DWI Procedures: Navigating the Maze

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1 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 Noted several problems: MTS has formalized process with required affidavit and does not. DA is not getting any notice of motions- no opportunity to prepare/respond State can t appeal MTS to The Fix Motor Vehicle Driver Protection Act of 2006 Codified and Motions must be made pretrial - No double jeopardy bar Invented preliminary indication Written Findings of Fact and Conclusions of Law required 1

2 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 Motions to Suppress In Writing v. Not in Writing Filing before the day of court v. day of court State s Remedy in (b) ( State shall be granted reasonable time to procure witnesses or evidence and to conduct research required to defend against the motion. ) 2

3 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. ( , s. 5.) The Preliminary Indication 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. 3

4 Four Stages Four stages (generally) Stage 1: Preliminary Indication Stage 2: Decision and Remand Stage 3: Final Order of Dismissal/Suppression Stage 4: Decision on s Final Order (in the case of a MTD) 15A-1432 and MTDs 15A 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 dismissing criminal charges as to one or more counts. (must be made within 10 days per 15A-1432(b)) 4

5 15A-1432 Also see 15A-1432 (d): if Superior reverses the 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 affirms the 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 (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 at Where Things Go Off the Rails 5

6 State v. Hutton D won a MTS in State appealed Preliminary Indication to reversed. did not enter final order on MTS, but D appealed to Superior Court D pled guilty in 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 at Stage 3? Or is just that you should refile your MTS in at Stage 4? That seems like the real key BUT In Practice Post-Hutton If reverses preliminary indication & remands, you must get a judge to enter a FINAL ORDER on your Motion to Suppress. Post final-order à trial v. pleading guilty 6

7 In Practice After trial or guilty plea, give Notice of Appeal to Superior Court within 10 days per NCGS 15A 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. 7

8 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 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 Practice. 8

9 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 State can appeal per 15A-979(c), 15A-1445(b) 2 D wins De novo appeal per 15A-1431(b) for new trial 1 - D loses- and is convicted 9

10 MTS 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) 2 D loses De novo appeal for new trial 1 - D loses- and is convicted MTS Is it over? Probably 2 D wins again 4- D wins yet again 1 - D wins 3 final order State can try Rule 19 Cert Petition to Sup. Ct. per General Rules of Practice MTS 2 D wins again 4- D loses 6 new trial 1 - D wins 3 final order Rule 19 Cert Petition De novo appeal 5 final order (again) D is convicted 10

11 MTS 2 D loses 4 - new trial 1 - D wins 3 Final order- D is convicted De novo appeal for new trial Pretrial MTD State can appeal per 15A-1432(e) 2 D wins De novo appeal for new trial 1 - D loses- and is convicted Pretrial MTD D can appeal per normal appeal to COA 2 D loses De novo appeal for new trial 1 - D loses- and is convicted 11

12 Pretrial MTD 2 D loses 4 new trial De novo appeal for new trial 1 - D wins 3 final order Pretrial MTD State appeals per 15A-1432(e) 2 D wins 4 D wins State appeals per 15A-1432(a) 1 D wins 3 final order Pretrial MTD (D can try interlocutory appeal 15A-1432(d)) 2 D wins 4 D loses 6 new trial 1 D wins 3 final order State appeals per 15A-1432(a) Normal appeal 5-final order (again) D is convicted 12

13 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. 13

14 What does on its own motion mean? A Texas grand jury investigating allegations of misconduct against Planned Parenthood after the release of covertlyshot videos about the use of fetal tissue from abortions has instead indicted two antiabortion activists who made the videos, 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)). 14

15 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? 15