Charlotte, NC Law Firm
Fast Car Pulled Over for Speeding
Looking for a Charlotte DWI Lawyer Near You?
Call Today!
Fast Car Pulled Over for Speeding

Talking PC: Probable Cause and Flawed Police DWI Arrest

I. PC for DWI

An experienced Charlotte criminal trial attorney is aware of the unique place that DWI charges can play in North Carolina courts. There’s no doubt that the public generally supports crackdowns on DWI offenses in North Carolina. But here’s the news flash: as important as DWI is, to maintaining public safety, it’s probably a little more important that anyone accused of any DWI or DUI crime is guaranteed access to all their rights. That’s why the North Carolina Constitution itself specifies, in Article 1 section 20, that there will be no arrest absent probable cause.

Imagine, if you will, the defendant who hires an effective Charlotte criminal trial attorney, and successfully challenges his arrest based on a lack of probable cause. A well-qualified Charlotte criminal trial attorney knows that there are important restrictions on when a state can appeal a losing prosecution. This is because an important constitutional right is the prohibition against double jeopardy. Other states handle this issue very differently. North Carolina has chosen to allow only certain limited statutory processes for a state to appeal an acquittal. But without the help of a qualified criminal trial attorney, the state may still push the boundaries of this important constitutional protection. In the case looked at here, the Superior Court had actually found the police officer did not have adequate probable cause to make the original DWI arrest. The Charlotte criminal trial attorney had won a preliminary order of finding no probable cause. Note, this was not a final order. Nevertheless, the prosecutor appealed that preliminary finding.

II. DWI Acquittals: Prosecutors Have To Follow A Narrow Path

Fundamentally, the Charlotte criminal trial attorney had proven that the importance of probable cause should be among the most important decisions on appeal. Despite the fact that the trial court treated this as an interim order, it admittedly did have a powerful weight in terms of whether or not a trial would be held. Still, the judges on appeal agreed with the Charlotte criminal trial attorney: they ruled the state had no grounds to appeal the order at this time.

Then, something happened which was very surprising in light of this ruling to otherwise prohibit the state’s appeal. The judges, it might be said, turned on a dime, and allowed the appeal to be heard after all.

III.   Skinning A Cat: DWI and Public Policy

Despite the winning argument by the Charlotte criminal trial attorney, obviously something interesting had happened. As they agreed with the defendant’s argument, how could the appeals court still decide to review the matter? What was their jurisdiction? The appeals court had jurisdiction by invoking a general appeal power. This power to hear almost any case is based the Court of Appeals having a right to review a writ of certiorari…often saved for the most important cases. So, in accepting the idea that they could still hear this case, the court went further. They actually quoted from former Governor Easley’s executive order on drunk driving. That executive order (EO Number 54) was The Governor’s Task Force on Driving While Impaired. This EO was used to justify the appeal court’s review of the matter, as being in the public’s vital interest.

The EO Task Force was very much focused on operation of motor vehicles and drinking as a legitimate health and safety concern. So far, so good. The Governor’s Task Force was charged with reviewing all the laws in North Carolina that were applicable to driving while impaired--and was also charged with drafting specific policy recommendations to reduce driving while impaired. This attention on a political policy document is where appeals review got questionable. The trial court had also looked into this Task Force policy and reached a very definite opinion that it had no power to regulate court process. It’s very possible the Appeals Court was reacting to the trial court’s criticism of the Task Force approach.

The appeals court noted the State’s so-called “Booze it and Lose it” program. Admittedly, naming specific safety campaigns is pretty unusual in a probable cause and dwi case. The most important part of the court’s consideration of the executive order, however, was not program titles…but the program’s impact on how the Governor and the Assembly expected courts to procedurally accommodate drunk driving cases.

IV.  Trial Courts: First line, fine line

Though it’s natural to spend quite a bit of time talking about appeals process right here, there needs to be a word about how the Charlotte criminal trial attorney actually worked with…the trial court here. This case was a perfect example of how effective an experienced criminal and DWI trial attorney was, at the trial level. Specifically, the Mecklenburg County Superior Court judge tackled the important and basic constitutionality of allowing the state to appeal an acquittal. The trial court judge found a veritable cornucopia of reasons not to allow the state to appeal before a final judgment was entered in a DWI case.

There were at least six separate reasons. The trial judge’s rationales were very much in line with the Charlotte criminal trial attorneys arguments, and extended back, to some degree, to the lack of probable cause. For example, there was an argument of applying the Equal Protection clause of the 14th amendment in the United States Constitution: allowing an appeal here would create different types of defendants based on adjudicated guilt or not. Article Four, in section 1 of the North Carolina Constitution, also meant that only the North Carolina Supreme Court, and not any Governor’s panel or even Assembly rules, should be allowed to make rules of practice or procedure for the courts. Another strong argument of course, was the former Jeopardy clause in the North Carolina Constitution itself. An acquittal at trial court, this clause means, deserves to be acknowledged in the process.

No matter how basic and important fundamental rights (such as probable cause or double jeopardy) are, there is an important sticking point in their use. In order to exercise these rights, they have to be known and then demanded or protected by an accused. In many cases, owing to the inflexibility of a police officer, the only way to guarantee your rights is to work with an experienced Charlotte criminal trial attorney, who has specific DWI experience.


The final result of this case on appeal had to be called a mixed opinion. The court was clearly uncomfortable with how the Assembly had written the existing appeals statute. Perhaps the EO was a way to prompt a fix by the Assembly. While they agreed with much of what the Charlotte criminal trial attorney said, they nevertheless sent the final decision back to the trial court itself. It’s fortunate that this kind of DWI case is highly unusual in terms of twisted legal procedure. A Charlotte criminal trial attorney has a special set of skills to address DWI charges, and how courts may seek to apply public policy to the process. Those skills were clearly tested in this case.

If you, a family member or a loved one have questions about any arrest, or involving related claims or your legal and Constitutional rights or appeals, including (but not only) DWI or DUI issues, please contact us.  You will speak with an experienced Charlotte criminal trial attorney, who can best answer your questions about how your rights can be protected.  There is never a fee for this initial consultation.

Additional DWI Articles

April 27, 2021
Injured By a Drunk Driver – Who Can I Sue?

While drunk driving accidents have been on the decline in the past few years, drunk driving is still a major problem in the United States and a leading cause of car accidents. The most recent statistics released by the National Highway Traffic Safety Administration show that approximately 28 people die in car accidents every day […]

July 28, 2020
Wined and Fined: Good Samaritan Charged with DWI

I. You Will Need a Lawyer Just because someone has had drinks, does notautomatically mean that the law should rest on their shoulders and result in an automatic conviction. That is partly why, under North Carolina law, a series of safeguards have been adopted. These safeguards often rely on, and are helpfully followed, by experienced […]

July 16, 2020
Drinking While Working: Can Workplace Culture Lead to Company Liability?

I. Working While Impaired It is a sobering crisis. We cannot say for sure just exactly how many people drink during work hours, and then drive a vehicle within a short period of time after leaving the restaurant or bar. Often, it requires help from a car accident attorney to see if this drinking is […]

May 11, 2020
Wrongful Death and DWI: Finally Seeing the Light

I. Serving Too Much One of the first major cases in North Carolina to deal with holding a tavern responsible for excess sales to a drunk customer, happened not all that long ago. These were 1980s cases, and were also significant in that they developed the basic standards for assessing a change from traditional immunity […]

linkedin facebook pinterest youtube rss twitter instagram facebook-blank rss-blank linkedin-blank pinterest youtube twitter instagram