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									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
 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!
 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)
 Look to bad driving, psychophysical evaluations,
  physical observations of the defendant, and alco-sensor
 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!
 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
 Defendant was not subjected to custodial
 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)
   Diabetes
   Fatigue
   Medication/Illness
   Physical Condition/Disabilities
   Nervousness
 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.
 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…..
   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.
 Again….you have to rely on circumstantial
 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.
 The test is “any relevant time after driving”
 That‟s right….its statutory….See N.C.G.S. 20-
 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
 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)
 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
 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
 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).
 Spanish rights form.
 Speak English until lawyer involved
 If you have a specific nationality in your
  jurisdiction, then get the rights form in that
 What about deaf or blind defendants?
                 Defense 10

Judge, any evidence of my client‟s refusal will violate his
5th Amendment Rights.
 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).
 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)
 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)
 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
 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… have an ethical duty to pursue
  justice, and convicting my client would not be

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