After a recent North Carolina Court of Appeal decision, DWI probable cause is now in serious flux. Because this basic legal protection is so important, State vs. Lindsey demands review. So we begin with the fact pattern. Rather than stopping for bad or dangerous driving, the officer pulls Lindsey over for an expired registration. While the officer smells alcohol, there is no traffic violation, accident, or other driving indicator of impairment. Furthermore, the defendant is cooperative, steady on his feet, and able to follow instructions. In fact, there is not even slurred speech. Nevertheless, based on HGN testing and admission of prior drinking, the Court found probable cause to arrest.

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Less than a year and a half ago, the court of appeals held differently in an unpublished opinion. Rather, in State v. Sewell, red, glassy eyes, six of six clues on HGN, and positive PBT results was not probable cause? What? How do we stand now? Since there is an obvious conflict, legal scholars tell us Lindsey controls because Sewell is an unpublished opinion. In addition, there are a few other slippery distinctions. However, the real motivation appears to be the habitual dwi element in Lindsey. Consequently, the courts may have “thrown the baby out with the bath water.” While we all want drunk drivers off the road, we must protect our fundamental rights. Or at least make the attempt to do so.

Going Forward After Lindsey

Because Lindsey was a “very close case,” DWI probable cause remains an open question. Furthermore, probable cause cases will always turn on individual facts. Therefore, PC motions are still available, but DWI lawyers will have to evaluate cases carefully. In addition, clients with clean records will likely do better than someone with prior DWI issues. For example, if there is an accident or prior DUI arrests, no amount of clever lawyering will save you. And as always, the outcome will largely depend on which judge hears your case. So relax. There really has been no significant change in the law after all. Onward.