DWI Driving Detention – Knoll Problem

North Carolina appellate courts and statutory law err on the side of the release of defendants from custody on the least restrictive terms possible. The United States Constitution’s Eighth Amendment, too, preserves affordable and reasonable bail as a right, and requires an individualized determination of bail in criminal cases.

In certain cases, bail can be denied, but generally this applies in the most serious of cases, including murder, and, in the federal system, drug trafficking, violent crimes, and crimes linked to child pornography or terrorism.

But in general, and especially in the case of misdemeanors such as Driving While Impaired, affordable bail is presumed and, in many cases, a North Carolina magistrate, consistent with NCGS 15A-534, will set pre-trial conditions as a written promise to appear, and, if the breathalyzer was refused or a .08 or above was registered, suspend the driving privilege.

In certain cases, however, a judicial official – magistrate, or judge – must detain the person if, upon clear and convincing evidence, the individual poses a danger to himself, others, or property.

In cases where a judicial official has detained a driver under 15A-534.2 (the implied consent detention act), the judicial official must offer the individual the opportunity to have witnesses come to the jail to observe the person during the period of detention.

This is usually accomplished by asking the detainee for the names and phone numbers of people who could come to the jail to observe them during the period of detention. The principle at stake is that the detained individual has the right to gather information in his defense, and that since alcohol might dissipate from his system, the person needs to be able to have witnesses observe him before that happens in case others could potentially testify later at trial that the person didn’t appear to be appreciably impaired.

As soon as the danger dissipates, the person must be released according to the normal bail act – 15A-534. In cases of impaired driving detention, the person will often be detained for a number of hours without bond, and brought back before a magistrate later in the evening for a re-evaluation.

The Remedy

State v. Knoll and its progeny set out the test to determine whether the magistrate erred in detaining the individual, and what remedy, if any is available.

The test involves a two-part analysis. First, did the magistrate have clear and convincing evidence that the person was dangerous? And, second, assuming the magistrate erred, was the person prejudiced by the magistrate’s unlawful order to detain him?

In State v. Labinsky, the Court of Appeals found that the magistrate had insufficient evidence to order the defendant’s detention immediately following Labinsky’s arrest. But, the Court of Appeals found that Labinsky was not prejudiced because there were a number of potential witnesses – four friends at the Pitt County Detention Center – who were present throughout her detention and could’ve observed her. The defendant saw her friends, but declined to speak to them, and declined to use a free phone to call out to have the friends or other people come observe her. Because she failed to take advantage of potential witnesses who were at the jail, the Court of Appeals declined to find she was prejudiced.


What about a garden-variety DWI involving a high blow on the Intoxilyzer, some evidence of appreciable impairment, but little else?

The statute and case law seem to be clear. These facts are not sufficient to warrant detention. The issue is one of danger to the defendant, others, or property. Where a defendant is cognizant of her surroundings, polite and cooperative, is not suicidal, has no history of disobeying court orders, missed court dates, or violent crimes, there is no reason to suspect dangerousness.

There is no reason to assume that the person would drive again, especially if he’s been otherwise compliant throughout the process. Oftentimes, the person’s car is parked well away from the jail.

And yet judges, misapplying the statute, often interpret a high blow and some evidence of appreciable impairment – with nothing more – as evidence of dangerousness. This flies in the face of the actual language of the statute, and case law – see Labinsky – and is a bizarre conclusion.

Note well: It is not illegal in North Carolina to walk the streets with a .15 or greater BAC in one’s system. So long as one is not being disruptive or actually or potentially dangerous (beyond mere speculation) to himself or others, release is required consistent with the regular bail statute.


Prejudice is sometimes a more difficult issue because sometimes a driver, learning that they will not be released and given the usual late hour of the day, gives up and declines to provide names of family members or friends who could be called.

Sometimes the driver doesn’t have access to friends’ phone numbers because his cell phone was left back in his car.

And sometimes the driver encounters phones in the jail that don’t allow them to call out (which ought to weigh in the driver’s favor, but is often discounted by judges).


A fair interpretation of the bail statutes, consistent with the presumption of reasonable bail as demanded by the Eighth Amendment, would militate in favor of release.

It’s important if you’re ever caught in the unfortunate situation of being detained on a driving while impaired charge, that you politely insist on exercising all of your constitutional and statutory rights (even if you might not be successful in reaching a witness).

Doing so offers the best chance for a successful outcome, and gives your criminal defense lawyer the opportunity to make good arguments on your behalf – even if judges sometimes do not apply correct law.

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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.