Apr 5, 2013 | DUI & DWI, Uncategorized
In the North Carolina decision, Brower v. Killens, 122 N.C. App. 685, a driver who was accused of DWI, sought judicial review of revocation of his license by the DMV following arrest for driving while impaired. The North Carolina Superior Court in Guilford County found that the DMV was collaterally estopped (the issue at hand was precluded) from re-litigating the determination of whether there was probable cause to arrest that had been made in the criminal case against the driver. The DMV appealed, and the court of appeals held that because the DMV was in privity with the D.A., who prosecuted the criminal case for purposes of the probable cause determination, the collateral estoppel doctrine applied.
So, for the case at hand, Alexander Killens, the commissioner of the North Carolina Division of Motor Vehicles, appeals an order from the trial court finding the DMV was precluded from litigating the probable cause to arrest Stephen Brower again. The circumstances surrounding the case are that on February 10, 1994 Brower was stopped by an officer while traveling on the Interstate 40 in Guilford County. Thereafter, he was arrested for driving while impaired. The officer then recorded that Brower refused breath analysis.
Brower lost his license as a result of the arrest; he then requested, and received, an administrative hearing to contest the automatic license revocation. The revocation was upheld, and Brower thereafter instituted an action for de novo review (or “legal error” review). At trial, Brower challenged his arrest for lack of probable cause, and after a full hearing, the trial court, concluded that the Officer had insufficient probable cause. The trial court then suppressed the tainted evidence (the breathalyzer results) and granted a motion to dismiss.
Brower amended his complaint in the second case to assert collateral estoppel as an affirmative defense to the license revocation. The trial court thereafter found that the DMV will not be permitted to re-litigate the issue of whether or not the officer had probable cause to arrest Brower for driving while impaired. Finally, on appeal, the DMV contended that the trial court erred by: (1) concluding the DMV was collaterally estopped from re-litigating the probable cause issue; and (2) signing an invalid order.
The DMV argues that the Court’s decision in State v. O-Rourke, 114 N.C. App. 435, is dispositive. In O’Rourke, the court considered whether the State was collaterally estopped from introducing evidence of the defendant’s refusal to submit to a blood alcohol test because the DMV had previously concluded defendant did not willfully refuse the test. The factors the court focused on in this decision in determining whether the District Attorney, and the DMV were in privity (or parties in interest here) were: (1) that the criminal proceeding directed by the District Attorney and the civil licensing hearing protect different interests; and (2) the DA had no role in the administrative proceeding, and thus was not fully protected.
Subsequent to O’Rourke, the Supreme Court found that it was actually the people of North Carolina, rather than the DA’s, who are the real parties in interest in criminal proceedings. So, we remain bound. Therefore, the District Attorney is not collaterally estopped from re-litigating issues previously determined in license revocation proceedings.
However, the case at hand, Brower, does not implicate the same concerns of non-representation because the DA’s office was involved from the inception of the criminal case against Brower. So, here we are not bound by the shackles of O’Rourke.
In State v. Lewis, the State of North Carolina, through its New Bern Child Support Agency, filed a civil proceeding against defendant seeking indemnification for public assistance it rendered two of the defendant’s minor children. Defendant alleged he was not the father; however, was adjudicated the natural father in a prior criminal action. Therefore, the defendant here was estopped from denying paternity. In reaching its holding, the Lewis Court recognized the State instituted both the criminal and the civil proceedings; being more than a nominal party, pursuing the same interests in both cases.
In Killens, the state instituted both the criminal prosecution for driving while impaired and the civil license revocation hearing. The State represented the same interest in both actions that of the citizens of North Carolina in maintaining safe roadways. Further, the DA was also involved in the probable cause determination in this case. Therefore, the court in the current case, Brower, concludes that the DMV in case two is in privity with the State in case one. The holding of the trial court is affirmed; by collaterally estopping the DMV from re-litigating whether or not the Officer had probable cause to arrest Brower. The issue is moot.
The crux of this case was that the DMV was collaterally estopped from re-litigating the issue because the DMV and the DA were in privity with each other; and that because the DA already litigated the issue of probable cause, the matter was closed. DUI law is similar to the US Constitution, it is living and breathing. With new decisions, come new laws by the legislature. This is why it is so imperative to retain an attorney who keeps up to date on the evolving DUI law.
