Let’s talk about Narron… and Simmons

Lady Liberty Gavel MedEarlier this week I wrote about a particularly silly attempt to shift the burden of proof in a driving under the influence trial.

To briefly recap: a prosecutor argued that once the .08 had come into evidence in a DWI bench trial, the state had “discharged its burden,” and that in order for the Defense to undercut the reliability of Intox machine, the Defense had to put on evidence of the results inaccuracies.

[As an aside, the brief that the prosecutor presented to the court argued that the case should not be dismissed, which was, at least as far as it went, correct. The proceeding was not at the dismissal stage, but at the guilt-innocence phase.]

As I explained in my earlier post, some prosecutors misunderstand the purpose of a jury, and of the holdings in State v. Narron and State v. Simmons.

Let’s Review Narron

In Narron, the defendant put on no evidence in his DWI trial. The defense argued that North Carolina’s DWI statute is unconstitutional because the phrase that a .08 or above shall be “deemed sufficient” (NCGS 20-138.1) created an impermissible mandatory presumption that the defendant was guilty, leaving nothing for the jury to decide and obviating the need for a jury.

The Court of Appeals rejected defendant’s argument, saying that the statute does not create a mandatory presumption that once a .08 or above is introduced, the defendant must be found guilty.

The Court of Appeals specifically noted that, “[i]n addition to technical challenges set out in the statutes, a defendant presumably could impeach the admissibility, credibility, or weight of the results of chemical analysis in traditional ways.”

In other words, the court rejected Narron’s argument that North Carolina’s DWI statute creates a mandatory presumption of guilt, and described the ways in which a defendant can challenge the Intox number.

Put more sharply: at the close of all evidence, a defense attorney always makes a motion to dismiss, citing a lack of sufficient evidence with respect to particular elements. A judge can rule that a charge (or a prong of a charge) may not be submitted to the jury because the state hasn’t met this threshold burden. Such rulings are rare.

North Carolina’s DWI statute, as interpreted by Narron, makes it clear that once the number is admitted, 20-138.1(a)(2) (the chemical analysis prong) must be submitted to the jury for its consideration, assuming, of course, that the other two elements – (1) “driv[ing] any vehicle” and (2) “upon a highway, any street, or any public vehicular area” – have been satisfied.

Imagine a Hypothetical

Imagine a DWI trial in which the police officer frankly states that there was virtually no evidence of appreciable impairment. (You’d have to also imagine a defense lawyer who failed to attempt to suppress for lack of probable cause.) Imagine, however, that at the same trial, the chemical analyst testified that a .08 was recorded by the Intox EC/IR II within an hour of the driving.

At the conclusion of all evidence, a judge in that situation would refuse to instruct the jury on the appreciable prong – 20-138.1(a)(1). What would the judge do with respect to the .08?

The judge would be required to instruct as to the .08, pursuant to statute and given the holding in State v. Narron.

As a matter of law, a .08 admitted into evidence requires that the jury be allowed to consider whether the defendant was guilty of a DWI owing to the 20-138.1(a)(2) even though there may be no evidence of appreciable impairment.

That is what the phrase per se means. It means there is presumptively enough evidence to convict under breath/blood prong even if there is no evidence to convict under the appreciable impairment prong.

What “Deemed Sufficient” Does Not Mean

While “deemed sufficient” in 20-138.1(a)(2) means the jury must be allowed to consider the .08. But “deemed sufficient” does not mean that the jury must find the defendant guilty, even if the defendant puts on no evidence at all and even if the defendant shows

A prosecutor is free to argue to the jury that the jury “should” convict. But a prosecutor may not argue that the jury is “required to” or “must” convict. And a prosecutor may not argue that the defendant is required to put on evidence that raises doubts about the .08 in order for the jury to find the defendant not guilty.

Per Se BAC Limits and DWI Cases

Raleigh DWI LawyerShea Denning has a hypothetical DWI jury instructions question at the UNC School of Government’s Criminal Law blog. She asks whether, in a per se DWI case, the judge should give the pattern jury instruction which includes the line: “The results of a chemical analysis are deemed sufficient evidence to prove a person’s alcohol concentration.”

