DWI in North Carolina... (LONG!)

[bdlarkin]

But, here's an interesting thing to keep an eye on: the Supreme Court has just heard a case out of Ky. where the police broke the door down, sans warrant, because they smelled reefer and heard noises inside. The argument to the Supremes is apparently that "reefer, coupled with noises inside, means the evidence might be destroyed, so the police were justified in not only acting without a warrant, but breaking the door down."

I hope the court doesn't buy that, but if it does - in Nick's situation, maybe the police will break the door down because the evidence (the BAC) is being "destroyed" as more time goes by.

Yeah I read about that case too. I have a feeling that they are going to come down on the side of its ok to break the door down.... But who knows. Interesting part about that case (if its the same one, sounds the same) was they broke down the WRONG door. They had an undercover do a buy. He told them to go in such and such door. They went into a different door. Found the suspect getting high. Bam busted.

Again, the distinction that can be drawn is that there is no evidence independent of your statements indicating anything. Corroboration is key.

So the only corroborating evidence in the original story is the crashed car. It was established that the road was icy. There are lots of other reasons for the crash other than drunk driving. Speeding for example.

IANAL (just married one). After your points I can see how a prosecutor could charge a case. But then again, laws are written to make bringing cases easy. But if I were on the jury... I don't know if I would vote to convict. And I'm the very definition of reasonable, just ask anybody. :wink2:

Just my 2 cents.

 

[silver-eagle]

Hey Nick,
Not just NC. About 20 years ago, a guy drove his chevette into my backyard at 1AM; through the guardrail, 4 panels of stockade fence, and stumbled out and across the road. The responding police took witness statements of who we all saw. They appeared to know the individual. Wife claimed she was driving. She apparently took the hit for leaving the scene.
It happens.
No personal injury. The police don't necessarily have the time to invest in prosecution. Let's hope next time it happens, he isn't taking out your frontend.

 

[bdlarkin]

but your average juror is going to say, "sure, Mr. Slick Pennsylvania Lawyer, sure" ), and you've got a prima facie case.

Isn't it Nick that's out of town in this case, Mr. Prosecutor? All the others in the scene are locals and didn't want to call the cops. Neighbors of the defendant. In a small rural town.

 

[cherokeeflyboy]

FWIW, there were just over 16,000 DWI arrests in North Carolina in 2010.
The North Carolina Highway Patrols' operation's "Booze it and lose it" and" click it or ticket" are NOT playing around!

 

[steingar]

We saw an SUV parked on someone's front porch in Philadelphia. DUI.

 

[Obi Heed Kenobi]

Yeah I read about that case too. I have a feeling that they are going to come down on the side of its ok to break the door down.... But who knows. Interesting part about that case (if its the same one, sounds the same) was they broke down the WRONG door. They had an undercover do a buy. He told them to go in such and such door. They went into a different door. Found the suspect getting high. Bam busted.

Is that what it was? Somehow, I got the impression that the police were just walking by the door (maybe on their way to the other aptmt.), smelled reefer, and knocked the door down.

If it's a case of mistaken address, that brings up another legal doctrine of "good faith." The gist is that if the police are acting in good faith, suppressing evidence would serve no purpose, even though there was an undisputed violation. If you're interested, a recent case discussing it is U.S. v. Some Kind of Fish (can't remember the guy's last name, I think it was either Herring or Cod - seriously). I don't like it, I don't agree with it, but it exists nevertheless.

Other than pointing out the case, further I won't say because it's probably SZ material.

So the only corroborating evidence in the original story is the crashed car. It was established that the road was icy. There are lots of other reasons for the crash other than drunk driving. Speeding for example.

You've got the crashed car, the incredibly erratic driving, becoming irritable/confrontational when the police are called, and leaving.

Taken individually, I agree that none of them would be enough. Add them all together, though, and it's a pretty strong case....

IANAL (just married one). After your points I can see how a prosecutor could charge a case. But then again, laws are written to make bringing cases easy. But if I were on the jury... I don't know if I would vote to convict. And I'm the very definition of reasonable, just ask anybody. :wink2:

Just my 2 cents.

So am I. My mom says so.

Congrats on getting married, by the way.

