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.

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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.