Or, instead, she asks whether the jury should be told that the .08 or higher BAC should be treated like any other piece of evidence – that there is no presumption that is created by a .08 or above, and that the evidence ban be believed wholly, in part, or not at all.

As I wrote last week, the truncation of the Intox EC/IR II results in a DWI case in North Carolina creates at least one evidentiary problem in that it masks the potential margin of error produced by the breathalyzer machine.

Juries, therefore, are not given complete information about the two potential blows in a DWI case – and the difference can be as much as .029 between the two blows, with North Carolina statute and administrative code establishing that such a result would be admissible in court.

Moreover, juries are given very little information in a typical DWI trial about how the machine works, how it was calibrated, whether its internal diagnostics are affected by ambient air or external electronic interference.

In State v. Narron and State v. Simmons, the Court of Appeals in North Carolina essentially agreed in as much as current statute permits the results from the chemical analysis to be used as proof that the person had a BAC above a .08 at a relevant time after the driving, but does not require the jury to find that the burden has been met.

In other words, whether the BAC result exceeds the .08 at a relevant time after the driving, that result is entirely up to the jury to decide. The jury is not merely a cog in what I’ve heard Raleigh DWI lawyer John Fanney call “push button justice.” The jury gets to make up its own mind.

So in answer to Shea Denning’s question, the proper instruction, whether demanded by the state’s appellate courts or not, should at least add the provision that a .08 or above on a chemical analysis does not require the jury to find the person guilty, and can be believed or disbelieved by the jury along with all other evidence presented at trial.

The Intox EC/IR II: A Black Box

Imagine tax day comes around and the government asks you to submit all your receipts, your W2s, your bank statements, and other financial documents.

Imagine further that the government then inputs all of this material into a huge black box called The Tax Machine. After a few seconds, the machine spits out a number. Maybe it’s $5,000. Maybe it’s $25,000. Maybe it’s $75,000.

Whatever the number, the Government tells you that that’s the amount of money you must pay in taxes. Take it or leave it.

You ask, “how does the machine work?” And are told, “We put your documents in, pressed a button, and out came this number – your tax bill.”

You ask, “who made this machine, and how did they make it?” And you’re told, “Some company in St. Louis. It’s the only company that manufactures it. It doesn’t release the inner workings of the device. It doesn’t give the device to your accountant to check its accuracy.”

You ask, “who performed preventative maintenance on this machine?” You’re told, “Some guy in the last 90 days. But we don’t need to have him tell you what he did as part of this maintenance.”

You ask, “How many people’s financial records were analyzed by this machine before mine?” You’re told, “No idea!”

I imagine most Americans, whether they favor high taxes or low, would be horrified. It’s bad enough that the IRS today is so unaccountable, but it’d be horrible to contemplate an IRS that did not reveal how it arrived at numbers, and did not allow you to have your accountant double check how those numbers were generated.

This is basically the story of the Intox EC/IR II, the device used in North Carolina to analyze a person’s breath following a DWI arrest.

The Intox EC/IR II is a complete black box. I once called Intoximeters to try to purchase the machine, and was essentially told to buzz off. The fear, I guess, is that if a smart, aggressive criminal defense lawyer starts picking apart the inner-workings of the device, it might be shown to be something of a fraud.

In any case, North Carolina relies upon the device. Even worse, North Carolina DWI law allows the state to offer the results of this black box into evidence without any testimony about how the device was calibrated, how it operates, what it’s actually doing when it measures the breath.

It’s push-button justice. And it’s just not right.

* Note: I’ve borrowed the above analogy from an attorney I witnessed recently in Wake County DWI court. It’s an analogy I’ve used in jury trials. *

DWI and the Intox EC/IR II

Let’s imagine you had a device – we’ll call it a breathalyzer – into which you could have people blow and claim to definitively establish what that person’s Blood Alcohol Concentration (BAC) was for court purposes.

Let’s imagine that over time this device became obsolete, and you developed a new, better device. When describing the new, better breathalyzer, you’d need to be careful because you wouldn’t want to say that the old device worked poorly. So you’d say that the new device is better in certain respects, but the old device was also fine. It’s a tricky line to walk, especially if you’re Intoximeters, Inc., the manufacturer of the Intoxilyzer 3000, 5000, and Intox EC/IR I and Intox EC/IR II.

