1. Pretrial Detention in Impaired Driving Cases Jim Drennan District Court Judges Conference June 2004

2. State v. Hill, 1971 (Supreme Court)  Defendant held under “4 hour rule”; denied access to lawyer  Case dismissed for lack of access during critical time for observation of impairment  “... right of a defendant to communicate with counsel and friends, implies, at the very least, the right to have them see him, observe and examine him, with reference to his alleged intoxication.”

3. State v. Gilbert, 1987  Defendant not told by magistrate that he had right to pretrial release; held for four hours; allowed to see his brother  Violation of pretrial release laws not to set conditions; but not sufficient prejudice to justify dismissal  No violation of right to access by witnesses

4. State v. Ferguson, 1988 (one week before Knoll)  Defendant’s wife denied access to breathalyzer room on grounds she got there too late (factual dispute about that)  She was denied access for 90 minutes, until he was released  Court sets standard—did witness make “reasonable efforts to gain access”  Violation of that standard, where under the influence is only ground to proceed, is grounds to dismiss.

5. State v. Knoll, 1988 (Supreme Court)  Defendants held without bond for 6-7 hours  Defendants had responsible adults seeking to obtain their release, or had means to secure taxi to be taken to such adults  Trial court found that defendants did not present danger if released, as would have been required to comply with 15A-534.2

6. State v. Knoll, 1988 (Supreme Court)  Trial court found prejudice in denial of access to observers, additional tests  No per se prejudice rule –Very high alcohol readings, but court nonetheless found trial court’s findings to justify dismissal  Would procedure of 15A-534.2, if followed, satisfy Knoll?

7. State v. Eliason, 1990  Defendant was held on $300 secured bond  Wife not allowed to use property for bond  Defendant held for three hours, but no evidence that wife sought or was denied access to him  Held: No violation, even though magistrate did not consider all possible factors listed in 15A-534

8. State v. Ham, 1992  Defendant held on $300 bond, but would be reduced to $100 if responsible adult assumed responsibility or if five hours passed  Defendant called friend; said bond is $300 or $100 after five hours  Held: No substantial violation, since release order contained correct information, even though when magistrates office called, info about responsible adults was not communicated to defendant’s friend

9. State v. Haas 1998  Issue on appeal was sufficiency of trial court’s findings about denial of access to friends and his release to responsible adult  Court of Appeals found findings to be sufficient; Defendant was allowed to use phone and was visited by friend; evidence of friend’s lack of sobriety supported decision to deny release  Even if violation found (in not considering all factors) was not prejudicial

10. State v. Lewis, 2001  Providing defendant with access to phone is sufficient to comply with statutory and constitutional rights of access to friends and family  Defendant’s inability to use phone does not impose duty on police to assist (dictum)

11. State v. Rasmussen, 2003  Defendant’s access to attorney before intoxilyzer test administered governed by 20-16.2, and not by 15A-501(5); no constitutional right to attorney at that stage  Request for attorney must be clear and unambiguous

12. State v. Ellenberg (unpublished), 2002  Delay of three and a half hours in securing fingerprint, while wife waited to see defendant, was not a violation of right to access –Wife asked magistrate about husband, but not Arrest Processing Desk; court noted her failure to ask that desk for access –Jailer testified that jail policy was to deny access until after fingerprinting

13. Test for Motion to Dismiss  Has there been a violation of statutory or constitutional right? –To have conditions set—Knoll, Gilbert –To have access to witness or attorney—Hill, Ferguson Reasonable efforts—Ferguson, Ellenberg, Rasmussen –To have access to separate test--Knoll

14. Test for Motion to Dismiss  Is the violation substantial? –Failure to consider all factors—Eliason, Haas

15. Test for Motion to Dismiss  Does the violation cause irreparable prejudice to preparation of defendant’s case? –Length of time Hill—four hours Ham—chemical testing procedures –Is per se prong of DWI statute in issue? Knoll, Gilbert—no per se prejudice when per se evidence used Hill, Ferguson—without per se prong, found prejudice

16. Final Thoughts  Most appellate cases involve defendant’s appeals; factual situations are not.  Finding prejudice in cases involving high alcohol readings is not common, after Knoll  Appellate cases often turn on trial court’s findings  New form may help promote compliance with GS 15A-534.2