On the heels of several laws that have toughened North Carolina DWI laws comes a news report about people who are charged twice in a single night for a DWI.
The report, citing State v. Knoll, notes that magistrates are incentivized to release DWI defendants from custody quickly after arrest because, if they don’t, the defendant may later argue that he was prevented from collecting evidence in his defense.
The report is about a Holly Springs man who was arrested for a DWI, blew a high BAC, and then was released by the magistrate. After his release, he got into his car again, and was re-arrested on a second DWI.
The report implies that State v. Knoll encourages magistrates to let drunk people back onto the road, and ignores the fact that the North Carolina General Assembly already addressed that case in the 1990s.
N.C.G.S. 15A-534.2 provides that:
If at the time of the initial appearance the judicial official finds by clear and convincing evidence that the impairment of the defendant’s physical or mental faculties presents a danger, if he is released, of physical injury to himself or others or damage to property, the judicial official must order that the defendant be held in custody and inform the defendant that he will be held in custody until one of the requirements of subsection (c) is met; provided, however, that the judicial official must at this time determine the appropriate conditions of pretrial release in accordance with G.S. 15A-534.
This provision permits the person to be released into the custody of a sober person, or be held until such time as he himself is sober. In addition, this provision requires the magistrate to inform the defendant of his right to have witnesses come to the jail or detention facility to observe him, thus satisfying State v. Knoll.
In essence, this provision is exactly what the news report suggests should be enacted.