North Carolina DWI laws are already heavily slanted in favor of the State, but there are a few defenses available that DWI defense lawyers have used for years. One defense is that a person charged with DWI should be given an opportunity to have their blood tested independently to refute the State’s breathalyzer reading. Because blood alcohol levels dissipate over a relatively short period of time, it is critical to be released promptly for this second set of tests. If a defendant is unreasonably or unnecessarily held, that opportunity is lost forever.
This was the basic holding in State v. Knoll. The most recent post-Knoll case is State v. Townsend, which significantly weakens that defense. In this new case, the defendant was found to have failed to establish that he was actually prejudiced by a magistrate’s alleged statutory violations in setting conditions of pre-trial release, and, thus, could not establish a proper basis to dismiss the charges.
The defendant was stopped at a DWI checkpoint in Charlotte around 11:30 p.m and arrested. Approximately forty-five (45) minutes later, he submitted to breath testing at the scene in the county’s mobile testing van, registering a 0.10 and 0.09. Under NC DWI law, he was charged with the lower of the two readings, or 0.09%. The defendant was then transported by the arresting officer to the Mecklenburg County Jail and officially logged in at 12:56 a.m.
Almost two (2) hours later, the defendant appeared before a magistrate at 2:54 a.m. The defendant also signed an implied consent offense notice supposedly in front of the same magistrate at 2:34 a.m. which listed his wife’s name and her phone number. This part of the record is somewhat confusing as the implied consent notice form contains a certification from the magistrate that an initial appearance had been held.
Apparently, the form had been signed before the initial appearance. Regardless, the magistrate imposed a secured bond with conditions that the defendant was subject to a $1,000 bond but that the bond “may be unsecured to sober responsible adult with ID.” The court of appeals termed this rather conflicting hybrid bond as an “option bond” as no such condition is provided for or authorized by statute. The defendant’s wife came to the jail, and the defendant was finally released to her custody at 4:45 a.m., over five (5) hours after he was arrested and approximately four (4) hours after he entered the jail.
The defendant filed a Motion to Dismiss the charges pursuant to State v. Knoll, 322 N.C. 535 (1988), claiming that he was denied his right to communicate with counsel and family resulting in substantial and irreparable prejudice. He further argued that the Magistrate’s Order holding him under a $1,000 secured bond was without justification, was ordered prior to meeting with him, and was completed without making the required written findings as to why such conditions were necessary. The defendant’s motion was denied, and the NC Court of Appeals affirmed the lower court.
In its decision, the Court of Appeals found although that the Magistrate “may have committed a technical statutory violation,” by not making written findings as to the need for a secured bond, the Court nevertheless held that the defendant failed to show actual prejudice from that violation.
The Court also noted that the defendant was not required to post the secured bond but was released into his wife’s custody without any bond at all. As a result, the Court concluded the defendant could not show any resulting prejudice. It was also noted in the opinion that the defendant forewent several opportunities to call counsel or friends to observe him and/or help him to obtain independent chemical analysis. Thus, they deemed that there was no denial of his rights under Knoll.
N.C.G.S. Section 15A-534 is the bond statute. It requires that a magistrate impose at least one of the following conditions for release in writing:
- Release on defendant’s written promise to appear;
- Release upon defendant’s execution of an unsecured appearance bond in an amount specified;
- Release defendant into the custody of a designated person who agrees to be responsible;
- Release with a secured appearance bond in a specified amount; or
- Place defendant on house arrest with electronic monitoring.
After considering all circumstances, a magistrate is required to impose condition (1), (2), or (3) above unless it is determined that release will not reasonably assure the defendant’s later appearance as required, would pose a danger of injury to any person, or is likely to result in destruction of evidence, subornation of perjury, or intimidation of potential witnesses.
If such circumstances as outlined above are present, the magistrate has to require a secured bond and must note the reasons for so doing in writing. The so called “option bond” given in Townsend was essentially an “impaired driving hold” but was not accompanied by any findings to support such a hold. Perhaps the Magistrate imposed the bond to delay the defendant from being immediately released–until a sober, responsible adult could arrive.
However, if this was the situation, the appropriate action would have been for the Magistrate to issue an impaired driving hold pursuant to N.C.G.S. Section 15A-534.2 on the appropriate form with written findings which could then be reviewed later. If the Magistrate in Townsend had imposed a written promise or an unsecured bond at the initial appearance, the defendant would have been released nearly two (2) hours earlier, a difference that could be significant, especially in higher BAC level cases.
The concern with Townsend among Charlotte DWI attorneys is that this case represents yet another assault on one of the very few NC DWI defenses afforded under current law. Somehow a misstep by a Magistrate is characterized as a “technical statutory violation” and without more, a DWI defendant is not entitled to dismissal of impaired driving charges under Knoll? That is a very strange finding by an appellate court which should be focused on maintaining the presumption of innocence for all criminal defendants, even the dreaded DWI public menace.
If we apply this logic, is not a 0.08% BAC level a mere “technical statutory violation” as well? Most DWI clients we represent have never been in trouble before and are completely unfamiliar with their rights and apparent responsibilities under NC DWI law. It seems that under Townsend, a defendant must now aggressively seek and even demand their desire for independent chemical testing in order to show “real prejudice” before the court. Otherwise, a “right provided” can consequently become a “right lost” on the altar of DWI appeasement.