FUN FACT: Did you know that the police can seize, impound and sell your car if you are arrested for DWI/DUI and you either (1) have a driver’s license which is revoked due to a prior impaired driving revocation or (2) have no valid driver’s license and no automobile liability insurance.
The police present a magistrate with an affidavit of impoundment to initiate the seizure. Then the magistrate issues an order of seizure. The car is towed to a private impound lot where the daily storage fees begin accumulating.
The vehicle can be released to:
1) An “innocent owner.” This is a person who owns the car but was not the DWI driver and didn’t know the driver’s license status. An innocent owner can obtain a permanent release,
2) The defendant/owner can obtain a permanent release if he/she can demonstrate that his/her license was not revoked due to a previous impaired driving revocation or the license is valid and/or there is liability insurance,
3) A rental car agency can obtain a permanent release if the car was a rental,
4) A lienholder can obtain a permanent release if driver/borrower has defaulted on the loan and
5) A co-owner of the car can obtain a temporary release if that person posts a security bond in an amount equal to the fair market value of the car as long as the car is returned on the day of the forfeiture hearing.
Trials involving cars subject to forfeiture are to be tried on the officer’s next court date or 30 days whichever comes first unless the court grants a continuance for “compelling reasons.” Since trials rarely occur so quickly, if the defense wants to try to enforce this right, they must argue for an immediate trial date, object to any continuance and argue that the remedy is to release the car.
NCGS 20-28.3
Category: DUI/DWI Issues
In order to be convicted of a DWI/DUI, the prosecutor must prove that either you drove a vehicle while impaired or, regardless of impairment, that you drove a vehicle with a blood alcohol concentration of .08% or higher. There is no requirement of impairment for the second prong. FSTs are evidence of impairment so if the officer has a legal reason to stop your car, the officer’s observation of the smell of alcohol, the physical signs of alcohol consumption and an admission of alcohol consumption constitutes sufficient evidence for arrest regardless of the FST.
In Tennessee v. Silva (3/16/16, Tenn. Ct of Appeal), the court ruled that if the officer smelled alcohol emanating from the car, if defendant had bloodshot and watery eyes and admitted to consuming alcohol, he could be arrested for DWI regardless of the fact that he passed the FST. The rationale was that if there was probable cause for the stop, then the defendant need not display “every known symptom of intoxication in order to support a determination of probable cause.”
Don’t submit to the FST; it is a no win situation. If you pass or fail, you will be arrested if there are observable indicia of alcohol consumption.
Do not assist the officer in the collection of evidence to aid in your own conviction.
G.S. 15A-145.5 allows for the expunction of convictions for “nonviolent” misdemeanors and felonies which are at least fifteen years old. Until recently, a misdemeanor DWI conviction has not been on the list of excluded offenses. However, amended G.S. 15A-145 (expunction of misdemeanor conviction for first offender under 18), G.S. 15A-145.4 (expunction of nonviolent felony conviction for first offender under 18), and G.S. 15A-145.5 (expunction of certain nonviolent misdemeanor or felony convictions without age limitation), will add the DWI to the list of excluded offenses for expunction petitions filed or pending on or after December 1, 2015.
If you otherwise qualify, have your expunction petition filed immediately. Expunction petitions can take four to six months to be granted and the new law will bar any petitions not granted by December 1, 2015. So get going or it will be too late.
With the legalization of marijuana and reduced penalties for its use, it logically follows that there will be an increase in DWI marijuana cases. The number of drivers with marijuana in their systems increased from 8.6 percent in 2007 to 12.6 percent in 2014. Although there is a plethora of research on DWI alcohol, the opposite is true for marijuana. Additionally, field sobriety and blood alcohol concentration (BAC) tests do not translate to effective indicators for marijuana impairment.
Use of marijuana can: (1) impair a person’s problem solving ability (2) can reduce a person’s ability to focus on several things at once, (3) can inhibit the part of the brain which initiates and coordinates movement (4) affects concentration and (5) reduces peripheral vision. But studies show that drivers who have ingested marijuana tend to be aware that they are impaired and try to compensate by driving slowly and avoiding risky actions.
DWI marijuana and alcohol drivers have different deficits and drive differently. Alcohol impaired drivers tend to drive faster than normal and to overestimate their skills. The opposite is true for marijuana impaired drivers who could pass simple tests of memory, addition and subtraction, whereas alcohol impaired drivers were much more likely to fail.