PS - I'm neither prosecutor nor defense attorney. In this setting, I'm just a member of the public for all intents and purposes.

 

[weilke]

I was flabbergasted. In New Mexico, they'd have called the judge in the middle of the night to get a warrant for this one, considering they had the following evidence:

So they get their warrant and 3-4 hrs later they go into the house and drag the guy to the hospital for a blood test. He bonds out the next morning. Come the first hearing he will tell the story 'how he hit the pole, was disoriented, wandered home and had to pour himself a couple of glasses of vodka to calm his nerves' (post accident consumption). Without more sophisticated (expensive) analysis of alcohol byproducts and metabolites, there is no way to disproove his assertion. So the cop was right, once he made it home, he was good. The habitual drunkards know that from the last 12 times they got busted.

It doesn't allways work. We had a case locally. Chick with a minivan going 70 took out a bicyclist and killed him instantly. From the description of the minivan, the deputies already knew what doors they had to knock on. Another lowlife answered the door and inadvertently gave up that she was at the home. Officers went into the house and took her to the hospital to get blood samples. The jury found her story of post-accident consumption to be 'not believable' and convicted her of the homicide charge (12 years).

 

[alaskaflyer]

Great thread. But the realistic answer is most officers aren't going to wake up a judge to get a search warrant in the middle of the night for a non-injury accident. Especially if you already have one or two slam dunk charges as it is.

Doesn't mean the officer can't knock on the door and see what happens, though

 

[weilke]

Doesn't mean the officer can't knock on the door and see what happens, though

Knock on the door and yell 'beer delivery'. You ARE allowed to lie, right :wink2: .

 

[Tom-D]

The DUI suspect still gets to pay,, for a wrecked car, and a phone pole, and the wrecker..

and maybe his insurance policy has a no drinking clause. and the police must put the reference to drinking by the witness. So I don't think the drunk is over this yet.

 

[Tom-D]

The DUI suspect still gets to pay,, for a wrecked car, and a phone pole, and the wrecker..

and maybe his insurance policy has a no drinking clause. and the police must put the reference to drinking by the witness in the accident report, So I don't think the drunk is over this yet.

 

[bdlarkin]

Is that what it was? Somehow, I got the impression that the police were just walking by the door (maybe on their way to the other aptmt.), smelled reefer, and knocked the door down.

It's an issue of Exigent Circumstances. Case is Kentucky vs. King. The Volokh Consipiracy blog did a writeup:

http://volokh.com/2011/01/05/police-created-exigent-circumstances-thoughts-on-kentucky-v-king/

Congrats on getting married, by the way.

It was a long time ago (almost 16 years). It's no big accomplishment at this point.

 

[bdlarkin]

The DUI suspect still gets to pay,, for a wrecked car, and a phone pole, and the wrecker..

and maybe his insurance policy has a no drinking clause. and the police must put the reference to drinking by the witness. So I don't think the drunk is over this yet.

Are there insurance policies with "no drinking" clauses? I know that rental car agreements have things like that but I wasn't aware of standard collision policies like that.

 

[Obi Heed Kenobi]

It's an issue of Exigent Circumstances. Case is Kentucky vs. King. The Volokh Consipiracy blog did a writeup:

http://volokh.com/2011/01/05/police-created-exigent-circumstances-thoughts-on-kentucky-v-king/

Well, exigent circumstances have long been an exception to the warrant requirement. Basically, if you're a police officer and you hear someone in a home, say, roughing up his wife, you don't need a warrant. Same if there's a phone call of a heart attack, a report of gunshots in a house, or something like that. Basically, immediate concerns over human life or severe injury.

And that's fine - when life/limb are at stake, I'm OK with it (as long as it's used in good faith).

But under these circumstances? I just don't see it as appropriate. I don't see the need to enforce criminal laws that don't involve any immediate risk of bodily harm as being appropriate to waive the warrant requirement.

It was a long time ago (almost 16 years). It's no big accomplishment at this point.

Whoops. I read your post as saying you just got married. Reading comprehension = not good.

 

[gismo]

Isn't this the way it used to be in the "old days" which I sometimes hear people longing for? No harm, no foul as long as someone isn't hurt? Just let the guy dry out. I'm not saying this is good or bad but I don't think it would be that unexpected in a rural area of North Carolina where everyone knows everyone else.

