     and   provided   Trooper      Doston    with   her    driver’s

license and registration without any difficulty or delay, and

she was steady on her feet when Trooper Doston requested that

she exit her vehicle.           In addition, defendant followed Trooper

Doston’s instructions at all times, and was polite, cooperative,

and respectful to him during their encounter.                  The trial court

further found that defendant exhibited no clues of intoxication

on the “One-Leg Stand” and “Walk and Turn” tests.                        The trial

court concluded, “[t]he facts and circumstances known to Trooper

Dotson [sic] as a result of his observations and testing of the

Defendant      were    insufficient,     under      the     totality      of    the

circumstances, to form an opinion in the mind of a reasonable

and   prudent     man/officer     that   there     was     probable    cause”    to

believe defendant had committed the offense of DWI, and granted

defendant’s motion to suppress.

      The   trial     court’s   unchallenged      findings,    based     upon   the

totality of the circumstances, show that the circumstances were

not   strong    enough    in    themselves   to    warrant     probable     cause.

Since there was no probable cause to support defendant’s arrest,

and the trial court’s findings support its conclusions of law,
we   therefore      hold    that     the     trial     court    properly     granted

defendant’s motion to suppress.

                            III. Motion to Dismiss

     The    State    also    argues    that     the     trial    court     erred   in

granting a motion to dismiss.              We agree.

            The granting of a motion to suppress does
            not mandate a pretrial dismissal of the
            underlying   indictments.      The   district
            attorney may elect to dismiss or proceed to
            trial without the suppressed evidence and
            attempt to establish a prima facie case. If
            so, a defendant may move to dismiss at the
            close of the State’s evidence and renew his
            motion at the close of all evidence.

State v. Edwards, 
185 N.C. App. 701
, 706, 
649 S.E.2d 646
, 650

(2007) (citing N.C. Gen. Stat. § 15-173 (2005)).

     In    the    instant    case,    defendant        moved    to   suppress      the

evidence obtained subsequent to her arrest, and the trial court

granted    her    motion.     However,        defendant’s       appellate    counsel

concedes that the record does not indicate that defendant made a

motion to dismiss, and her case was still in the pretrial stage.

Therefore, pursuant to Edwards, the State, not the trial court,

had the option to either dismiss the DWI offense or proceed to

trial without the suppressed evidence and attempt to establish a

prima     facie   case.       Therefore,        the    trial     court     erred    in

dismissing defendant’s DWI offense.

                               IV. Conclusion
    Under the totality of the circumstances, the trial court

properly      concluded    that       Trooper    Doston     lacked       sufficient

probable cause to arrest defendant for the offense of DWI, and

therefore      correctly   granted      defendant’s       motion    to    suppress.

However, the trial court erred in dismissing the DWI offense as

a result of the pretrial motion to suppress.                       Therefore, we

affirm   the    portion    of   the    trial    court’s    order    granting    the

motion   to    suppress,    but   reverse       the   portion      of    the   order

dismissing the matter.

    Affirmed in part, reversed in part.

    Judges ELMORE and STEPHENS concur.

    Report per Rule 30(e).

Tuesday, April 12, 2016

Is Bad Driving Against the Law

Image result for bad driving

Great review of a new decision on Unsafe Movement from the NC School of Government.

hat’s my take-away from State v. Johnson, decided by the court of appeals last week.
Facts. Johnson began at 10:00 one February evening in Hendersonville. Snow had just begun to fall. An officer was stopped at a red light when the defendant pulled up next to the officer in a left-turn lane. The defendant was blaring his music and revving his engine. When the light turned green, the defendant accelerated into a left turn, screeching his tires and fishtailing his truck. The vehicle did not contact the sidewalk and stayed within the proper lane of travel. There were no pedestrians or other vehicles in the area. The officer stopped the defendant for unsafe movement for the conditions of the roadway. The defendant turned out to be impaired and was charged with DWI.
Procedural history. The defendant moved to suppress, arguing that the stop was not based on reasonable suspicion. A district court judge preliminarily agreed, but on review, a superior court judge upheld the stop and remanded the case. The defendant pled guilty to DWI in district court and appealed to superior court. He again moved to suppress, and the motion was denied. He pled guilty and appealed to the appellate division.
Court of appeals opinion. The appellate court ruled unanimously that the officer lacked reasonable suspicion. It considered two statutes: G.S. 20-141(a), which prohibits driving at a speed “greater than is reasonable and prudent under the conditions then existing,” and G.S. 20-154(a), which prohibits “starting, stopping or turning from a direct line” without first “see[ing] that such movement can be made in safety.” (The court didn’t consider the reckless driving statute, G.S. 20-140, as a possible basis for the stop, perhaps because the officer’s explanation of the reason for the stop didn’t reference recklessness.)
The court observed that the defendant (1) stayed in his lane, (2) did not hit the sidewalk, (3) did not exceed any posted speed limit, and (4) did not risk a collision with another vehicle or a pedestrian. Therefore, it concluded that “[n]othing that . . . the trial court found that Defendant had done . . . constituted unsafe driving, as defined by our statutes, even factoring in the weather conditions.”
Analysis. I admit to being a little surprised by Johnson. I would have thought that a motorist who is going fast enough to fishtail his or her vehicle is going faster than is “prudent,” even if no one else is around and even if the driver is able to keep the vehicle in its lane. (Importantly, there does not seem to have been any suggestion that the road at issue in Johnson had a concealed defect, such as a patch of black ice, that would have caused even a cautious driver to lose traction.) See, e.g., State v. Thibault, 564 A.2d 603 (Vt. 1989) (affirming an unsafe movement conviction where the tires of the defendant’s vehicle squealed and spun, and stating that “the spinning of the tires made it unsafe to proceed while the tires were in spinning motion”).
But my surprise is neither here nor there. Assuming that Johnson isn’t reviewed further, it will be interesting to see how it applies to other driving behavior that seems risky to my middle-aged sensibilities but that may be accomplished in a single lane and below posted limits, such as drifting, burn-outs, and jackrabbit starts. It may also be worth noting that similar driving when other vehicles or pedestrians are nearby may have different consequences. See, e.g., State v. Duncan, 781 S.E.2d 531 (N.C. Ct. App. Jan. 5, 2016) (unpublished) (reasonable suspicion of reckless driving existed where the defendant revved his truck; fishtailed it while pulling out of a parking lot, lifting a tire off the ground; and slung gravel with pedestrians and other vehicles nearby).