Field sobriety tests such as walking heel to toe (nine steps one way, turning on one foot and walking back), standing and balancing on one leg and the nystagmus test (tracking a pen with your eyes) will snag 88% of drivers under the influence of alcohol but will only catch 30% of drivers who use marijuana regularly.Additionally, accurate measurements of impairment are illusory. With alcohol, blood tests will measure the amount of alcohol in the blood at the time the blood is drawn. Breath tests measure the alcohol which has passed into the membranes of the lung’s air sacs and then into the air. The concentration of the alcohol in the air exhaled is related to the concentration of the alcohol in the blood and can be detected by the breath alcohol testing device. The alcohol concentration in the breath is related to that in the blood by the ratio of 2,100:1.
However, when marijuana is ingested, the active ingredient, THC, leaves the blood stream quickly and is absorbed by the brain and fatty tissues. So by the time a person is actually impaired and the THC levels are the highest (10 to 30 minutes after ingestion); the THC has left the blood. Blood tests will show recent use but not necessarily impairment. Urine tests are not an accurate indicator of impairment since the THC stored in fat cells slowly releases metabolite days and weeks after use.
To compound this conundrum, scientists do not agree on how much THC is necessary to cause impairment. Several states have set a numeric limit for the amount of THC in the blood from 1 nanogram per milliliter to 5 nanograms per milliliter. Scientists argue that the 5ng/ml is too high but zero tolerance is erroneous since the existence of THC metabolite is not proof of impairment. Some states have one standard for THC in the blood and another for THC metabolite.
Since nobody seems to agree about anything and until a new breathalyzer is created which can detect recent marijuana use, you may want to consider pushing the case to trial.
1. The National Highway Traffic Safety Administration studies 2013 and 2014.
2. Psychopharmacology, “A placebo-controlled study to assess Standardized Field Sobriety Tests performance during alcohol and cannabis intoxication in heavy cannabis users and accuracy of point of collection testing devices for detecting THC in oral fluid,” Bosker et. al, 2012.
3. “Driving While High”, E. Gray, Time, 10/13/14, p.56, Dr. Marilyn Huestis, National Institute on Drug Abuse, Psychopharmacology, Drummer et al. 2004; Grotenhermen et al. 2007.
4. “Stoned driving on the rise, but is it as risky as drinking and driving?” CBS News, 2/11/15.
5. “Driving under the Influence, of Marijuana, Koerth-Baker, NY Times, 2/17/14.
6. Freudenrich, How Breathalyzers Work, www.HowStuffWorks.com.
7. “Driving While High”, E. Gray, Time, 10/13/14, p.54, 56.
8. Id at p. 56.
In California, the first jurisdiction I practiced as a lawyer, if you were stopped for a DWI/DUI, you were given the option of which type of chemical test: blood, breath or urine, you wanted. As long as you selected one and completed the test, no refusal was alleged. The benefit of blood or urine was that some of the sample was tested by the police agency but the remaining amount, a “split” was available for defense testing. With a breath test, there is no independent test possible. Consequently, if you selected the breath test but wanted a split available for defense testing, you could always select an additional test. I have always believed that the inherent conflict between the role of the police as an “investigatory” agency who also tries to aid in your conviction, mandated that any observations or recordation of what allegedly transpired was suspect and independent verification was necessary. When I began to practice in North Carolina, I was shocked to discover that my skepticism of the objectivity of police was not a concern. Independent verification by the defense was not an issue.
The law in North Carolina provides for the driver to have a witness but only as to a mutually agreed upon chemical test. The officer decides which test and how many tests will occur. The police officer decides whether a “blood or other bodily fluid” will be tested; the choice is not yours. If the officer selects a breath test and you want an independent verification, you have to go as soon as possible to a private laboratory or medical facility for your own blood draw.
If the officer offers a breath test and you comply, the officer may then order a blood test and if you refuse to submit, the officer can: (1) get a warrant and force the blood test, (2) deny you a witness to this second test and (3) you have “refused” within the meaning of the statute and will suffer a more onerous driving privilege suspension… even though you submitted to the initial test.
If you are stopped and you do not believe that a breath test results accurately measure your blood alcohol concentration, get a second test. Ask the officer for the second test and if refused, get your own done. Also, even if you do not want a blood test, if the officer requires one after a breath test, comply- unless you want to suffer the driving privilege ramifications of a refusal.
