Earlier this week, Gerald McRath, a graduate assistant football coach at the University of North Carolina, was arrested in Durham for DWI. According to news reports, McRath was charged with DWI after Durham police found him early Monday morning in an idling car stopped on a service road. The police spokesperson said that McRath appeared to be asleep. McRath was released on $1,500 bail and had his driver’s license revoked for 30 days. Following his arrest, McRath resigned his position as graduate assistant coach at UNC.
This news item calls our attention to an interesting aspect of DWI law in North Carolina, namely that a person can be arrested for impaired driving for sitting in the driver’s seat of a running car while impaired. Let’s take a look at how North Carolina law permits this outcome.
The North Carolina DWI statute, G.S. 20-138.1, states that
A person commits the offense of impaired driving if he drives any vehicle upon any highway, any street, or any public vehicular area within this State:
(1) While under the influence of an impairing substance; or
(2) After having consumed sufficient alcohol that he has, at any relevant time after the driving, an alcohol concentration of 0.08 or more. The results of a chemical analysis shall be deemed sufficient evidence to prove a person’s alcohol concentration; or
(3) With any amount of a Schedule I controlled substance, as listed in G.S. 90-89, or its metabolites in his blood or urine.
G.S. 4.01(7) defines a “driver” as “[t]he operator of a vehicle, as defined in subdivision (25). The terms “driver” and “operator” and their cognates are synonymous.” So next we look at G.S. 4.01(25), which defines an “operator” as “[a] person in actual physical control of a vehicle which is in motion or which has the engine running. The terms “operator” and “driver” and their cognates are synonymous.”
Therefore, a person violates the DWI statute if he is impaired while “operating” his vehicle, which includes sitting in the driver’s seat of a parked vehicle with the engine running under the statutory definitions.
Now let’s suppose that the engine is not running when the person is discovered by police sitting in the driver’s seat of a parked vehicle while impaired. It is possible in this situation that evidence other than an officer’s direct observations can be used to show that the impaired person had been driving. For example, in the 2014 North Carolina Court of Appeals case State v. McCrary, the defendant was convicted of DWI after being found asleep in the driveway of another person’s house. The police officer who discovered the defendant was responding to a report of suspicious activity at that house. The homeowner testified that he witnessed the defendant make several attempts to turn into his driveway from the road, and the police officer observed tracks in the snow which were consistent with the homeowner’s story. The issue of the defendant’s operation of the vehicle was not contested.
In an earlier court of appeals case, State v. Mack (1986), the defendant did contest his operation of the vehicle following his conviction for DWI. In Mack, the court used both direct and circumstantial evidence to support the jury’s finding that the defendant operated the vehicle while impaired. The officer found the defendant asleep in a car about 45 feet off the road. The car was sitting on a chain link fence. The car was not running, but the officer who discovered the defendant noticed that the key was in the ignition, the hood of the car was warm, and the car’s headlights were on. After the defendant woke up, the officer observed a partially consumed bottle of alcohol in the car. The officer also observed a strong odor of alcohol coming from the defendant and that the defendant was unsteady on his feet. The defendant was subsequently arrested for DWI and taken to the police station.
At the police station, the officer asked the defendant several routine booking questions, such as what his social security number was. In response to these questions, the defendant stated, “All I did was, I fall–I fell asleep and ran over there to the fence.” At trial, the defendant denied making this statement and challenged its admission as a violation of his Miranda rights. The court rejected the defendant’s argument, reasoning that while “Miranda warnings are required when the defendant is being subjected to a custodial interrogation,” in this case, the defendant was not being interrogated.
The court noted that “[t][he United States Supreme Court has defined interrogation under Miranda to ‘refer not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.’” The North Carolina Supreme Court has further explained this definition, “holding that interrogation does not include routine informational questions posited to a defendant during the booking process.” Analyzing the factual situation in Mack, the court concluded that the officer could not “have reasonably anticipated a self-incriminatory answer” in response to the routine booking questions, and the defendant’s statement was therefore admissible.
The court then went on to conclude that the direct evidence of the defendant’s statement, together with the circumstantial evidence of the keys in the ignition, the headlights of the car being on, the warm hood of the car, and the defendant sitting in the driver’s seat, “was sufficient to allow a reasonable jury to infer that defendant drove the vehicle on a public street.”
If you have been charged with DWI, contact an attorney at Rosensteel Fleishman, PLLC (704) 714-1450, to discuss your options.