About 30 years ago I was rear ended by a seriously drunk driver. The impact was great enough that it ripped the seats loose in my car and completely collapsed the trunk into the (thankfully empty) back seat. I had been stopped at a red traffic light for a couple minutes before the crash and the impact knocked my car (with brakes on) most of the way across the intersection but fortunately it was late enough at night that the crossing traffic was light and no further collisions occurred. The other driver got his car running after the crash and attempted to drive away but was unable to get very far due to the significant damage to the front of his car. Once he got out of the car he tried to blame me for stopping so quickly (remember I was stopped for a couple minutes) and was pretty much acting like a falling down drunk. Two cars who witnessed the accident gave statements to the police supporting my version of the events. The driver of another vehicle stopped and waited for the police to come so she could give a statement to the effect that she had observed the drunk driving erratically for the mile prior to the accident and that she expected him to crash soon after she got him to pass her. The drunk had no insurance even though it was required by state law. When the police showed up the officer was obviously sympathetic to the drunk and instead of taking him to jail he took him home and the guy didn't even get a ticket (I learned that later from my insurance company who had to pay for the repairs). If I knew back then what I know today I would have made the local media aware of the case but I don't think it's likely that any cop today would let something like this slide.

 

[weilke]

But under these circumstances? I just don't see it as appropriate. I don't see the need to enforce criminal laws that don't involve any immediate risk of bodily harm as being appropriate to waive the warrant requirement.

In the vehicular homicide case I mentioned earlier, the officers went into the home without a warrant, which of course became an issue at trial. Somebody had called a bomb threat into the courthouse that morning and the judge was not available. Rather than letting the drunk get off on the homicide, they went in without a warrant. Given the bomb-threat, the court allowed the warrantless arrest to stand (don't recall the exact legal reasoning).

 

[alaskaflyer]

In the vehicular homicide case I mentioned earlier, the officers went into the home without a warrant, which of course became an issue at trial. Somebody had called a bomb threat into the courthouse that morning and the judge was not available. Rather than letting the drunk get off on the homicide, they went in without a warrant. Given the bomb-threat, the court allowed the warrantless arrest to stand (don't recall the exact legal reasoning).

Probably exigency in that the blood alcohol evidence would be lost over time.

 

[Everskyward]

About 30 years ago I was rear ended by a seriously drunk driver. The impact was great enough that it ripped the seats loose in my car and completely collapsed the trunk into the (thankfully empty) back seat. I had been stopped at a red traffic light for a couple minutes before the crash and the impact knocked my car (with brakes on) most of the way across the intersection but fortunately it was late enough at night that the crossing traffic was light and no further collisions occurred. The other driver got his car running after the crash and attempted to drive away but was unable to get very far due to the significant damage to the front of his car. Once he got out of the car he tried to blame me for stopping so quickly (remember I was stopped for a couple minutes) and was pretty much acting like a falling down drunk. Two cars who witnessed the accident gave statements to the police supporting my version of the events. The driver of another vehicle stopped and waited for the police to come so she could give a statement to the effect that she had observed the drunk driving erratically for the mile prior to the accident and that she expected him to crash soon after she got him to pass her. The drunk had no insurance even though it was required by state law. When the police showed up the officer was obviously sympathetic to the drunk and instead of taking him to jail he took him home and the guy didn't even get a ticket (I learned that later from my insurance company who had to pay for the repairs). If I knew back then what I know today I would have made the local media aware of the case but I don't think it's likely that any cop today would let something like this slide.

That sux. I would have thought that even in the old days they would have prosecuted him since he did damage to your car.

 

[kkoran]

You put that in front of a jury, and I'd say it's a 90% chance of a conviction. When it comes to "numberless" evidence, that's as good as it gets; and I don't think there are too many people out there who would say that this guy wasn't absolutely trashed.

Even if the jury made up of people like the driver and the folks whose yard he landed in?

 

[Obi Heed Kenobi]

Even if the jury made up of people like the driver and the folks whose yard he landed in?

They wouldn't make it onto the jury - unless they lied to get onto it.

