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DWI Procedures: Navigating the Maze

Laura Gibson, Assistant Public Defender, Beaufort County

Daniel Spiegel, Fair Punishment Project (former Assistant Appellate Defender/APD)

How did this get so hard?

• Governor’s Task Force on DWI was convened in 2005.

• Noted several “problems:”

• Superior Court MTS has formalized process with required affidavit and… District Court does not.

• DA is not getting any notice of motions- no opportunity to prepare/respond

• State can’t appeal MTS to Superior Court

The Fix

• Motor Vehicle Driver Protection Act of 2006

• Codified § 20-38.6 and § 20-38.7

• Motions must be made pretrial - No double jeopardy bar

• Invented preliminary indication

• Written Findings of Fact and Conclusions of Law required

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§ 20-38.6

• § 20-38.6. Motions and district court procedure.

• (a) The defendant may move to suppress evidence or dismiss charges only prior to trial, except the defendant may move to dismiss the charges for insufficient evidence at the close of the State's evidence and at the close of all of the evidence without prior notice. If, during the course of the trial, the defendant discovers facts not previously known, a motion to suppress or dismiss may be made during the trial.

The Result

• Must make your MTS and MTD pretrial in impaired driving cases

• Exceptions:• Newly Discovered Facts mid-trial- “Surprise!”

• (Are there strategic implications here? Is there ever a reason to not learn all you can?)

• How does the Court know what you knew?

• Normal MTD at close of State’s evidence for insufficient evidence

In Practice

• District Court Motions to Suppress• In Writing v. Not in Writing

• Filing before the day of court v. day of court

• State’s Remedy in 20-38.6(b) (“State shall be granted reasonable time to procure witnesses or evidence and to conduct research required to defend against the motion.”)

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§ 20-38.6

• § 20-38.6. Motions and district court procedure.

• (f) The judge shall set forth in writing the findings of fact and conclusions of law and preliminarily indicate whether the motion should be granted or denied. If the judge preliminarily indicates the motion should be granted, the judge shall not enter a final judgment on the motion until after the State has appealed to superior court or has indicated it does not intend to appeal. (2006-253, s. 5.)

The Preliminary Indication

§ 20-38.7

• § 20-38.7. Appeal to superior court.

• (a) The State may appeal to superior court any district court preliminary determination granting a motion to suppress or dismiss. If there is a dispute about the findings of fact, the superior court shall not be bound by the findings of the district court but shall determine the matter de novo.

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Four Stages

2

1 3

4

District Court

Superior Court

Four stages (generally)

• Stage 1: District Court Preliminary Indication

• Stage 2: Superior Court Decision and Remand

• Stage 3: District Court Final Order of Dismissal/Suppression

• Stage 4: Superior Court Decision on District Court’s Final Order (in the case of a MTD)

§ 15A-1432 and MTDs

• § 15A-1432. Appeals by State from district court judge.

• (a) Unless the rule against double jeopardy prohibits further prosecution, the State may appeal from the district court judge to the superior court:

• (1) When there has been a decision or judgment dismissingcriminal charges as to one or more counts.

• (must be made within 10 days per § 15A-1432(b))

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§ 15A-1432

• Also see § 15A-1432 (d): if Superior reverses the District Court’s final order of dismissal at Stage 4, D can appeal to the COA after conviction (or can try for interlocutory review pre-conviction)

• And § 15A-1432 (e): if the Superior Court affirms the District Court’s final order of dismissal at Stage 4, the State can appeal to the COA.

State v. Fowler, 676 S.E.2d 523 (2009)and

State v. Palmer, 676 S.E.2d 559 (2009)

• Fowler- upheld procedure over various constitutional objections- “reasonable time” given to State to appeal from preliminary indication

• Palmer- COA declined to apply to § 20-38.7(a) the ten-day time limit for appeals required by § 15A-1432

• (much more to these cases: Shea Denning article on DWI Motions Procedure after Folwer and Palmer athttps://www.sog.unc.edu/sites/www.sog.unc.edu/files/reports/aojb0906.pdf)

Where Things Go Off the Rails

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State v. Hutton

• D won a MTS in District Court

• State appealed Preliminary Indication to Superior Court

• Superior Court reversed.