The Intox EC/IR II is the device currently in service in North Carolina, and used by police agencies throughout the state to determine whether a person’s breath has a BAC (or Breath Alcohol Concentration) of .08 or above.

The problem with the Intox EC/IR II is that only police officers (and, sometimes, prosecutors) are trained on how the device works and certified in the proper use of the device.

Since only one side in a DWI dispute has an expert who has been certified as a Chemical Analyst by the Forensic Tests for Alcohol Branch of the NC DHHS, that side can present itself as having the more “credible” expert to a jury in a DWI trial.

It has been difficult for defense lawyers to even purchase an Intox EC/IR II device, and when they do, they are often not provided the actual device with the actual manual used in their jurisdictions.

I, in fact, inquired about purchasing the Intox EC/IR II device last year and was told flatly by an Intoximeters representative that since I was a defense lawyer, I was not someone they’d sell to even though I was willing to pay the reasonable cost for the device and for training on the device.

The problem with the Intox EC/IR II device (as with any device that only the prosecution has access to) is that it is effectively a black box. Cross examining a police officer about the device is made more difficult if the defense lawyer has not been afforded the opportunity to inspect and be trained on the device.

Other jurisdictions have held that it is in the interests of justice that defense lawyers be permitted to be trained on the device used by the prosecution in criminal cases:

The Special Master also recommended that the State provide Alcotest training for defense attorneys and their experts similar to that provided for operators and coordinators. The State, understandably, objected to this recommendation and urges us to reject it. Although we reject it in part, defense attorneys should not be left without any means of learning about the device or its operation. Rather, we deem it to be in the interests of justice that some form of training be made available to defense attorneys to enable them to better prepare to represent their clients. However, we agree that the State should not be burdened with this responsibility. We therefore direct that Draeger make Alcotest training, substantially similar to that provided to Alcotest operators and coordinators, available to licensed New Jersey attorneys and their designated experts. The training shall be offered at regular intervals and at locations within the State of New Jersey, at a reasonable cost to those who attend.

State v. Chun, 194 N.J. 54, 943 A.2d 114 (2008), cert. denied, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008).

That would be a good policy in North Carolina DWIs as well.

Early DWI Tests and the Drunkometer

“The use of the Drunkometer assures an honest prosecution and eliminates the chance of error under the Drunk Motor Law,” a Detroit police official stated. Commentators often remarked that science had now entered the field. As a New York Times reporter wrote, “Science is replacing guesswork in obtaining evidence in drunken-driving cases.”

Lerner, Barron H. (2011-09-22). One for the Road: Drunk Driving since 1900 (pp. 24-25).

Since the invention of the automobile, police had searched for a device that could relatively inexpensively and scientifically determine whether the person driving was impaired. In part, as Barron Lerner describes in his book, this was a search designed to introduce objectivity into the question of whether the person was impaired. Throughout the history of drunk driving, police have conducted various tests – “field sobriety tests” – that are designed to determine whether someone is impaired based on their speech patterns, actions, or performance on these tests.

For instance, many police officers would have drivers repeat the phrase “Methodist Episcopal” to see if they could hear a drunken lisp or slurring of the speech. But given the subjectivity of these tests, they have always been subject to vigorous challenge by criminal defense lawyers who can show that the person either didn’t perform that poorly, the instructions were given incorrectly, or the tests don’t show what they purport to show.

In the 1910s, a Swedish physician developed a method of having police sample the blood from a driver’s fingertip to determine impairment levels. In the 1930s, an American biochemist developed the Drunkometer, a device into which the driver would blow. The driver’s breath would fill a balloon that would then be connected to a chemicals that would then change color according to the person’s intoxication.

Lerner explains that at an early stage, scientists agreed that relatively low levels of alcohol in the blood could cause impairment, although they exact range was subject to some disagreement. Scandanavian countries established fairly restrictive BAC requirements in the 1930s of between .05 and .08. These were among the first per se laws – meaning that the results of a chemical analysis that showed a BAC of more than a number was grounds for a finding of guilt.

