Many people could identify a potential impaired driver they might see on the road by pointing to signs such as weaving while driving, driving with headlights off, or driving particularly slowly, especially when that driver is doing so late at night in the vicinity of bars. A concerned citizen might make a 911 call to alert the local police of the potentially impaired driver, and the U.S. Supreme Court recently held that a reliable anonymous 911 phone call can provide reasonable suspicion for a police officer to make a traffic stop for impaired driving. But can a concerned citizen make a traffic stop himself?
North Carolina statute contains a “citizen’s arrest” provision which allows private citizens to detain another person in certain situations. G.S. 15A-404 states that
(a) No Arrest; Detention Permitted. – No private person may arrest another person except as provided in G.S. 15A-405. A private person may detain another person as provided in this section.
(b) When Detention Permitted. – A private person may detain another person when he has probable cause to believe that the person detained has committed in his presence:
(1) A felony,
(2) A breach of the peace,
(3) A crime involving physical injury to another person, or
(4) A crime involving theft or destruction of property.
(c) Manner of Detention. – The detention must be in a reasonable manner considering the offense involved and the circumstances of the detention.
(d) Period of Detention. – The detention may be no longer than the time required for the earliest of the following:
(1) The determination that no offense has been committed.
(2) Surrender of the person detained to a law-enforcement officer as provided in subsection (e).
(e) Surrender to Officer. – A private person who detains another must immediately notify a law-enforcement officer and must, unless he releases the person earlier as required by subsection (d), surrender the person detained to the law-enforcement officer.
Does DWI fall into any of these categories? The only category which could be potentially applicable is “breach of peace.” In the 2009 North Carolina Court of Appeals case, Parker v. Hyatt, a North Carolina Wildlife Resources Commission officer observed a car travelling well under the speed limit and crossing the center line several times. The officer believed that the driver was impaired and activated his blue lights to pull the car over. The officer smelled alcohol coming from the driver and asked the driver to perform certain field sobriety tests. The driver’s performance on the field sobriety tests led the officer to believe that the driver was impaired and the officer called for the highway patrol, who then arrested the driver. The court of appeals case was a result of the driver’s suit against the Wildlife Officer for false imprisonment.
In its analysis, the court of appeals looked at G.S. 113-136, which contained the officer’s law enforcement powers. Subsection (d) of that statute stated that the officer was
authorized to arrest without warrant under the terms of G.S. 15A-401(b) for felonies, for breaches of the peace, for assaults upon them or in their presence, and for other offenses evincing a flouting of their authority as enforcement officers or constituting a threat to public peace and order which would tend to subvert the authority of the State if ignored.
The relevant subsection contains the “breach of peace” language similar to the citizens arrest statute. However, instead of using this provision of the statute, the court of appeals found that “driving while impaired constitutes “a threat to public peace and order which would tend to subvert the authority of the State if ignored.”” Therefore, the court of appeals found that the officer had the authority to arrest the driver “because the officer had probable cause to believe that a criminal offense occurred in his presence, which constituted a threat to public peace and order which would tend to subvert the authority of the State if ignored.”
Another court of appeals case in which a private citizen made a stop of a suspected impaired driver is State v. Weaver (2013). In that case, a security guard was contracted by a townhome community and “authorized to issue civil citations and fines to anyone on the property who violated the rules and regulations of the community, such as exceeding the posted community speed limit.”
Late one Friday night, the security guard observed a car in the community cross the center line several times while travelling an estimated 10 m.p.h. over the speed limit. The guard activated his warning lights and pulled the car over. He observed that the driver’s eyes were bloodshot and that there was an odor of alcohol coming from the vehicle and the driver’s person. The driver admitted to consuming alcohol, and the guard called the city dispatch to report a possible DWI. The driver was later arrested for DWI.
The driver argued that the guard was a state actor and the stop was not supported by reasonable suspicion. The court of appeals held that the guard “was not a state actor, and his traffic stop of defendant did not require reasonable suspicion.” However, there was no discussion of the citizens arrest statute in this case.
The court of appeals case, State v. Verkerk (2013) did contain a discussion about the citizens arrest statute. In that case, a firefighter observed a car weaving and going well below the speed limit. He activated his lights and tapped his siren to stop the car. The car pulled over, and the firefighter called in his location to the local police department. After a discussion with the firefighter, the driver drove away (against the firefighter’s direction) but was later stopped by the police and arrested for DWI. Similar to Weaver, the driver argued that the firefighter was a state actor and that the stop was not supported by reasonable suspicion. The court of appeals remanded the case to the trial court to make the necessary findings as to whether the firefighter was a state actor. The North Carolina Supreme Court recently ruled that no remand was necessary because the later stop of the driver by the police was supported by reasonable suspicion. However, the court of appeals opinion contains an interesting discussion of G.S. 15A-404(b).
In Verkerk, the trial court found that the firefighter’s stop was permitted because “it was a lawful detention of the defendant pursuant to [N.C. Gen.Stat.] § 15A–404(b), which allows any private citizen to “detain another person when he has probabl[e] cause to believe that the person detained has committed, in his presence: (2) A breach of the peace[.]””
The court of appeals noted that “nothing in N.C. Gen. Stat § 15A–404 authorizes private citizens to conduct investigatory stops based on “reasonable articulable suspicion” for the purpose of ascertaining whether a criminal offense has been committed.” Therefore, the citizen’s arrest statute is applicable to a situation in which a citizen detains another person based on probable cause but not to an investigatory stop.
Looking at the above cases, it appears that the citizen’s arrest statute does not authorize a private citizen to make an investigatory stop. However, the stops in the discussed cases are not challenged in any other way, except that the citizen making the stop is a state actor and that the stop was not supported by reasonable suspicion. The issue is most likely limited to the types of people in the cases above who are equipped with lights on their vehicles which would prompt a driver to pull over, but it is interesting to consider whether any private citizen would be allowed to somehow stop a potentially impaired driver. There are, of course, pros and cons. The dissent in Verkerk warned against the dangers of allowing these stops by people who are untrained in making traffic stops. But in each of the above cases, an impaired driver was removed from the roads.
If you have been arrested for DWI, contact a lawyer at Rosensteel Fleishman, PLLC, as soon as possible (704) 714-1450.