Don’t Let the State Burden Shift in a DWI

DWI MotionIt is a foundational rule of American jurisprudence that the Defendant never has an obligation to put on evidence, and that the burden of proving a case beyond a reasonable doubt always rests with the State. This is true in dealing with general crimes. It is also true in Driving While Impaired offenses, where the issue often comes down to whether the person was impaired.

In fact it is error for a prosecutor to argue to a jury that a Defendant has an obligation to put on evidence.

And a defense attorney can strike for cause any prospective juror who believes that the defendant has an obligation to testify or to offer evidence.

In DWIs, the issue of burden shifting comes up in the context of the chemical analysis.

In some cases, no chemical analysis is conducted, in which case the evidence usually relates to the smells, statements, and behavior of the defendant as observed that evening by the officer or lay witnesses.

But in many cases, the State is able to obtain, whether by blood or breath, a sample that yields to a chemical analysis. The question becomes, how should this chemical analysis be treated as evidence.

North Carolina courts have held that such evidence may be deemed sufficient – if a .08 or above – that the person was impaired, but that the BAC itself does not compel a guilty verdict.

In short, North Carolina courts in State v. Narron and State v. Simmons have merely reiterated that it is always the job of the judge or jury to determine whether the evidence is credible or reliable. The legislature or the prosecutor may never compel a guilty verdict because a number is admitted into evidence.

North Carolina law states that the “results of a chemical analysis shall be deemed sufficient evidence to prove a person's alcohol concentration.” N.C.G.S.

The phrase “deemed sufficient” seems to confuse some people, leading to the false conclusion that once the number has been admitted into evidence, the state has been “discharged of its burden.”

The state will then argue that once the state has been “discharged of its burden,” in order for the jury to doubt the BAC, the Defense must put on evidence showing that the BAC is somehow tainted, invalid, or subject to reasonable doubt.

This is the “burden shifting” that is an unconstitutional infringement on the Defendant's rights to a jury trial.

In order for the jury trial to mean anything, the jury must be able to evaluate all evidence, assess its credibility, and from the evidence determine the true facts in a case.

The state has only “discharged its burden” once the trier of fact – the jury or the judge – determines after deliberation at the conclusion of all evidence that facts have been proven and that those facts prove beyond all reasonable doubt that an element has been satisfied.

This is so elemental a point about the fundamental function of the jury in our system that to state otherwise displays an ignorance about the jury system. The pattern jury instruction for “function of a jury” says as much.

A defendant may remain absolutely silent in the face of all evidence, and the jury may find the defendant not guilty if they disbelieve the state's evidence with respect to impairment. The jury never has an obligation to convict, or to find any particular fact to be true (unless stipulated to by the defense) even though the defense remains silent.

To argue to the jury otherwise is error.

In addition, prima facie evidence does not “establish a fact” as some prosecutors argue. Prima facie evidence is sufficient to establish a fact, assuming that the jury believes the evidence. Juries decide what the facts are. Prosecutors can argue that a fact has been established, but that is mere argument, just as when a defense attorney argues that a different fact has been established.

Where mere argument turns into error is when a prosecutor argues that because he believes a fact has been established, the defense may only counter that supposed fact by offering countervailing evidence. Because the defense can never be compelled to offer evidence, this argument violates the Fifth, Sixth, and Fourteenth amendments.

With particular respect to a DWI, evidence that an hour after the stop of a car a person registered a .08 on an Intox EC/IR II may certainly be evidence that the person was impaired at the time of driving. But it may also be, consistent with other believable evidence, proof that the person was a .08 at the time of the test, but not of the driving.

“Push button” justice is to be abhorred. And burden shifting to the defense offends the constitution.


Damon Chetson

Damon Chetson is a Board Certified Specialist in State and Federal Criminal Law. He represents people charged with serious and minor offenses in Raleigh, Wake County, and the Eastern District of North Carolina. Call (919) 352-9411.