Challenges and Defenses in D.W.I. Trials J. Kyle Smith Assistant District Attorney 25th Prosecutorial District Main Goals To help prosecutors understand common challenges and defenses in Driving While Impaired cases To help prosecutors know how to respond to common challenges and defenses in Driving While Impaired cases. Topical Overview DWI Three-Pointers Top Ten Common Challenges and Defenses DWI Three-Pointers DWI Three-Pointers (Elements) Operate a motor vehicle On a street, highway, or public vehicular area Under the influence of an impairing substance OR with an alcohol concentration of 0.08 or more at any relevant time after the driving. DWI Three-Pointers (Burdens of Proof) Reasonable Suspicion to Stop Probable Cause to Arrest Proof Beyond a Reasonable Doubt DWI Three-Pointers (Types of Cases) Straight Stop – Blow Straight Stop – Refusal Wreck Cases Defense 1 Hey! Wait a minute! There was no reasonable suspicion to stop my client in his sweet beamer. Reasonable Suspicion Factors to Consider Observations of the Law Enforcement Officer Information Received from Other Individuals Time of Day Reaction to the Presence of the Officer Proximity to Where Crime may have Occurred Case Law Quantity and quality are considered in the “totality of the circumstances” that must be taken into account when evaluating whether there is reasonable suspicion. Alabama v. White, 496 U.S. 325 (1990) Minimal level of objective justification – something more than a unparticularized suspicion or hunch. State v. Watkins, 337 N.C. 437 (1994) Sufficient Examples Speeding Burnt out head lamps/rear lamps Incorrect belief that a driver had a revoked driver‟s license Stopping Vehicles in the vicinity of a recent crime 20 MPH under the speed limit while weaving within the lane of travel Defense 2 There was no reasonable suspicion to detain my client! Response – Cues of Impairment Driving Cues – Weaving or Swerving – Turing with wide radius – Headlights off – Speed slower than 10 MPH below the speed limit – Fail to or improperly signal for turns or lane changes – Slow response to traffic signals Response – Cues of Impairment Physical Cues – Bloodshot Glassy Eyes – Odor of Alcohol on Breath – Swaying, Unsteady, or Balance Problems – Slurred Speech – Fumbling with License or Registration – Open Containers of Alcohol in Vehicle Defense 3 There was no probable cause to arrest my client! Response At the time of the arrest the officer has within his knowledge reasonably trustworthy facts and circumstances sufficient to warrant a reasonably prudent person to believe that the suspect has committed or is committing a crime. Beck v. Ohio, 370 U.S. 89 (1984) Response Look to bad driving, psychophysical evaluations, physical observations of the defendant, and alco-sensor results N.C.G.S. 16.3 allows the State to submit the alco-sensor results to support probable cause to arrest. Instead of turning left as officer instructed, the driver stopped, strong odor of alcohol on breath, and .13 on alco-sensor was sufficient for probable cause. State v. Rogers, 124 N.C. App. 364 (1996). Defense 4 Hey Judge…..No Miranda Warnings were given, so we have to suppress those FSFTs and Admissions! Response SFSTs are non-testimonial Physical dexterity tests are not „evidence of a testimonial or communicative nature within the privilege against self-incrimination‟ and are not within the scope of the Miranda decision and the Fifth Amendment. Therefore, the admission of evidence of defendant‟s refusal to submit to such tests does not violate his constitutional right against self- incrimination. State v. Flannery, 31 N.C. App 617 (1976). Response Defendant was not subjected to custodial interrogation. The appropriate inquiry is whether, based on the totality of the circumstances, there was a formal restraint on freedom of movement to the degree associated with a formal arrest. State v. Buchanan, 353 N.C. 332 (2001). NOT the “free to leave” test. Defense 5 “My client wasn‟t impaired…He was (insert excuse here) Response Diabetes Fatigue Medication/Illness Physical Condition/Disabilities Nervousness Response Did defendant ever advise officer of condition? Are the signs visible in court? Can an