[Whether you are best served in the trial by refusing is a topic for another Blog.]
North Carolina General Statute 20-138.1, Impaired Driving, states that a person is guilty of impaired driving if he drives a vehicle on any highway, street or any public vehicular area (1) while under the influence of an impairing substance or (3) with any amount of a Schedule I controlled substance as listed in GS 90-89 or its metabolites in his blood or urine.
A metabolite is the chemical compound that is produced during the process of metabolism, that is, the breaking down of the drug by the body or the physical process of the body ridding itself of the drug.
A very interesting case was recently issued from Arizona. In State ex. Rel Montgomery v. Harris (Ariz. 2014), the Arizona Supreme Court ruled that their state’s law which prohibited driving with any illegal drugs or the metabolite must be interpreted to apply only to metabolites which are capable of causing impairment. Also, as the court in Harris pointed out, certain legal drugs share the same metabolite as illegal substances. The State must be able to show that the metabolite is actually metabolized from an illegal substance.
The Arizona case dealt with a DWI based on marijuana. The law said that if a person had illegal drugs or their metabolites, the person was deemed impaired. Unlike alcohol with the 0.08 BAC, there is no quantitative amount of a controlled substance or its metabolite to constitute impairment.
In the case of marijuana, there are two metabolites: Hydroxy-THC, the primary metabolite and Carboxy-THC, the secondary and non-impairing metabolite which can remain in the body for 28-30 days. The court ruled that the metabolite amount had to be shown to be of a sufficient quantity and character to cause actual impairment. The presence of a non-impairing metabolite reflecting prior usage was not sufficient to sustain a conviction.
Consequently, based upon wording of the NCGS, any DWI based upon a metabolite must be based upon a sufficient quantity to cause actual impairment. NCGS 20-138.1 states that any Schedule I metabolite qualifies as impairment per se. Based upon the Harris case, it can be argued that the statute must be interpreted to only apply to metabolites capable of causing impairment. Additionally, we must understand the nature of the specific drug’s metabolites to evaluate whether the primary or secondary metabolite is capable of causing impairment. Finally, the metabolite must be shown to have come from the illegal drug and not from a legal substance.
If your case is based upon a metabolite of a controlled substance, a consultation with a forensic chemist is critical to any defense.
You are stopped by the police. It may be because of a checkpoint, the commission of an infraction or an accident. The officer approaches your driver’s side window. What facts must exist before you can be arrested and taken to perform a chemical test? The officer needs to have “probable cause.” If there is no probable cause, your attorney can make a motion which should result in a dismissal of your case.
Scenarios illustrating lack of probable cause occur when the police have very little evidence that you are guilty of impaired driving. The function of this Blog is to educate you so you do not create probable cause and facilitate your own arrest. Do not give the police any information which could aid the prosecutor in building a case against you. (Please review the previous Blog “Know to Say No” for details regarding refusing field sobriety tests, the Preliminary Alcohol Screening device and incriminating questions.)
“Probable cause” exists when the officer has a reasonable basis for suspicion which would cause a cautious person acting in good faith to believe that you are guilty of a DUI/DWI. Facts such as the odor of alcohol or an accident, in and of themselves, are not enough. The prosecutor will elicit from the officer testimony that a COMBINATION of facts existed which amounted to probable cause.
What are the facts at issue? The first fact is the driving. If the reason for the stop was a checkpoint or a broken taillight, there is no reason to suspect impairment. If you were accused of driving on the wrong side of the road or weaving all over the road, these facts indicate impairment. A neutral fact would be driving which results in the commission of a minor infraction but an infraction which could have just as easily happened when one was sober, e.g., speeding just over the limit or failing to come to a full and complete stop at a stop sign.
Secondly, what is your appearance? Is there the odor of alcohol on your breath? Is it strong or barely noticeable? Are your eyes red, watery or glassy? Is your speech thick or slurred? How is your coordination? Retrieving your license and insurance and exiting the car are at issue. The absence of physical manifestations is very helpful. The converse also applies.