 

[Obi Heed Kenobi]

In the vehicular homicide case I mentioned earlier, the officers went into the home without a warrant, which of course became an issue at trial. Somebody had called a bomb threat into the courthouse that morning and the judge was not available. Rather than letting the drunk get off on the homicide, they went in without a warrant. Given the bomb-threat, the court allowed the warrantless arrest to stand (don't recall the exact legal reasoning).

Probably exigency in that the blood alcohol evidence would be lost over time.

What Richard said. That's about as close a possible call as it gets, though - there are a lot of judges out there that would say, "no, you need a warrant for that."

 

[weilke]

What Richard said. That's about as close a possible call as it gets, though - there are a lot of judges out there that would say, "no, you need a warrant for that."

Not if you are judge in a small town/county and you wish to get re-elected......:wink2:


The locals were quite upset about the whole thing, I think the perpetrator was safer/better of in the state pen.

 

[bdlarkin]

But under these circumstances? I just don't see it as appropriate. I don't see the need to enforce criminal laws that don't involve any immediate risk of bodily harm as being appropriate to waive the warrant requirement.

Yeah, especially since the exigent circumstance was caused by the police itself. They could have arrested the real drug dealer guy when he made the buy. They screwed up, but they found another guy, so might as well bring him in anyway. Not a total loss.

If the police can cause an exigent circumstance to waive the 4th amendment clause whenever they want, then there isn't a 4th amendment anymore is there?

I expect that Kentucky v King will be decided very narrowly.

 

[bdlarkin]

They wouldn't make it onto the jury - unless they lied to get onto it.

LOL, like that doesn't happen.... What's the saying? Juries are made up of people too stupid to get out of jury duty?

 

[Obi Heed Kenobi]

Yeah, especially since the exigent circumstance was caused by the police itself. They could have arrested the real drug dealer guy when he made the buy. They screwed up, but they found another guy, so might as well bring him in anyway. Not a total loss.

If the police can cause an exigent circumstance to waive the 4th amendment clause whenever they want, then there isn't a 4th amendment anymore is there?

I expect that Kentucky v King will be decided very narrowly.

I agree. The article I read about the oral arguments suggested that, too. It'll be 5-4, maybe 6-3 (unless the new one doesn't participate).

LOL, like that doesn't happen.... What's the saying? Juries are made up of people too stupid to get out of jury duty?

Yeah, yeah, I know.

Which brings up a broader point, actually. We all like to complain - esp. after aviation verdicts - about "how could the jury do that." At the same time, how many of us would complain about getting the summons, be in a crappy mood the morning the trial started, and do our best to get off the jury once selection started?

Don't get me wrong, nobody wants to do it - but, out of everything out there, being on a jury might be the most direct input we ever get into how we want our communities to be run. Which is something worth remembering if you ever get the jury summons....

 

[Kelvin]

I must be a flaming dumba**...I got a jury summons for the first time a few weeks ago and I am looking forward to the opportunity.

I agree. The article I read about the oral arguments suggested that, too. It'll be 5-4, maybe 6-3 (unless the new one doesn't participate).

Originally Posted by bdlarkin
LOL, like that doesn't happen.... What's the saying? Juries are made up of people too stupid to get out of jury duty?

Yeah, yeah, I know.

Which brings up a broader point, actually. We all like to complain - esp. after aviation verdicts - about "how could the jury do that." At the same time, how many of us would complain about getting the summons, be in a crappy mood the morning the trial started, and do our best to get off the jury once selection started?

Don't get me wrong, nobody wants to do it - but, out of everything out there, being on a jury might be the most direct input we ever get into how we want our communities to be run. Which is something worth remembering if you ever get the jury summons....

 

[ScottM]

I must be a flaming dumba**...I got a jury summons for the first time a few weeks ago and I am looking forward to the opportunity.

Good for you!

When I get them I look at them as a chance to help my community. That some people work their butts off to get out of jury duty tells me that they really only care about themselves. Kudos to you!

 

[Obi Heed Kenobi]

I must be a flaming dumba**...I got a jury summons for the first time a few weeks ago and I am looking forward to the opportunity.

Good for you!

When I get them I look at them as a chance to help my community. That some people work their butts off to get out of jury duty tells me that they really only care about themselves. Kudos to you!

I'd love to be on a jury, but probably won't ever get the opportunity....