If you or someone close to you has been charged with DUI, call the law offices or Reeves, Aiken & Hightower, LLP. For a consultation, call us at our Charlotte, North Carolina office at 704-499-9000.
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Apr 3, 2013 | DUI & DWI, Felony DUI, Uncategorized
When a DUI Statute contains multiple severity levels, or provides for enhanced punishment, on the basis or a defendant’s previous convictions for the offense, it has been held that, though a level of severity with which the defendant is charged must be pled in the charging document. The defendant’s previous convictions do not constitute elements of the offense which must be proven at trial; however, they can be established during the punishment phase.
Defendant’s prior convictions for driving under the influence are inadmissible bad character evidence in a prosecution for driving under the influence, even though the prior convictions are relevant to the categorization of the sentence the defendant will receive if convicted. But, it has been previously held that, where a conviction must have occurred within a prescribed time period to support an enhanced severity level or penalty, failure to establish the date of a prior conviction will require reversal of a subsequent conviction under the enhancement provision.
It has previously been held that, where a conviction must have occurred within a prescribed time period to support an enhanced severity level or penalty, failure to establish the date of a prior conviction will require a reversal of a subsequent conviction under the enhancement provision. And, some states have statutes protecting the right of a defendant to a fair trial in an enhanced DUI prosecution by providing that, where there is a jury trial, the proceeding must be bifurcated (or split in half), with evidence and information about the defendant’s alleged prior convictions excluded from the jury’s knowledge at the guilt phase.
While certified copies of records of prior DUI convictions is one method of proving commission of prior offenses, it has been held that such copies are not the sole acceptable method. Further, where those methods have been destroyed in the ordinary course of court business, other proof may be substituted.
Some courts, including South Carolina, have held that prior convictions in other states may be proven to support punishment under an enhanced penalty provision, where the out-of-state convictions under an enhanced penalty provision, where the out-of-state convictions were for substantially similar offenses.
While the provisions listed here are general provisions for throughout the United States, they apply to South Carolina for the most part. But, one things that is extremely important to note is that if you have previous DUI convictions, it is so important for you to retain a competent DUI lawyer to navigate through the DUI system as efficiently as possible. Call the law offices of Reeves, Aiken & Hightower, LLP for a consultation at our Baxter Village office located in Fort Mill, South Carolina. You can reach us at 803-548-4444, or toll-free at 877-374-5999.
Apr 3, 2013 | DUI & DWI, Felony DUI, Uncategorized
On May 19, 2010, a South Carolina officer arrested Ms. Chisolm for driving under the influence. The officer had received a call that the passenger in the car was “banging on other cars.” The officer had the driver take three field sobriety tests: the one-legged stand, the walk and turn, and the horizontal gaze nystagmus test. She failed two of the tests; however, neither test discovered the amount of alcohol she had in her system.
The officer then transported Chisolm to the police station, where he administered a breath test. She blew into the test for one minute and fifty three seconds. However, the instrument just did not register, or detect any alcohol. There is no evidence that Chisolm was being uncooperative or failed to listen to the officer’s instructions. However, the officer put in the records that the woman refused to submit to the breath test, and her license was suspended as a result.
Thereafter, Chisolm requested an administrative hearing before the South Carolina Office of Motor Vehicle Hearings (OMVH) to challenge the suspension arguing that her suspension was unjustified because (1) there was no probable cause to arrest, and (2) she never refused to give the sample required by law and provided an adequate test sample.
Chisolm argues the ALC erred in determining a refusal takes place pursuant to section 56-5-2951 when the breath test instrument “determines” a provided sample is inadequate. According to Chisolm, a refusal only takes place when the test subject actually refuses the conscious act of blowing into the instrument, and the ALC erred in interpreting the SLED policies and procedures in a manner that is contrary to section 56-5-2951. She contends that she never “refused” within the meaning of this section, and therefore the suspension of her license was unjustified.
The courts in South Carolina have stated that being licensed to operate a motor vehicle on the public highways of this state is not a property right, but is a privilege. Therefore, it is subject to reasonable regulations under the police power in the interest of the public safety and welfare. However, the privilege may not be revoked or suspended arbitrarily or capriciously. Further, the Department of Motor Vehicles must suspend the driver’s license, permit, or nonresident operating privilege of or deny the issuance of a license or permit to a person who drives a motor vehicle and refuses to submit to a breath test.