HOW MANY FACTS ILLUSTRATING IMPAIRMENT CAN BE PRESENT AND STILL NOT AMOUNT TO PROBABLE CASE? This is a fact specific analysis. If you were in an accident and had the odor of alcohol, under Steinkrause v. Tatum 689 SE 2d 379, 201 NC App 289 (2009), that is enough to constitute probable cause in North Carolina. In State v. Bell (Tenn. 2014) the Supreme Court in Tennessee ruled that even if one passed the field sobriety tests but drove the wrong way on a divided highway, smelled of alcohol and admitted to consuming alcohol, probable cause existed. The court ruled that the excellent field sobriety tests did not outweigh the other facts which pointed to the existence of probable cause. The ruling in the Tennessee case is not universally accepted by other jurisdictions. Every case is factually unique.
Your attorney must focus on an analysis of the facts known to the officer at the time of arrest to determine whether these facts are sufficient to permit a reasonable person to believe that you committed the crime of impaired driving. It may not take much to constitute probable cause but do everything in your power to keep the evidence against you minimal.
You are stopped by the police for a moving violation, e.g. speeding, or an equipment violation, e.g. tail light not working, or at a DUI/DWI checkpoint. The officer comes to your window and the investigation begins. The officer may just ask for your license and registration but he is looking at your eyes, he is trying to smell your breath for the odor of alcohol, he is looking at your dexterity or lack thereof in retrieving the requested documents. .
Now, having smelled alcohol, he will ask you a series of questions designed to elicit incriminating information. Specifically, he wants to know if you have been drinking and how much. Do you have to answer these questions? NO. Be polite; always maintain your composure because the officer will be frustrated that you are hindering his attempt to arrest you. Say as little as possible, depriving him of the accusation of slurred speech, but inform him that on advice of counsel you respectfully will not answer questions.
He will then ask you to step out of the car. He is looking for poor balance and lack of coordination when you open the door, rotate your body in your seat, place your feet on the ground and come to a standing position. Should you get out of the car? Yes. If you obstruct the investigation, the officer will have probable cause for an arrest based upon the obstruction and deprive your lawyer of bringing a motion to dismiss the case for lack of probable cause to arrest.
Once you are out of the car and standing, the officer will inform you that you will be asked to participate in Field Sobriety Tests (FSTs). When it seems an appropriate time, you should politely decline, again citing advice of counsel. I will go into the details of the individual FSTs in the next Blog, but just know that you are under no legal obligation to participate. FSTs are a battery of tests designed to show impairment. There are no standards or mechanisms for grading performance. It is a no win situation.
The ramification of the decision not to submit to the FSTs is twofold: most importantly, the officer will be deprived of additional facts illustrating impairment and it will be more difficult to justify the existence of probable cause to arrest. So far, he only has the driving, your appearance at the car window and your stepping out of the car. The other ramification relates to evidence at trial. The judge or jury will be informed of your refusal to perform the FSTs. (NCGS 20-139.1(f)) that can be explained by your lawyer later. Do not worry about it.
Next is the PAS or Preliminary Alcohol Screening device. The PAS can only say that you have consumed alcohol. It is useful only for that purpose since without monitoring by police of a minimum of 15 minutes, it may only be measuring mouth alcohol and not blood alcohol concentration. You should again decline to blow in the PAS. Refusing to blow in the PAS is not a refusal to submit to a chemical analysis and is not a violation of the Implied Consent law.
What is the Implied Consent law? When you sign your name in order to get your driver’s license, you are also agreeing to provide a breath, blood or urine sample if called upon by the police in conjunction with a DUI/DWI investigation. This promise is called “implied consent.” (NCGS 20-16.2(a)) Under the implied consent law, you can still refuse any chemical test but if you do, the DMV will revoke your driver’s license for at least one year and the officer can still seek a warrant to compel you to be tested. (Missouri v. McNeely 569 U.S. _____ (2013). So, there is really no benefit in refusing. You are entitled in North Carolina to call a witness to the chemical test.
Other than your agreement to provide a chemical test, you do NOT agree explicitly or implicitly to do or say anything further to aid in the police officer’s attempt to arrest you. You will not answer incriminating questions in the oral interview at the car window, do not participate in the FSTs and do not blow in the PAS. Your lawyer will be able to evaluate whether there was probable cause to arrest and you have done your best to minimize a less than ideal situation. Be respectful and polite and the officer will not be able to accuse you of being belligerent which he will characterize as a sign of intoxication. Blame it all on advice of counsel. That is what we are here for.