What I tell people who ask is that being on a jury is their opportunity to decide what will, or will not be, tolerated in their community. Now, that's not strictly true, but it's 99.9% true.

 

[bdlarkin]

I must be a flaming dumba**...I got a jury summons for the first time a few weeks ago and I am looking forward to the opportunity.

I agree. The only time I was summoned for a jury, was when i was in college over 20 years ago, and was obviously out of town and couldn't serve.

I'd serve if summoned.

 

[jesse]

I would gladly serve on jury duty. Not sure if I'd actually make it on the jury though - I have some pretty firm views on some touchy subjects.

 

[Sac Arrow]

I'm not familiar with New Mexico law, but I do know that in California, for a DUI conviction to stand, the arresting officer must have witnessed the driver to have been driving - even an officer walking up on a stationary car with a drunk at the driver's seat, key in the ignition and engine running doesn't cut it. And there is case law precident on that.

Technically, in the OP's case (if it were in California) a citizen could attempt to affect a "citizens arrest" and transfer the driver to the custody of law enforcement officers, but citizens' arrests are typically not validated by the court, at least for the purpose of treating the citizen as an arresting officer.

I don't condone drunk driving either. But the standard is arbitrary - there are some people that can blow a .10+ on the breathalizer and still be safer that a newly licensed teenager, or an 80 year old with slow reflexes, and others that shouldn't be driving with any level of alcohol at all. Quite honestly, there are people that just shouldn't be on the road for any reason, period.

Personally, if it were up to me, I would prosecute people heavily for UNSAFE driving, regardless of the circumstances, vs. just specifically for DUI. If it were my decision, the drunk driver in the OP's original post would have been arrested for property damage and public endangerment, and assessed the respective penalties.

 

[Gary]

I must be a flaming dumba**...I got a jury summons for the first time a few weeks ago and I am looking forward to the opportunity.

Good for you! I've only been on two, one county and one Federal. Most times I get rejected. Was a fascinating experience, particularly the Federal case. Learned a lot about the law, people's perception of facts and dynamics among he jurors.

Gary

 

[N801BH]

Last night, my wife and I were on our way out to go buy some speaker wire to install our surround sound, and we pulled up the end of the road and were almost nailed by a car driving at least 75mph in a 35mph zone. He was swerving so much he actually came onto my road, and missed my front end by about a foot. I think my presence scared him, because he overcorrected, hit the side of the road (which was covered in ice), lost control, went flying off the side of the road, hit a road sign, a mailbox, and a power pole, and came to rest, upright, at the bottom of the pole.

We immediately drove over to make sure he was alright, and he was very slow to respond. The people that lived at the house with the pole in their yard came out as well to see how he was doing.

The man got out of the car and stumbled around, so I figured he was messed up from the accident. I offered to call the police, and the man started getting belligerent, telling me that he didn't need some "Out of towner" trying to ruin his life.

Perplexed, I put down my phone and helped the guy away from the car, reached in, and turned the car off in case anything was leaking. As I helped him down, I could smell it....this guy was loaded to the gills, and was in condition to have been driving. Every time I tried to pull out my phone, the man got mad at me and I thought there might be an issue.

I walked over to the family that lived there and relayed what was going on. The man and woman of the house said something along the lines of "Look, I don't want to see anyone get in trouble, lets just let him sober up, and we'll call in the morning."

Luckily, the next door neighbor, who was described as "crotchety" insisted we call the police, and the police said they'd be by in a few hours to investigate (we are at the far edge of the county, it wasn't laziness, it was just a really long drive). The drunk man heard the commotion and started walking.

We gave our information and then proceeded to the store to finish our shopping. As we returned, we saw the police cars out front of the house, doing their investigation. I stopped and explained to the police officer what I saw, and what happened. He asked me for a description of the guy, and when I gave it, he said "Yep, that's the guy. He lives right down the street, I tried to get him to come out, but he refused. Looks like since he got home first, he's gonna get away with this one, there's not much I can do."

I was flabbergasted. In New Mexico, they'd have called the judge in the middle of the night to get a warrant for this one, considering they had the following evidence:

1. His car, with his plates, at the scene of the accident
2. Three sets of families giving eye witness descriptions of the man
3. Two eyewitnesses to the accident

Is DWI less of an issue out here? It blew my mind that both the police and the family who owned the property weren't too concerned with busting a drunk driver. I tried to explain to my wife that this is probably because we don't have people dying left and right from DWI out here like we did in New Mexico, but is that true?