The requirements for suspension for refusal to consent are as follows: (1) a person (2) operating a motor vehicle (3) in South Carolina (4) be arrested for an offense arising out of acts alleged to have been committed while the person was driving under the influence of alcohol, drugs, or both, and (5) refuse to submit to alcohol and drug testing.
The SLED policies and procedures with regard to the breathalyzer test are as follows:
§ 8.12.5(L)(2)(f)(i).
If an acceptable breath sample is not provided in two minutes, the instrument will display “Did the subject refuse?” When question is prompted, press the touch-screen icon, “Yes” or “No”. If “Yes” is answered, the instrument will print “REFUSED” by “SUBJECT SAMPLE”, after the final steps of the operational protocol are completed…. If “No” is answered, the test will abort and the instrument will print “INCOMPLETE SUBJECT TEST” on the Breath Alcohol Analysis Test Report/Evidence Ticket. An “INCOMPLETE SUBJECT TEST” reading, by itself, is not a refusal situation. (A “NO” should only be entered if the subject failed to provide an acceptable breath sample through no fault of his/her own.). In the event of an “INCOMPLETE SUBJECT TEST”, the breath test sequence may be repeated, except the advisement process is not required to be repeated. http://www.sled.sc.gov/documents/impliedconsent/polproc/8125/200902108125.pdf (last visited March 15, 2013).
The South Carolina Code does not define “refusal.” However, SLED’s policies and procedures provide several examples of when a refusal can occur. For example, a refusal can occur if the subject refuses to cooperate, delays the administration of the test, ingests prohibited substances during the observation, or intentionally causes the instrument to have an error.
Here, the court affirmed the suspension of Chisolm’s license, finding the record contains evidence that “the machine determined that the breath sample was not measurable, and thus inadequate.” It was further found that the “facts of the case conform to the criteria for determining a refusal pursuant to SLED policy and the officer properly found that the woman refused to submit to a breath test. A plain reading of the South Carolina statute at issue (56-5-2951(A) provides that the department may suspend a driver’s license when a person refuses to submit to a breath test.
A review of the record and video recording reveals that Chisolm wanted to take the breath test, blew into the DataMaster, and the instrument produced a steady tone for an extended period of time that indicated sufficient air was going into the instrument. The officer even reported that there was a steady tone. Even though the machine failed to register Chisolms breath sample, at no time did the machine indicate that she was not blowing an adequate sample.
Here, according to the officer Chisolm was absolutely doing what she was supposed to do. Also, when the officer offered Chisolm the opportunity to take the test a second time, she agreed to do so; however, the instrument would not allow for another test.
The officer testified that he had no clue why the test was registering in such a way, and stated that he felt that the DataMaster simply did not register. But, the officer pressed the “yes” button when asked whether the defendant refused the breath test. This was a complete lie, and is what the woman’s case hinges on. This act was “arbitrary and capricious” and a “manifest abuse of his discretion resulting in Chisolm’s license revocation.
The fact that the officer’s statement was that he “had no clue” why the DataMaster was not registering, while Chisolm continued to blow steadily into the machine indicates that she was cooperating fully and engaging in the test how she was supposed to. And, the SLED policies provide the officers with discretion to determine whether the subject’s failure to blow an acceptable breath sample was a refusal. However, this determination cannot be arbitrary and capricious.
So, the record here indicates that Chisolm did not refuse to take the test and the Department did not produce any evidence indicating that she was trying to fake or thwart the test, be uncooperative, act unruly, delay the administration of the test, ingest prohibited substances during the observation period, fail to cooperate with the officers instructions, or behave in any manner that would amount to a constructive refusal. Therefore, the court found it fundamentally unfair under the facts herein to label as a refusal a situation where Chisolm blew for such an extended length of time with a steady tone by the instrument, absent any allegations of fault by Chisolm or any attempt to fake or thwart the test. So, based on the facts and circumstances of this case, the officer’s decision to enter a refusal, in light of his own testimony, was arbitrary and capricious, and the State has thus failed to meet its burden of producing evidence to support the officer’s determination of refusal. The decision of the ALC is therefore overruled.