But the United States took a more lenient approach, establishing three ranges and requiring no national standards until the 1980s. The first range of below .05 was basically a “not guilty” range where there would be presumptively no prosecution for driving while impaired.

The second range of of .15 meant that there should be prosecution for DWI.

In the middle range of .05 to .15, prosecution was only warranted if there were definitive other signs of behavior that confirmed the impairment.

This created a wide range within which people who were impaired might otherwise escape prosecution or conviction because of a permissive attitude with respect to how drunk driving should be prosecuted.

Handling a traffic stop

Most every driver in North Carolina will be pulled over at some point in his or her lifetime. This can be a very nerve racking experience. Blue lights come on; how fast must I pull over, where is a good location, what if there isn’t room to pull off, etc.? Though most traffic stops will not lead to investigations beyond your license, registration/inspection and maybe insurance the following is still good advice to follow to ensure you are not making the State’s attempt to prosecute you any easier.

Understand that you have Constitutional rights against unreasonable searches and seizures and the right to remain silent. There are no laws on the books that require you to answer an officer’s questions or to consent to them searching you or searching your vehicle (that’s not to say they can’t search you or your vehicle, only that you have the right to refuse to CONSENT to it). For traffic stops, you are only required to produce proof of Driver’s license, registration/inspection, and insurance.

Do’s

  • Do pull over as fast and as safe as is reasonably possible
  • Do wait for the officer to approach your car
  • Do leave your hands on the steering wheel until asked to do otherwise
  • Do be polite and respectful
  • Do follow orders (recognize what constitutes an ‘order’ and what is a ‘request’ or ‘consent’)

Don’ts

  • Don’t drive forever after the blue lights come on
  • Don’t jerk the car over when pulling to a stop
  • Don’t exit the vehicle UNLESS the officer orders you to
  • Don’t admit to anything
  • Don’t consent to any searches
  • Don’t agree to any tests

Exception – The Intox EC/IR, which is the breath test device used downtown on DWI arrests is what is called “Implied Consent.” There are consequences to refusing to give a breath sample just like there are consequences to providing the breath sample. Only you can decide whether to refuse or not and I would advise speaking with an attorney about your options before facing such a decision.

I understand how hard it can be to stand up for your rights when speaking with an officer, and I am not advising you to be mean or rude about it. OAlways to be polite and respectful, but to explain that you do not wish to answer any questions and do not consent to any searches without the advice or presence of a lawyer.

Minnesota Judge Rules Intoxilyzer Results Invalid

North Carolina no longer uses the Intoxilyzer 5000. It uses the Intox EC/IR II. But a Minnesota judge recently ruled that the Intoxilyzer results are invalid, which puts into jeopardy some 4,000 cases.

The reason comes down the source code – the computer code that powers the machine. Since the manufacturer, CMI of Kentucky, has refused to release the code to defense attorneys so they can determine whether it is reliable, the judge has questioned the device’s capability:

brams’ ruling criticized the Intoxilyzer’s Kentucky-based manufacturer, CMI, for withholding its source code from the state, which sued in federal court for access to the data. The state won, making the data available to defense attorneys who demanded it to determine whether the machine gave accurate blood-alcohol level readings.

“A less defensive posture and access to the code would likely have increased confidence in results and would have reduced the need for this protracted litigation.” Abrams wrote in his ruling.

Although reliable, the Intoxilyzer appears to be “severely challenged” by its limited data processing capacity, Abrams wrote. It “appears to be at the edge of its usefulness” because source code changes create additional problems and its code should be written for slower computers, the judge said.

North Carolina Driving While Impaired: Limited Driving Privileges

A North Carolina DWI (Driving While Impaired) arrest will result in an automatic “civil revocation” of a person’s driving privileges in North Carolina. If the person holds a NC driver’s license, the person’s license is revoked for 30 days and the person may not drive in any state, including North Carolina. If the person holds a NC driver’s license, the license will be physically confiscated from the person.

If the person holds a driver’s license from another state, the person’s driving privileges in North Carolina will be revoked for 30 days, but the person may drive in any other state outside of North Carolina. That’s because the initial civil revocation only affects the person’s NC driving privileges. If the person holds a driver’s license from another state, the police should not (although they sometimes do) confiscate the physical license.

