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A woman in New Hanover County, North Carolina says that she is facing charges for allegedly driving while impaired based solely upon an agility test that she was subjected to at the hospital after she was involved in a car accident. The woman does not remember what occurred in the wreck. The air bag on her car deployed and the woman suffered a concussion in the wreck.

The woman says that a North Carolina trooper gave her a breath test at the hospital, which she passed. But she says that the trooper did not like how she performed on a field sobriety test after she sustained the concussion. Apparently, the trooper claims that the woman did poorly in tracking his finger while she lay in a hospital bed. What is more, she says that her hospital records show that she did not have any alcohol or drugs in her system.

Law enforcement took a blood sample for purposes of a drunk driving investigation. Test results may not come back from that test for up to a year. Meanwhile, the woman is charged with DWI and she is scheduled to appear in court later this month.

Followers of this blog may recognize that car accident investigations lead from time to time to drunk driving charges. Law enforcement may subject an accident victim to field sobriety tests after a wreck a jump to the conclusion that a victim’s performance on one or more tests may not be up to the satisfaction of the officer. In the recent New Hanover County case, the woman reportedly says that she has tests to show that she was not under the influence when she was in a wreck.

Typically, news reports on an alleged drunk driving car accident are generated by government actors and carried in the press. Although there may be two sides to a story, a person suspected or accused of a crime has the right to remain silent. Most defendants do not speak to the press about an offense, as anything a person says may be used in court.

Our constitutional system acknowledges the freedom of the press, often as an important check on government power. But our constitutional system also guarantees numerous due process and other rights for people accused of a crime. Criminal defense lawyers argue in court to protect those rights, and the right to a criminal defense is important check on government power to maintain the integrity of our system.

Source: WECT, “Hospital tests negative, woman still charged with DWI,” Ashlea Kosikowski, updated April 6, 2013

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Breathalyzer evidence is critical in any drunk driving case — and mandatory in a .08% charge.  Yet, as I've written repeatedly in the past, these machines are neither accurate nor reliable.  See, for example, How Breathalyzers Work — and Why They Don't, Inaccurate Breathalyzers Cast Doubt on 1,147 DUI Cases in Philadelphia and Report: Breathalyzers Outdated, Unstable, Unreliable.   

And in today's news:

JudgeThrows out Breath Machine Evidence

County judge in Pennsylvania rejects breath test machine as inaccurate beyond a certain range

Dauphin Co., PA.  Jan. 8 –A judge in Dauphin County, Pennsylvania last week delivered a bombshell decision finding evidence provided by breath machines to be inaccurate outside a narrow range. After hearing extensive testimony from expert witnesses, the Court of Common Pleas judge found it was not appropriate for charges of "high rate" driving under the influence of alcohol (DUI) be established by providing a printout from a machine displaying a high number. 

"The unvarnished facts of this case ultimately establish that the array of breath testing devices presently utilized in this commonwealth, and in particular the Intoxilyzer 5000EN device manufactured by CMI, Inc., as those devices are presently field calibrated and utilized in this commonwealth, are not capable of providing a legally acceptable Blood Alcohol Content (BAC) reading, which is derived from a defendant's breath, outside of the limited linear dynamic range of 0.05 percent to 0.15 percent," Judge Lawrence F. Clark Jr. ruled. 



In Pennsylvania, a separate "highest rate of alcohol" charge can be levied on a driver accused of having a BAC in excess of 0.16 percent. Enhanced penalties for this charge include a fine of up to 00 for a first offense and a minimum three-day stay in jail. A third offense carries a minimum one-year jail sentence.



Testimony offered at the hearing showed the manufacturer of the Intoxilyzer failed to follow state rules requiring the solutions used to calibrate the breath machines be certified by an independent lab. CMI creates its own samples in-house, according to CMI engineer Brian T. Faulkner.



"As a result of the evidence produced at the hearing, it is now extremely questionable as to whether or not any DUI prosecution which utilizes a reading from an Intoxilyzer 5000EN breath testing device could presently withstand scrutiny based upon the startling testimony of the commonwealth's own witness, Mr. Faulkner, at the hearing," Judge Clark wrote.



Since the machine did not follow state regulations, there was no way the court could determine whether the initial calibration of the machine was completed in a scientific and accurate manner. Moreover, the machine is only checked against samples of 0.05, 0.10 and 0.15 percent. 



"If you're calibrating from 0.05 to 0.15 and did these three points, you have the correlation coefficient, you've proven to me that your instrument works — definitely works between 0.05 percent and 0.15 percent. There's no data to say that it works at 0.16 percent. There's no data to say it works at 0.04 percent," Lee N. Polite, an expert in organic chemistry, testified.

Despite the unreliability of thse machines, they continue to constitute the main evidence against a citizen charged with DUI — and the only evidence when charged with having over .08% blood alcohol.
 

