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When it comes to “Driving While Impaired” charges, a person’s ability to gather evidence in their own defense can become a game of minutes. While the State gets to detain you, arrest you, and run you through whatever sobriety tests and chemical analyses they deem appropriate, a suspect’s options are much more limited. Considering that alcohol and other impairing substances only stay in the blood stream for a limited amount of time (generally, blood alcohol decreases at a rate of roughly .02 per hour), the ability to do your own testing or have witnesses make their own observation as to your sobriety must be accomplished quickly.

In light of the temporal nature of DWI evidence, our laws provide certain safeguards to allow the accused access to independent testing and witnesses. Without these protections, we would have a system where the only people that are able to say whether you were impaired at a certain time are the very people that (a) the state will be calling to prosecute you; and (b) are actively prohibiting you from having anyone else observe you during the relevant time.

In some circumstances, extended detention post-DWI may violate statutory and constitutional rights. The lead case in North Carolina on this issue is State v. Knoll. Well, to be fair, Knoll is three cases batched into one, but they all deal with scenarios where a magistrate’s decision to hold DWI suspects in detention destroyed their capability to gather evidence to defend themselves. You can read more about Knoll here, but the basic gist is that if you are arrested on an impaired driving charge, you have a right to collect evidence in your own defense, and that right includes the right to have witnesses observe your condition close in time to your arrest.  

If the magistrate determines that a bond is required, which in turn delays the release of the DWI arrestee, then the magistrate must inform the individual of his right to have witnesses come to the jail to observe him.  Denial of that right should require the dismissal of the Driving While Impaired charge.

Recently, the Court of Appeals of North Carolina ruled in a case called State v. C.K.D. You may notice the odd naming of this case. This is due to it being initially decided during a time when North Carolina law allowed for the automatic expunction of dismissed charges. “C.K.D.” got his case dismissed, but the state appealed. The case was able to move forward, but the defendant’s name was removed pursuant to the expunction relief.  

In any case, C.K.D. is a rare expansion of Knoll protections. With that said, it is important to note that it is also technically an “unpublished” opinion. This means that while it does not constitute binding legal authority, it can still be used for persuasive purposes.

In C.K.D., the Defendant was charged with Driving while impaired and subsequently blew a .17. The magistrate at the time set an unsecured bond (meaning he didn’t have to put down any money to leave), but then also put him in an impaired revocation hold. Specifically, the magistrate ordered that the Defendant would be detained until “‘(1) his physical and mental faculties [were] no longer impaired to the extent that’ he presented a danger, or (2) ‘a sober, responsible adult [was] willing and able to assume responsibility’ for him”.  The evidence the magistrate relied on in making this decision was that the defendant had a “BAC .17, Red Glassy Eyes, Slurred Speech, Odor of Alcohol” and would be a danger to himself and the public at large if released in his intoxicated state. The Defendant did not ask for any witnesses and went even further as to sign a waiver saying that he didn’t want to have any witnesses view him at the jail or to contact anyone. He did, however, ask if he could grab an uber or taxi to get home, as he had money to do so. The magistrate said the only way they would release him to a cabbie or uber driver is if that person personally signed paperwork for his release, which he and the officer did not think anyone would do.

As a result, the Defendant was taken to jail, where he was under orders to be held until his BAC came back to a .00. He ended up spending 11 hours in custody and was not given an opportunity to use a phone. The Defendant later said that if he had known he was going to have spent 11 hours in jail he would have just woken up his wife to come and get him.

At trial, the Defendant argued for a dismissal of the charges under Knoll in district court but lost. He appealed to superior court and won. Then the State appealed to the Court of Appeals, and the Defendant won again.

The crux of the Court of Appeals’ decision seems to rely on the Magistrate not having sufficient reason to justify holding the Defendant. Basically, the .17 alone was not enough evidence to prove that the Defendant would be any sort of danger to himself or the public. Moreover, the evidence showed that the Defendant was nothing but polite and cooperative with the officers and judicial officials throughout his arrest and processing. In the absence of any other evidence showing he would be a danger to himself or others, his extended detention denied him the ability to gather evidence on his own behalf at a crucial time.

Also notable was that the Court held that even though the Defendant signed an “Implied Consent Offense Form” and checked a box indicating that he did not want to call any witnesses or have anyone observe him at the jail, that he did not waive his right to have witnesses observe him outside of the jail. Therefore, if he had been allowed to call that taxi or return to his wife, they would have been able to observe his condition and he could hypothetically call them as witnesses in his defense. Consequently, because the magistrate and officer both cautioned against him calling a cab, and he ended up being held for 11 hours without an opportunity to make a phone call, the state had caused irreparable damage to his ability to gather evidence in his own defense.

This case provides defendants with persuasive arguments against extended pretrial detention in scenarios where the basis of that extended detention is merely a BAC. It also provides the ability to argue for irreparable damage against a defendant even in cases where the State can argue such defenses are waived by the signing of implied consent forms. Put another way, this case reflects that the proper inquiry is whether there was an actual waiver of implied consent rights, and not whether one was merely signed.

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Robert C. DiDomenico III

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