Moreover, can you really get away with DWI because you got home before the police could find you?

\\\

Hmm.
My take is.
1- NC is the home of moonshine and all its ugly side effects.. When you drive ALWAYS keep a eye out for intoxicated drivers. For some reason they think it is a sport to see how drunk they can get and still drive.

2- Your biggest and possible ongoing problem is his statement of" Out of towner trying to ruin his life" That means he knows darn well who you are and is going to be on a mission to ride your butt every chance he gets from here on.... Be careful sir.....

Just my humble opinion..

Ben.

 

[Lawreston]

If I knew back then what I know today I would have made the local media aware of the case but I don't think it's likely that any cop today would let something like this slide.

) Been there - done that! April 20, 1989: While pulling out of a newly-green light at a 4-way intersection I was broadsided by a vehicle coming up the hill on my left. The civil case went on for over three years and included participation by Maine's governor and Maine's attorney-general. During the three years I made the local police dept.(mine) look foolish via information publicized by my letters to the editor. And for that I was a marked man, often tailed by the local cruisers.

Understand that the other driver was a police officer from a distant town. And though my insurance was ready to pay because "He's a police officer and you're not; it's your word against his," I pursued the case on my own.
The interesting part, about nine months into my digging, was the telephone call I received from someone who wouldn't identify himself. But the information was that my local PD had called the distant PD after the accident and said, "We have one of your officers here. He's been drinking and has broadsided another vehicle. What do you want us to do about it." That caller, whom I managed to track down, had been the dispatcher who took the alleged call but he was no longer with the same department. His information lead to more than a handful of depositions which included the other driver and his father-in-law, the chief of police. Maine's governor was aware of the state-level investigation -- I wrote a good letter -- and I soon received a call from the attorney-general who indicated, "The matter of your case has come to my attention. I am concerned that the investigation done by our chief of investigations was not completed in an objective manner. Accordingly, I am taking personal charge of a new investigation."

After more than three years I won -- big -- though as noted previously I was a tailed man for a couple years until one night I was stopped while on my way home. Knowing I was not guilty of any offense I royally chewed-out the officer; I really blew him off and told him to go back and tell the chief to get you ******* guys off my a$$ because I'm sick of it."

With construction going on in my business location, one of the workers asked me if I knew officer so-and-so. It seems the worker's wife was working in the town office(where the PD was located) and the police chief had put out the word: "Leave Mr. Crute alone." Memories linger, on both sides, I'm sure.

But I hate drunk drivers.

HR

 

[Let'sgoflying!]

everyone gets their data point, here is mine:

Loc: remote rural area, Texas.

In years past, with only local law enforcement (Sheriff), the youngsters caught driving drunk would be taken home to their parents who would likely thrash them - never a court case. Most locals, esp transplants, weren't thrilled.
Now, we are inundated with state troopers; you are much more likely to be answering to them, and it appears the law is followed much more to the letter. State troopers generally get moved around a lot and are probably not 'best pals with little Johnny's dad', so there are more likely to be court cases.
Actually, the kids are better behaved because they know what might happen now.

PS about 'entering a home to extract a person' - I would say without a warrant and a police officer which the accused readily recognized, in this area, person or persons would end up full of small caliber holes before the accused was forcibly removed from their home.

 

[SkyHog]

\\\

2- Your biggest and possible ongoing problem is his statement of" Out of towner trying to ruin his life" That means he knows darn well who you are and is going to be on a mission to ride your butt every chance he gets from here on.... Be careful sir.....

Just my humble opinion..

Ben.

I don't know, I assume it was either my lack of accent, or my big bright yellow New Mexico license plates that gave me away. I certainly don't fear that this guy will find me and beat me if that's the insinuation, if he even remembers what I look like, he's certainly not going to find me (I'm a few turns away from where this all went down).

Edit: Plus, he wasn't really a violent guy, he was older and just drunk and not happy that he destroyed his car. Nice PT Cruiser. Looked like an airplane when it left the ground. heh.