DUI BLOG

A man originally convicted of first-degree murder in a driving while impaired case is being released from prison today. Authorities had alleged at his trial that he was drinking and taking prescription medication before he was involved in a fatal accident September 4, 1996. Two Wake Forest students were killed in that car accident, a third was injured.

The man was convicted of first-degree murder in 1997, the first person to be convicted of such a crime in a DWI case. The North Carolina Supreme Court agreed with the criminal defense that prosecutors were wrong in seeking the first-degree murder charge. The state’s highest court threw out the conviction.

In 2003, the man faced a new trial, and eventually pled guilty to a second-degree murder charge. The judge imposed a sentence of 15 to 18 years in prison on the subsequent conviction, with credit for roughly six-and-a-half years of time served.

While the case set precedent that first-degree murder charges are not available to prosecutors in a DWI case, the events led to tougher DWI laws in North Carolina. In 1997, North Carolina DWI laws were stiffened as a result of the case. The new DWI law in 1997 set a mandatory minimum sentence for habitual drunk drivers and included a license revocation provision for North Carolina drivers charged with DWI.

The man is scheduled for release from prison after serving roughly 15 years. He will be released on post-release supervision for nine months in Iredell County. During his supervised release, strict terms will be monitored by his probation officer.

Source: Winston-Salem Journal, “Figure in landmark impaired-driving case leaves prison today,” Michael Hewlett, April 11, 2012

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After nearly six weeks of testimony, prosecutors have closed their case against Mark Stobbe.
Manitoba stories

Last week, a Superior Court judge in Forsythe County threw out charges of driving while impaired that had been lodged against a 43-year-old North Carolina man. Police claimed the accused had been driving drunk on July 12, 2010. To support the charges, prosecutors were relying upon evidence that had been seized in a blood draw that was taken more than an hour after the DWI arrest.

A Winston-Salem police officer says a truck pulled into a gas station around 11 p.m. on the night of the arrest. Law enforcement claims the man accused of driving the truck was impaired that evening. The man says he was never driving the truck, but law enforcement claims he was found in the driver’s seat.

The owner of the truck was reportedly also in the vehicle and was charged with aiding and abetting DWI. Prosecutors dropped the aiding and abetting charge against the truck owner last year.

Court documents allege that law enforcement made the man accused of driving the truck perform a series of field sobriety tests and then requested that the man submit a breath sample for testing. The man reportedly refused the Breathalyzer test and police brought him to a hospital. Court papers show the police requested the man provide a blood sample, which he refused.

The man accused of DWI says police officers used excessive force to obtain a blood sample after the DWI test refusal. The North Carolina man says law enforcement sat on him in the hospital bed, shoved his head into a pillow, while a nurse drew blood from him. The judge heard the evidence and agreed that the blood sample was obtained in violation of the defendant’s rights. The judge threw the case out of court. The prosecutor is reportedly appealing the trial court decision.

Source: My Fox 8, “DWI Charge Dropped After Man Says Winston-Salem Officer Sat on Him,” Michael Hewlett of the Winston-Salem Journal, Jan. 13, 2012

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When people in North Carolina hear news of an arrest for driving while impaired, most probably think of a drunk driving arrest. The truth of the matter is that North Carolina DWI laws may extend to any number of substances that impair a person’s normal faculty to drive an automobile.

The North Carolina Highway Patrol says they responded to a single-vehicle accident last Wednesday involving a car that apparently hit a ditch. The accident reportedly occurred around 8:30 p.m. Law enforcement claims the trooper who responded to the crash site suspected the driver may have been “under the influence of prescription medications.”

The driver, a district court judge who has served on the bench in Lenoir and Greene counties, apparently takes Prilosec and zolpidem, a generic form of the sleeping aid Ambien. After investigation the solo-car accident, the trooper arrested the judge on suspicion of DWI.

News reports suggest the judge takes the zolpidem on a nightly basis. However, the news does not indicate if the judge took any before the 8:30 p.m. accident, and if so, the news does not indicate when that medication was allegedly taken.

Law enforcement says that they obtained a blood sample from the driver on the night of the accident. Toxicology tests on the blood sample are expected to be conducted by the State Bureau of Investigation. Results of the tests are not expected for a matter of weeks.

The driver reportedly says he did not feel impaired before venturing out to pick up a ham from a friend’s house. The accident apparently occurred during the return trip that evening. The one-vehicle accident apparently occurred in an instant.

Source: New Bern Sun Journal, “District court judge charged with DWI,” David Anderson, Nov. 25, 2011

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A 24-year-old Lowell woman is being held in the Gaston County Jail on ,000 bond after allegedly driving drunk with a child in her vehicle. Gaston police claim the woman was driving a Ford Escape that struck two other vehicles Friday night. Police claim the Lowell woman got out of her Ford at some point after the alleged collisions and argued with one of the other drivers before leaving the area.