If the person otherwise had a valid license at the time of the DWI, the person – in most cases – will be eligible to apply for a Limited Driving Privilege (LDP) during the initial 30 day civil revocation period. A limited driving privilege is always in the discretion of the presiding judge, so it is not automatic. But in cases where a person has an otherwise clean driving record and has complied with the statutory requirements, the person will most likely be granted a limited driving privilege on day 10 of the civil revocation period. The person’s LDP will expire on day 30 (in most cases) when the person becomes eligible to get back his or her driving license and full privileges to drive in North Carolina.

In order to apply for the LDP during the civil revocation period, the person must 1) get a Substance Abuse Assessment (here are some Wake County substance abuse providers) and pre-enroll in a treatment program. This will cost about $100 plus perhaps an additional $25 for pre-enrollment. The person must also 2) order a DL-123 form from the person’s insurance carrier. There’s no reason to explain to the insurance agent why you’re ordering a DL-123. Simply order it and have it sent to your lawyer (my fax number is (919) 887-7269) by fax or print one out. The person must also order a 7 year driving record from the DMV. This is used to show that the license was valid at the time of the arrest, and there were no recent DWIs. (Your lawyer should be able to order your Driving Record for you.)

You (or your lawyer) will need to fill out a few forms – a Petition for Limited Driving Privileges and an Order – for the 30-day Civil Revocation LDP. The privilege permits the person to drive for household or work or school-related purposes Monday through Friday, 6 am to 8 pm. The privilege also provides for extended LDP periods, but such extended LDP periods require separate proof to show that they’re necessary.

If the person drives on a revoked license without a valid LDP or drives outside of the LDP privileges, the person can be charged with a Driving While License Revoked (DWLR) which in North Carolina is a Class 1 misdemeanor. Therefore, it’s important not to drive without an LDP while the license has been revoked.

If your DWI results in a conviction (either by plea or after a trial), your license will be revoked for at least a year, as many as 4 years, and possibly “permanently”. Depending on the kind of revocation, you may be eligible for a LDP during the revocation period. Whether you get an LDP will depend on the number of DWIs you’ve had, the severity of the DWI you were convicted of, and the circumstances surrounding whether there was a “refusal” to blow into a the Intox EC/IR (breathalyzer machine) that’s used in North Carolina.

If you have any question regarding the LDP, feel free to contact Raleigh DWI Lawyer Damon Chetson at [#phone#] [#hours#].

For more on how to apply for a limited driving privilege, visit this link.

DWI: A common crime, an out-of-control industry

In the late 1970s, it became apparent to people not just in the United States but in other parts of the world that too many people were dying on the roads as a result of drunk driving.  Because the United States is such a large country and most people rely upon their cars to travel even short distances, these DWI deaths were more frequent in the U.S.

At the same time, national organizations, including Mothers Against Drunk Driving (MADD) were founded.  MADD was founded by the mother of a 13-year-old Texas girl who had been killed by a drunk driver.  Other organizations, including SADD, soon followed.  But MADD was the most powerful, helping to lobby for extensive new laws that would lower limits on the amount of alcohol someone could have in his system while still driving legally.

This BAC (Blood Alcohol Concentration) is set by the states, but is the same across the United States because of a federal highway law which limits the amount of highway funding a state can receive if it does not agree to a .08 BAC.  In North Carolina, the number is expressed in the law as the volume of alcohol per volume of exhaled breath.

Before the 1970s, the amount of permitted alcohol in the system was fairly high – .15 in some states.  But in the 1970s and 1980s, states started to lower the BAC permitted.  By the 1980s, most states had lowered the limit to .10, which is where it stayed until the 1990s, when states, pressured by the federal government, lowered the limit to .08.

Today, in North Carolina (and in all states) it is a “per se” violation of the law to drive with a BAC of .08 or above.  By “per se,” the State says that all it has to prove is that the person had a .08 BAC at a relevant time after driving on a highway or public vehicular area in order to find someone guilty of a DWI. This means that the state does not necessarily have to prove the person was driving badly.  The .08 is enough.