In this case, Chisolm go off the hook because she listened to the officer’s instructions and the breath test failed to register the test. There are circumstances over and over again in the DUI world that make the evidence insufficient to prosecute a defendant. Therefore, if you or a loved one has been charged with a DUI, and you feel that there is insufficient evidence, contact the law offices of Reeves, Aiken & Hightower, LLP for a consultation. Call our Baxter Village office located in Fort Mill, South Carolina at 803-548-4444, or toll-free at 877-374-5999.
Apr 2, 2013 | DUI & DWI, Felony DUI, Uncategorized
A 25-year-old man was killed in a two-vehicle crash on the 200 block of Sunset Boulevard in West Columbia. The man, who was from Hattiesburg was a passenger in a vehicle which crashed into another vehicle around 11:30 p.m. The man died from his injuries at Lexington Medical Center. The 24-year-old driver was charged with Felony DUI, and investigation of the wreck will continue.
In South Carolina, Felony DUI requires the person who is being charged to have (1) operated a vehicle under the influence of drugs, alcohol, or both; (2) did something else against the law, such as failing to stay in lane, or acted negligently; and (3) proximately causes great bodily injury or death to a person other than himself, including passengers, pedestrians, and other motorists.
If you or a loved one has been charged with Felony DUI, and there is any question as to whether one or more than one of these things is not present, contact the law offices of Reeves, Aiken & Hightower, LLP. You can reach us at our Baxter Village office located in beautiful Fort Mill, South Carolina at 803-548-4444, or toll free at 877-374-5999.
Mar 30, 2013 | DUI & DWI, Felony DUI, Uncategorized
A car accident in Matthews, North Carolina along Independence Boulevard resulted in the death of a grandmother and her daughter. The accident occurred near the Matthews Festival Shopping Center, according to the police report.
Police report that a Chevy Trailblazer collided with their Honda CRV. Four people were in the car; two of which were grandchildren who are expected to survive. The driver was reported to have been drinking before the accident and is being charged with DWI and reckless driving. Police report that additional charges are expected to be filed.
In North Carolina, there are four aggravating factors when it comes to DWI enforcement. These include: (1) Prior history of DWI – one with a prior history of DWI within the past seven years, may be charged as a habitual offender; (2) driving with a suspended license; (3) causing a car wreck – if you have been arrested for DWI after causing an accident which causes a death or serious injury, this will increase the charge; and (4) driving with a child in the car – if the child is under the age of 16, they are classified as a child. Further, this may result in a felony under North Carolina law.
In the case above, the man who caused a car accident as a result of DWI will face felony charges for allegedly causing the death of two while intoxicated. This is why it is important for him to have an appropriate defense. If you or a loved one has been charged with DWI or Felony DWI, call the law offices of Reeves, Aiken & Hightower, LLP. For a consultation, call us at 803-548-4444, or toll free at 877-374-5999.
Mar 29, 2013 | DUI & DWI, Felony DUI, Uncategorized
A Kershaw, South Carolina woman is being charged with Felony DUI after her van collided with a motorcycle, killing the driver.
South Carolina Deputies report that the man was driving along Highway 341, and smashed into a van as the woman was pulling out of a driveway.
Thereafter, the man was tossed from the bike which then burst into flames. While the man was not wearing a helmet; it was reported that the head injury was not what killed him. The driver of the van and her four passengers were taken to an area hospital.
The woman is being charged with felony DUI, child endangerment, driving under suspension, a child restraint violation, and an alcohol violation.
If you or someone close to you has received multiple charges as a result of a drinking related incident, call the law offices of Reeves, Aiken & Hightower, LLP at our Fort Mill, South Carolina office. For a consultation, call us at 803-548-4444, or toll-free at 877-374-5999.
In the North Carolina decision, Brower v. Killens, 122 N.C. App. 685, a driver who was accused of DWI, sought judicial review of revocation of his license by the DMV following arrest for driving while impaired. The North Carolina Superior Court in Guilford County found that the DMV was collaterally estopped (the issue at hand was precluded) from re-litigating the determination of whether there was probable cause to arrest that had been made in the criminal case against the driver. The DMV appealed, and the court of appeals held that because the DMV was in privity with the D.A., who prosecuted the criminal case for purposes of the probable cause determination, the collateral estoppel doctrine applied.