How do federal laws affect North Carolina criminal law?

Federal criminal laws can be used to prosecute people, even people who have been prosecuted by the Wake County District Attorney. That’s because federal laws frequently cover the same subjects and crimes as state laws.

But what about garden variety state laws? How are they affected by federal laws?

The clearest example are DWI laws and traffic violations. Since the 1980s, the federal government has sought to influence state laws with respect to Driving While Impaired violations and traffic offenses. Pressured by MADD and by national outcry over drunk driving, the federal government began passing legislation that essentially drives the way state laws are written, enforced, and prosecuted.

This is achieved because the federal government, by comparison, has a lot of money, and is able to distribute that money to states that accept federal standards. (Incidentally, this also applies to criminal laws that punish environmental violations as well.)

Let’s look at three specific instances.

The National Highway Traffic Safety Administration, the same organization that established the Standardized Field Sobriety Testing (SFST) and was behind the creation of the Drug Recognition Expert (DRE) certification, is required by Congress to withhold funding from states that do not adopt the .08 standard in DWI cases.

It’s not a fluke or coincidence that all states now have a .08 BAC standard in DUI or DWI prosecutions. In addition, 23 USC Sec. 164 creates minimum penalties for repeat offenders of Driving While Intoxicated or Driving Under the Influence laws. States that do not adopt these minimum penalties are themselves penalized by the federal government withhold much needed highway funds.

NHTSA, as mentioned above, also incentivized enforcement of certain offenses, including DWI offenses, by contributing money to the states based on the number of arrests and prosecutions for said offenses. For example, NOrth CArolina, and most states, have Governors Highway Safety Offices. These offices provide funding to local governments, like the Raleigh Police Department or the Wake County Sheriff’s Office, and host awards banquets for officers who have high rates of DWI arrests.

That money is not an insignificant part of state and local traffic enforcement budgets. And officers will often tout their awards when at trial in DWI or other traffic-related cases.

Finally, the federal government provides a source of funding for training. The clearest examples are the SFST and DRE programs. The DRE program is operated out of the International Association of Chiefs of Police (IACP), but most of the funding comes from the federal government through NHTSA. While experts routinely deride DRE as a program that has virtually no basis in actual science, the funding from NHTSA means that DRE is increasingly accepted by courts, whose judges are unschooled in the science (or lack thereof) behind DRE.

SFSTs are similarly unscientific, but SFSTs, including the so-called Horizontal Gaze Nystagmus test, are also similarly accepted as “scientific” and “reliable” by state courts. NHTSA provided much of the funding and support behind the widespread acceptance of SFSTs.

Although the federal government was designed by the framers to be a government of limited powers, the use of money to influence states has meant that in very significant ways the federal government sets the agenda in state criminal and traffic law.

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.