Gaston police say they learned the woman’s license plate number. Officers later appeared at the woman’s home and claim they smelled the odor of alcohol. Law enforcement says the woman’s car showed signs of damage. The woman was taken into custody at her home on suspicion of driving while impaired. Ultimately, the woman faces a string of charges related to the allegations.

At some point after the three car accident, police say witnesses called 911. Law enforcement says the witnesses said it looked like someone else was in the car at the time of the traffic accident. The Gaston Gazette says in a newspaper article that police determined the woman had a child in her car at the accident scene; however, the news report does not indicate what evidence police used to come to that conclusion.

When law enforcement took the woman into custody at her home, they say the woman resisted arrest. The woman faces charges of DWI, resisting arrest, child abuse, two counts of hit and run, reckless driving, no liability insurance and expired registration.

This blog reported in August that allegations of drunk driving with a child in the car become much more severe beginning in December. State law makes DWI with a child aboard a Level One DWI offense in North Carolina. That new law does not apply to allegations that occur prior to the December 1 effective date of the change in the law.

Source: The Gaston Gazette, “Police: Drunken driver hits two cars then flees with child in backseat,” Diane Turbyfill, Oct 23, 2011

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What was to be Manitoba’s first court-tested case of human trafficking ended abruptly Tuesday morning, with the Crown staying all charges and the defence accusing Winnipeg police of over-zealously charging the suspect.
Manitoba stories

The North Carolina Judicial Standards Committee has brought misconduct allegations against a judge after he suppressed evidence in a DWI trial. The committee looked into the suppression and accuses the judge of signing an order that he knew or should have known was “false or misleading.” The judge denies that he made any intentional misrepresentations when a judicial commission investigator looked into the matter. The judge believes all representations he made in the matter were truthful and accurate. The judge reportedly admits that some inaccuracies about the case were included in the prepared order.

In September, a man accused of violating the North Carolina DWI law pled guilty before the judge. Law enforcement alleged the accused driver showed a blood alcohol content reading of .17 during the DWI investigation. The judge sentenced the man to 12 months probation, 48 hours of community service and a fine.

The judge signed an order suppressing the DWI test results. The order reportedly was prepared by the attorney for the accused in the case. The prosecutor subsequently filed a complaint with the judicial commission concerning the suppression order. The judicial commission is expected to hold a hearing on the matter.

Under North Carolina law the legal limit to drive is set at .08. Readings of .08 or greater are presumed to show impairment for a driver. But North Carolina DWI law is more complex. A reading of .15 or greater creates harsher consequences for a person accused of DWI.

A person convicted of DWI with a breath test result of .15 or greater is subject to the requirement of installing an ignition interlock in their car. The interlock has a breath testing device that prevents drivers from starting their car if the driver has been drinking.

Source: Charlotte Observer, “Judge denies misconduct charges in DWI trial,” Gary L. Wright 6 May 2011

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The North Carolina Court of Appeals overturned several convictions last week in the 2009 DWI trial of a Charlotte, North Carolina, woman. The appellate court found that evidence presented in the 2009 trial was unreliable and prejudicial. Law enforcement never obtained a test to determine the defendant’s blood alcohol content to support charges arising out of alleged DWI.

The matter arose out of an alleged incident occurring in 2008. A man stopped on a bridge in Belmont to assist two stranded motorists. He got out of his vehicle. Police claim the defendant crashed into the group on the bridge, killing the man standing outside on the bridge. Law enforcement claims the defendant then fled the scene.

Belmont police say they found the woman 10 hours after the accident. Law enforcement did not conduct any test of the woman to determine her blood alcohol content. Law enforcement claims the woman smelled of alcohol.

At trial, prosecutors introduced evidence that the woman had four beers and two mixed drinks the night of the accident, but no testimony that the woman appeared impaired. The prosecutor called an expert to testify that the woman was drunk when the accident allegedly occurred. The expert used a formula that uses the average elimination rate for alcohol in an adult.

The expert multiplied the average elimination rate multiplied by the number of hours between the accident and initial contact with the defendant in the case to determine her blood alcohol level was twice the legal limit in North Carolina.

The expert based the conclusion of the odor of alcohol reported by the police officer. The expert admitted it was the first time he made blood alcohol conclusions based upon the odor of alcohol.

The Court of appeals reversed several convictions based upon the evidence. The appellate court also ruled that certain prior convictions for DWI dating back to 1989 were too old to be used as evidence against the defendant. Use of the stale prior convictions also denied the woman her constitutional right to a fair trial.

Source: WSOC Charlotte, “Family Angry After Convictions Overturned in Fatal Crash,” 19 Nov 2010

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