• District Court did not enter final order on MTS, but D appealed to Superior Court

• D pled guilty in Superior Court and appealed to COA, reserving right to challenge ruling on MTS under § 15A-979(b).

Hutton

• Didn’t work out

• Lesson: need a final ruling on motion in District Court at Stage 3?

• Or is just that you should refile your MTS in Superior Court at Stage 4?

• That seems like the real key• BUT……

In Practice

• Post-Hutton

• If Superior Court reverses District Court preliminary indication & remands, you must get a judge to enter a FINAL ORDER on your Motion to Suppress.

• Post District Court final-order à trial v. pleading guilty

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In Practice

• After District Court trial or guilty plea, give Notice of Appeal to Superior Court within 10 days per NCGS 15A-1431.

• Refile Motion to Suppress using NCGS 15A-977(a):• (a) A motion to suppress evidence in superior court made before trial must be in

writing and a copy of the motion must be served upon the State. The motion must state the grounds upon which it is made. The motion must be accompanied by an affidavit containing facts supporting the motion. The affidavit may be based upon personal knowledge, or upon information and belief, if the source of the information and the basis for the belief are stated.

Is Stage 4 de novo?

• Can Stage 4 judge overrule Stage 2 judge?• Collateral estoppel?

• 15A-953? (No motion is prejudiced by ruling in Dist Ct??)

• Whole principle of de novo appeal?

• Does 15A-1432 mandate de novo review?

State v. Miller (March and May 2016), NCSC then remand to COA

• Despite incredibly long procedural history, the NCSC case boiled down to a simple holding: when the superior court announced its ruling in open court and the courtroom clerk made a notation of its ruling in the minutes kept for that session, that was adequate to constitute “entry” of an order such that there was jurisdiction for review.

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State v. Miller (March and May 2016), NCSC then remand to COA

• On remand to the COA, a more interesting question came up as to whether the State can make blanket objections to findings of facts from Stage 1 to trigger a new hearing at Stage 2. • Mecklenburg County Administrative Order not letting State make blanket

objection- legality?

In Practice: Drafting FOF from Stage 1

• When your Motion to Suppress is granted by a District Court judge, draft specific findings of fact.

• Draft them without opinion, but as close to “pro-defense” as possible.

• Get the State to make changes they wish to see implemented & make the changes if they are reasonable à weaken de-novo argument

• Then get the judge to sign the order.

Drafting the FOF from Stage 1

• Don’t say what happened at the hearing!• “Officer Smith testified that….”

• “In contrast, D’s witness, Ms. Brown, testified that…..”

• Say what happened in real life! Describe the facts of the case• “D did not weave”

• “D was steady on her feet”

• Sad Story- my first drafting of the FOF. • Good lesson for DWIs and for Superior Court Practice.

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Other interesting procedural cases involving…. detours

• State v. Loftis (2016)• MTS was granted but State refused to dismiss after final suppression order

• District court dismissed it since State wouldn’t

• Rule 3.1 of Professional Conduct- State had duty to dismiss so as not to bring frivolous case

• State v. Parisi (2017)• Labeling MTS/MTD and power of court to dismiss

POSSIBLE PATHS THROUGH THE MAZE

MTS

2 – D wins

1 - D loses- and is convicted

De novo appeal per 15A-1431(b) for new trial

State can appeal per 15A-979(c), 15A-1445(b)

Superior Court

District Court

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MTS

2 – D loses

1 - D loses- and is convicted

De novo appeal for new trial

D can appeal per 15A-979(b) (with guilty plea, must remember to notify State ahead of time and appeal from final judgment)

