DWI, Probable Cause, and Motions Procedures – North Carolina Criminal Law

Because the State’s ability to prove impairment in prosecutions for driving while impaired often turns on whether the officer had probable cause to arrest — and thereafter test — the defendant, probable cause to make a warrantless arrest is a frequently litigated issue in DWI cases. While for many years there was a dearth of case law exploring the hard calls in this area, that trend has changed. In several arguably close cases over the past decade, the appellate courts have considered whether impaired driving arrests by law enforcement officers were supported by probable cause. See State v. Parisi, 372 N.C. 639 (2019) (driver’s admission to drinking, his red and glassy eyes, his odor of alcohol, and multiple indicators of impairment on field sobriety tests established probable cause; affirming court of appeals’ opinion reversing trial court); State v. Lindsey, 249 N.C. App. 516 (2016) (odor of alcohol on driver’s breath, red and glassy eyes, admission to drinking, and five clues of impairment from horizontal gaze nystagmus test provided probable cause; affirming trial court order denying motion to suppress); State v. Overocker, 236 N.C. App. 423 (2014) (light odor of alcohol and consumption of three alcoholic drinks in four-hour period were insufficient to establish probable cause; affirming trial court order granting motion to suppress); and State v. Townsend, 236 N.C. App. 456 (2014) (driver’s odor of alcohol, positive results on portable breath test, bloodshot eyes, and signs of impairment while performing field sobriety tests established probable cause; affirming trial court’s denial of motion to suppress).

Last December, the North Carolina Supreme Court added to that list with its opinion in State v. Woolard, ___ N.C. ___, 894 S.E.2d 717 (2023) reversing, upon certiorari review, the trial court’s determination that an arresting officer lacked probable cause for impaired driving. This post will review Woolard, its holding, and its path to the state’s highest court.

Facts. State Highway Patrol Captain Rodney Sawyer flashed his patrol vehicle lights to stop the truck Melvin Woolard was driving on a rural road in Beaufort County on April 11, 2020 after he saw the truck cross the centerline six or seven times, lurch into the oncoming lane, and skid on the right shoulder of the road. Mr. Woolard pulled over, successfully avoiding the canals and ditches that flanked the road. Captain Sawyer told Mr. Woolard that he had stopped him for erratic driving. Mr. Woolard, who spoke and acted normally and retrieved his license without difficulty, told Captain Sawyer that his erratic driving had resulted from his attempt to shoo bees out of his truck. During this exchange, Captain Sawyer smelled alcohol, both on Mr. Woolard’s breath and inside the truck, and noticed that Mr. Woolard had flushed cheeks and red and glassy eyes. Mr. Woolard admitted that he had consumed a couple of beers. At Captain Sawyer’s request, Mr. Woolard got out of the truck (without losing his balance or showing other signs of impairment), blew into a portable breath-testing device, and participated in a horizontal gaze nystagmus (HGN) test. Officers are trained to look for up to six clues when administering an HGN test (all related to the jerking of the eye while following a pointer as it moves across the person’s field of vision). Captain Sawyer observed all six possible clues and thereafter arrested Mr. Woolard for impaired driving.

Procedural History. Mr. Woolard moved before trial in district court to suppress evidence on several grounds. First, he contended that the portable breath test results should be suppressed because the officer failed to conduct them pursuant to the procedures set out in G.S. 20-16.3(c). The trial court agreed and suppressed those results. Second, he contended that the HGN results should be suppressed because Captain Sawyer’s testimony indicated that he deviated from NHTSA guidelines in performing the HGN test. Captain Sawyer testified that the stimulus was moved across the person’s field of vision for two seconds rather than four and was held at the edge of the person’s peripheral vision for three seconds rather than four. The trial court reasoned that this testimony could be considered in weighing the evidence, but did not preclude its admission. (Neither of these rulings was reviewed by the state supreme court.)

Finally, Mr. Woolard argued that Captain Sawyer lacked probable cause to arrest him for impaired driving. The district court agreed and entered a preliminary indication that it was inclined to suppress the evidence. The State appealed the preliminary indication to superior court pursuant to G.S. 20-38.7. The superior court agreed with the district court and remanded the case to district court for entry of an order suppressing the evidence. The district court then entered a suppression order.

The State sought further review of that order. Because there is no right to appeal from a district court order suppressing evidence, the State petitioned the court of appeals for a writ of certiorari. When the court of appeals denied that request, the State petitioned the state supreme court, which granted certiorari to review the district court’s final suppression order.