expert, i.e., toxicologist, medical doctor, refute the defense? Do the alternative explanations account for the BrAC or BAC? Defense 6 Judge, we don‟t know who was driving that car. Response Must rely on circumstantial evidence Any injuries, bruises, cuts consistent with a wreck? i.e. seatbelt bruise? Injuries to wrists? Any statements of the Defendant SODDI? Let me guess….he‟s not here to exonerate you today….. Response Get a copy of the accident report! Names and contact info for witnesses What officers responded to the wreck? Who were the EMS/EMT personnel? Are there any 911 tapes available? Defense 7 Judge, the State can‟t prove when the driving occurred. Response Again….you have to rely on circumstantial evidence. Did the Defendant say what time the driving occurred? AIR form admissions? Feel the hood of the car? Was the engine or muffler making any popping or cracking sounds? Witnesses? Defense 8 Judge, the Intoxilyzer 5000 doesn‟t reflect my client‟s level of intoxication. Response The test is “any relevant time after driving” That‟s right….its statutory….See N.C.G.S. 20- 138.1(a)(2) Three hour forty-five minute delay before providing a breath sample has been held to be sufficient. State v. George, 77 N.C. App. 470 (1985). Response Defendant‟s allegations that he/she drank after the collision go to weight, not admissibility. State v. George, 77 N.C. App. 470 (1985); State v. Ferrell, 75 N.C. App. 156 (1985). Expert testimony regarding elimination rate is admissible to prove alcohol concentration at the time of driving. State v. Catoe, 78 N.C. App. 167, rev. den., 316 N.C. 380 (1995); State v. Davis, 142 N.C. App. 81, rev. den., 353 N.C. 386 (2001) Response It is unnecessary to prove that defendant‟s BAC was higher or lower, or was rising or falling at the time of the driving, as compared to the time of the breath or blood test. State v. Rose, 312 N.C. 441 (1984). Defense 9 My client did not understand his intoxilyzer 5000 rights Response The intoxilyzer 5000 rights must be given orally and in writing. N.C.G.S. 20-16.2(a) The State does not have to prove that the defendant understood his intoxilyzer 5000 rights Response Placing a copy of the rights form before the defendant and allowing the defendant to read along is sufficient. It is not necessary for the State to prove that defendant actually read or understood the rights form provided by the chemical analyst. See State v. Carpenter, 34 N.C. App. 742 (1977); State v. Green, 27 N.C. App. 491 (1975). Response Spanish rights form. Speak English until lawyer involved If you have a specific nationality in your jurisdiction, then get the rights form in that language. What about deaf or blind defendants? Defense 10 Judge, any evidence of my client‟s refusal will violate his 5th Amendment Rights. Response Taking of a breath sample from an accused for the purpose of the test is not evidence of a testimonial or communicative nature within the privilege against self-incrimination. State v. Flannery, 31 N.C. App. 617 (1976). Response Defendant‟s refusal to give a second breath sample will make the result of the first breath sample admissible. Willful requirement was removed in 2003. See N.C.G.S. 20-139.1(b3) Response N.C.G.S. § 20-16.2 (c) does not preclude testing under other applicable procedures of law. Results of analysis of blood/urine sample obtained by search warrant after refusal admissible as “other competent evidence.” State v. Davis, 142 N.C. App. 81, rev. den., 353 N.C. 386 (2001). Use Form DWI Search Warrant(AOC-CR-155) Response State may use properly obtained hospital medical records to prove impairment. State v. Drdak, 330 N.C. 587 (1992). Judge may set aside physician/patient privilege under N.C.G.S. 8-53 if “necessary to a proper administration of justice.” If you need a copy of this motion, I can give you a template that I use. Other Examples… The intoxilyzer 5000 only has a one year warranty…….. When did you stop driving? When I ran into the side of the house….. Entrapment when the driver calls in a false police report…… Mr. D.A…..you have an ethical duty to pursue justice, and convicting my client would not be just.
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