(with trial, must remember to object at time the evidence comes in)Superior Court

District Court

MTS

2 – D wins again

1 - D wins 3 – final order

4- D wins yet again

State can try Rule 19 Cert Petition to Sup. Ct. per General Rules of Practice

Is it over? Probably

Superior Court

District Court

MTS

2 – D wins again

1 - D wins 3 – final order

4- D loses

Rule 19 Cert Petition

Superior Court

District Court 5 final order (again)D is convicted

6 – new trial

De novoappeal

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MTS

2 – D loses

1 - D wins 3 Final order-D is convicted

4 - new trial

De novo appeal for new trial

Superior Court

District Court

Pretrial MTD

2 – D wins

1 - D loses- and is convicted

De novo appeal for new trial

State can appeal per 15A-1432(e)

Superior Court

District Court

Pretrial MTD

2 – D loses

1 - D loses- and is convicted

De novo appeal for new trial

D can appeal per normal appeal to COA

Superior Court

District Court

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Pretrial MTD

2 – D loses

1 - D wins 3 – final order

De novo appeal for new trial

4 – new trial Superior Court

District Court

Pretrial MTD

2 – D wins

1 D wins 3 – final order

State appeals per 15A-1432(a)

4 – D wins

State appeals per 15A-1432(e)

Superior Court

District Court

Pretrial MTD

2 – D wins

1 D wins 3 – final order

State appeals per 15A-1432(a)

4 – D loses

5-final order (again)D is convicted

Normal appeal

(D can try interlocutory appeal –15A-1432(d))

6 – new trialSuperior Court

District Court

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Presentments

• § 7A-270(a)(2): the superior court has jurisdiction to try a misdemeanor when “the charge is initiated by presentment”.

• Avoids the whole maze and goes straight to superior court

Presentments

• § 15A-628(a)(4): a grand jury “[m]ay investigate any offense as to which no bill of indictment has been submitted to it by the prosecutor and issue a presentment accusing a named person or named persons with one or more criminal offenses if it has found probable cause for the charges made.”

Presentments

• § 15A-641, the written presentment issued by the grand jury on its own motion is filed with the superior court. Thereafter, the district attorney is obligated to investigate the factual background of every presentment and submit to the grand jury any bill of indictment it deems appropriate.

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What does “on its own motion” mean?

A Texas grand jury investigatingallegations of misconduct against PlannedParenthood after the release of covertly-shot videos about the use of fetal tissuefrom abortions has instead indicted twoantiabortion activists who made thevideos, authorities said Monday.

What does “on its own motion” mean?

• Putting aside questions about how this controversial matter should have been handled, the grand jury action in the Planned Parenthood case exemplifies what it means for such a body to act “on its own motion.”

• Can the presentment process lawfully be collapsed into the indictment process?

Presentments

• Several cases explain that a presentment originates from the grand jury (ex mero motu/of its own motion/without an indictment having been submitted) (State v. Guilford, 49 N.C. 83 (1856); State v. Morris, 104 N.C. 837 (1889), State v. Thomas, 236 N.C. 454 (1952)).

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Presentments

• But what about this language from § 15A-628(a)(4):

An investigation may be initiated upon the concurrence of 12 members of the grand jury itself or upon the request of the presiding or convening judge or the prosecutor.

How is this language squared with the caselaw? Is the statute unconstitutional? Has the meaning of the word simply evolved?

In Practice: Challenging Presentments

• What facts should I gather when I encounter a presentment?• CR v. CV

• Grand Jury Minutes

• Witnesses: clerk, officer

• Dates/Time of Presentment v. Indictment

In Practice: Challenging Presentments

• How do I challenge a presentment & resulting indictment?• Motion to Dismiss for Lack of Jurisdiction

• How have these motions turned out thus far?• Pitt County

• Beaufort County

• Your jurisdiction?