Yesterday, the North Carolina Court of Appeals issued an opinion in the case State. v. Overocker, in which the defendant was involved in a minor car accident after coming out of a bar and subsequently arrested for impaired driving. The court held that a minor accident combined with evidence of alcohol consumption (a positive result on an alco-sensor and the defendant’s admission to drinking) and a light odor of alcohol did not establish probable cause to arrest the defendant when there were no signs of actual impairment observed.
In Overocker, the defendant arrived at a bar at 4:00 p.m. While inside, a group of motorcyclists pulled into the parking lot of the bar and one of them parked his motorcycle directly behind the defendant’s SUV. The trial court found that this motorcycle was illegally parked. The defendant left the bar about four hours later, after consuming four bourbons on the rocks. He started backing out of his parking space and collided with the motorcycle. He stopped his SUV when he “heard something.” At trial, the court found that "[b]ecause the motorcycle stood lower than the rear window of the Defendant's vehicle and there were other motorcycles parked in the parking space next to the passenger side of the Defendant's vehicle, there is no evidence the Defendant saw, or could even see the pink motorcycle parked behind his vehicle which was in a parking space, or was otherwise aware of its presence."
An off-duty police officer saw the defendant’s collision with the motorcycle. He had noticed the defendant and his friend before the collision because “they were talking loudly” but "there was nothing unusual about the Defendant's behavior or conversation in the bar." When he observed the defendant and his friend leaving the bar, “[h]e did not observe anything unusual about the Defendant's appearance, smell, walking, balance, eyes, or speech, other than he was talking loudly, upon which he based his opinion that the Defendant was impaired and should not be driving."
After the collision, on-duty police officers arrived at the scene and talked to the defendant about the accident. The defendant admitted to having three drinks (though he had four), and the police officer noted that "[t]he Defendant had an odor of alcohol which [was] described as 'not real strong, light.'" The police officer had the defendant perform field sobriety tests, which he performed successfully other than asking the officer what to do next while in the middle of the test. The defendant also submitted to two portable breath tests, which registered a positive result.
After observing the defendant for about an hour, the officer concluded that the defendant “had consumed alcohol” but "was not slurring his speech and he walked without stumbling." However, "[b]ased upon the fact that the Defendant had been at a bar, he was involved in a traffic accident, his performance tests and the odor of alcohol, [the officer] believed the Defendant 'was impaired and it was more probable than not that he would blow over the legal limit.' Therefore, he placed the Defendant under arrest for Impaired Driving."
The defendant argued that the police officer lacked probable cause for his arrest. The trial court found that the police officer did lack probable cause and allowed the defendant’s motion to suppress. The State appealed.
On appeal, the court of appeals noted that to determine whether probable cause exists, a court must look at the “totality of the circumstances” as to whether there is “a reasonable ground for belief of guilt.” "The test for whether probable cause exists is an objective one -- whether the facts and circumstances, known at the time, were such as to induce a reasonable police officer to arrest, imprison, and/or prosecute another."
At the time the officer arrested the defendant, he knew the following: the defendant had had three drinks over the course of four hours (though he had actually had four); the defendant had been involved in an accident caused by an illegally parked motorcycle rather than unsafe movement on the part of the defendant; the defendant had an odor of alcohol which the officer described as “not real strong, light”; none of the officers observed the defendant stumbling or slurring his speech; and the defendant successfully performed the field sobriety tests except that halfway through each test he asked the officer what to do next.
The court concluded that “[a] light odor of alcohol, drinks at a bar, and an accident that was not defendant's fault were not sufficient circumstances, without more, to provide probable cause to believe defendant was driving while impaired.”
The court then addressed whether the result of the defendant’s alco-sensor test would provide additional evidence towards probable cause. north carolina statute G.S. 20-16.3(a) states that
A law-enforcement officer may require the driver of a vehicle to submit to an alcohol screening test within a relevant time after the driving if the officer has:
(1) Reasonable grounds to believe that the driver has consumed alcohol and has:
a. Committed a moving traffic violation; or
b. Been involved in an accident or collision; or
(2) An articulable and reasonable suspicion that the driver has committed an implied-consent offense under G.S. 20-16.2, and the driver has been lawfully stopped for a driver's license check or otherwise lawfully stopped or lawfully encountered by the officer in the course of the performance of the officer's duties.
Requiring a driver to submit to an alcohol screening test in accordance with this section does not in itself constitute an arrest.
The State argued that the result of the alco-sensor provided probable cause to arrest the defendant. However, the court noted that G.S. 20-16.3(d) states that
The fact that a driver showed a positive or negative result on an alcohol screening test, but not the actual alcohol concentration result, or a driver's refusal to submit may be used by a law-enforcement officer, is admissible in a court, or may also be used by an administrative agency in determining if there are reasonable grounds for believing:
(1) That the driver has committed an implied-consent offense under G.S. 20-16.2; and
(2) That the driver had consumed alcohol and that the driver had in his or her body previously consumed alcohol, but not to prove a particular alcohol concentration. Negative results on the alcohol screening test may be used in factually appropriate cases by the officer, a court, or an administrative agency in determining whether a person's alleged impairment is caused by an impairing substance other than alcohol.
Because of the rule in subsection (d) that only the positive result of the defendant’s alco-sensor test, and not the actual alcohol concentration result, may be used to determine probable cause, the court of appeals held that the positive result of the alco-sensor did not add any information since the defendant admitted to consuming alcohol before the collision. Furthermore, the fact that the officer had the actual alcohol concentration result in front of him when making the arrest was not sufficient to establish probable cause. The court noted that the statute prior to 2006 allowed an arresting officer to consider the actual alcohol concentration result of the alco-sensor in determining probable cause. However, under the current version of the statute, the officer lacked probable cause since a positive result only confirmed what the defendant had admitted already.
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