Analysis. The state supreme court considered whether based on the facts found by the district court (recounted in the “facts” section of this post), Captain Sawyer had probable cause as a matter of law. The Court noted that whether a particular set of facts establishes probable cause is a legal question subject to de novo review.

The Court cited Parisi for the proposition that an officer has probable cause to arrest for impaired driving based on alcohol impairment when the circumstances give rise to a reasonable belief that a driver has consumed alcohol and has thereafter driven “‘in a faulty manner or provided other indicia of impairment.’” (Slip op. at 17 (quoting State v. Parisi, 372 N.C. at 651.) Case law has set forth examples of evidence that may support such a belief, including erratic driving, evidence of drinking, and field sobriety tests which “may offer reliable metrics of impairment.” (Slip op. at 18.) The Court noted that while any single fact alone may not establish probable cause, the inquiry is an additive one.

The Court, in a unanimous opinion authored by Justice Earls, concluded that a reasonable officer confronted with the facts before Captain Sawyer would draw the same conclusions he did and would find a substantial basis to arrest. Though Mr. Woolard’s explanation of the incident and his conduct at the scene ran counter to Captain Sawyer’s suspicion, the evidence as a whole established probable cause. The Court explained that “[d]espite some arguably innocuous conduct, Mr. Woolard still drove erratically; banked onto the road’s shoulder; smelled of alcohol; had red, glassy eyes; admitted to drinking before driving; and showed every clue of impairment on the HGN test.” (Slip op. at 23.)

The Court thus reversed the district court’s suppression order and remanded Mr. Woolard’s case for further proceedings.

The standard. While Woolard is a close case, it isn’t the closest call among those the appellate courts have made in recent years. After all, Woolard was driving erratically, weaving all over the road. In Parisi and Townsend, drivers were stopped at checkpoints and the courts were called upon to determine whether the officer had probable cause in the absence of faulty driving. Post-Woolard, my shorthand equation for determining probable cause in alcohol-impaired driving cases remains as follows:

Evidence of drinking

+

Indicators of impairment from field sobriety tests or unexplained faulty driving consistent with impairment

=

Probable cause.

The formula is not perfect or exact (for example, impairment could be based upon evidence other than field sobriety tests), and of course probable cause isn’t a math problem. My takeaway, however, from the jurisprudence in this area is that when an officer has evidence of recent alcohol consumption and evidence of impairment from field sobriety tests or of faulty driving that is consistent with impairment and is not explained by some other cause, he or she has a sufficiently substantial basis to make a warrantless arrest.

A word (or two hundred) about the procedure. Much of the Court’s opinion in Woolard is dedicated to the issue of whether the Court properly granted certiorari pursuant to Rule 21 of the Rules of Appellate Procedure. The Court concluded that it did because a district court’s final suppression order is interlocutory (though it results in the suppression of evidence, further action is required to dispose of the case) and the State had no right of appeal.

Had a district attorney asked me about seeking review of the district court’s final suppression order before certiorari was granted in Woolard, I would have advised the State that it could file a petition for certiorari review in superior court pursuant to Rule 19 of the General Rules of Practice for the Superior and District Courts. But I doubt the State would have considered that route particularly appealing. After all, it had already sought review of the district court’s preliminary ruling in superior court, and the superior court had agreed with the district court’s ruling. The State likely would not have been optimistic about its odds of obtaining a different answer on certiorari review.

Woolard makes clear that in these circumstances, the State may seek certiorari review directly from the appellate courts — though it will be interesting to see how receptive the appellate courts are to future discretionary petitions of this ilk. The Woolard Court forecast that the door for review might not often open, stating that its exercise of discretion to “release the State from procedural limbo” in this instance “does not mean we should deploy our certiorari jurisdiction whenever the State loses a motion to suppress in these circumstances.” (Slip op. at 13.)

Finally, some (more) unsolicited thoughts. The legislature enacted G.S. 20-38.6 and G.S. 20-38.7 in 2006 to allow the State to appeal from district court rulings on motions to suppress in implied consent cases, which, if granted, effectively resolve the case in favor of the defendant by barring the introduction of the State’s evidence. But the procedure they created is cumbersome. It requires a significant amount of appealing and remanding (see above), and cases like Mr. Woolard’s may remain unresolved for years. In addition, as noted in Woolard, the scheme does not provide for appellate review as a matter of right. A more straightforward approach would be a statute that permits the State to appeal to superior court from a district court order granting a pretrial motion to suppress in an implied consent case. Should the legislature so desire, it could create a further right to appeal to the state’s appellate courts.

If you have thoughts to share about Woolard, DWI motions procedures, or impaired driving cases more generally, please feel free to email me at [email protected].

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