The Court of Appeals has recently held in North Carolina that a jury is not required to convict on a .08.  In other words, if evidence of a .08 (or .10 or .15 or whatever number) comes into court, but a jury thinks that the person was not the driver, or that there was too much delay in testing the person, or that the reading was an error, the jury can find the person “not guilty.”

So while a .08 is a per se violation of the law, the .08 does not require conviction.  (That may not make sense to a non-lawyer, but that’s how the legal world functions.)

If you go to news.Google.com and search for the term DWI on any given day, you’re liable to find thousands of news stories about various people who have been stopped and arrested for a DWI.  That’s because DWIs are far and above the most common serious crime in the United States.  They are common because they are the kinds of crimes that people commit without thinking about committing a crime.  They are serious because in most states, including North Carolina, the first offense is a crime.  And the first offense, if it results is a conviction, means the suspension of a license for a year, a criminal record, fines, community service, and in certain circumstances, jail.

In fact, the maximum jail sentence in North Carolina for a DWI is two years.  Most first time DWI defendants are not going to receive any jail time.  But, even where jail time is not a possibility, the other penalties, including the one-year revoked license, are expensive and unpleasant.

In addition, certain DWIs are punished even more harshly.  For instance, if you blew a .15 or above and if that number is admitted into court (a technical process involving verification of the number, your rights, and the proper functioning of the Intox EC/IR II machine), your license will be suspended for 1 year, and during that year you will have to have an Interlock device in the car.

I’ve described the DWI as a “common crime” but how has the DWI created an out-of-control industry?

In other countries, there are no-tolerance rules.  If you’re caught driving with any amount of alcohol in your system, you’re going to be convicted of a DWI.  But in the United States, we’ve created a hybrid system where you can legally drive with some alcohol in your system, but not “too much.”

In order to measure whether someone has driven with “too much” alcohol in his system, a whole industry – makers of the machines, including the Intoxmeter, the Intox EC/IR, the Alcosensor, and so forth – form a multibillion dollar economy to supply police agencies with these machines.

In addition, the criminal justice system itself extracts hefty fines upon conviction, other companies provide “substance abuse assessments” and treatment programs at high cost, and training companies have formed that train police officers, prosecutors, and even defense attorneys, like your humble writer, in how to either convict, or defend people against DWI charges.  These cost money as well.

Instead of simply out-lawing drunk driving completely, the United States has chosen a hybrid system, which I would argue is much more expensive, and less safe.

Does a .08 BAC compel a guilty verdict in a DWI in NC?

North Carolina’s DWI statute – NCGS 20-138.1 – provides the State with three possibilities in convicting a person of Driving While Impaired in North Carolina.  The State can either convict the person upon a showing that the person had a .08 or above Blood Alcohol Concentration at a relevant time after driving, that the person was appreciably impaired at the time he was driving, or that a chemical analysis of the person’s blood showed metabolites of a Schedule I substance.

The question for North Carolina courts (and juries) has been whether a .08 or above on the BAC requires conviction.  In other words, if the state has no other evidence of impaired driving except for the .08 or above reading, is a jury required to find the person guilty of a DWI (provided that the other elements of the DWI offense are proven).

In a recent case – State v. Simmons (No. COA09-862, Filed: July 20, 2010) – the North Carolina Court of Appeals held that a BAC alone does not require a guilty verdict.  The jury may convict on the basis of a .08 or above BAC, but is not required to do so. In that case, the prosecutor had argued in his closing that the jury, because the state had shown that the Defendant registered a .11 on the breathalyzer machine, was required to convict the jury.

But the Court of Appeals wrote:

Accordingly, although the results of the chemical analyses in this case were sufficient evidence from which the jury could have found that Defendant had an alcohol concentration of 0.11 and, thus, could have convicted Defendant of DWI under N.C. Gen. Stat. § 20-138.1 (a)(2), the results did not compel the jury to do so.

What does this ruling mean for the average DWI? It means that, if all the State offers is the number alone, your lawyer can argue that the judge or jury is not required to convict on that basis alone. Your lawyer can also argue other facts, including how long the test was taken after you were stopped, the fact that you were perhaps driving properly with no swerving or other signs of impaired driving, or the fact that you performed the Standardized Field Sobriety Tests properly.

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