Recent Court Decision

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By: Allen Brotherton

In addition to the statutes passed by the legislature, the law is developed and explained through decisions of the appellate courts. These decisions of course control the particular cases involved, but the stated reasoning also applies to guide lower courts in future cases as well. There is an old adage that “hard cases make bad law”, meaning that when an appellate court wants to reach a particular result it will often have to resort to strained analytical gymnastics that will lead to bad results in the future. Nowhere does this adage apply more often than in the realm of DWI cases, where appellate courts seem reluctant to reach any decision that will overturn a conviction. Indeed, criminal defense attorneys often joke about the “DWI exception to the Constitution.” This trend continued last year with a questionable appellate decision from the Court of Appeals.

The ruling concerns the grounds required to permit a stop by police of a motor vehicle on the streets of North Carolina where the officer observes no illegal driving. In State v. Hess, decided late last year, a police officer pulled in behind a car being driven at night in Rowan County. The court recited the evidence as follows: “It was dark and Officer Doty could not determine the sex, race, or ethnicity of the driver of the Pontiac, or how many individuals were riding inside. Officer Doty traveled behind the Pontiac for approximately a mile, maybe two miles and did not observe the driver of the vehicle commit any traffic violations or weave in the lane of travel. Nevertheless, Officer Doty ran the registration plate that was attached to the rear of the vehicle through a computer in his patrol car. Officer Doty discovered that the vehicle was registered to Defendant. He then ran Defendant’s license number from the registration information and determined that Defendant’s license had been suspended. Once he had this information, but still not knowing whether Defendant was driving the vehicle, Officer Doty activated the blue lights on his patrol car and stopped the Pontiac. When he approached the Pontiac, Officer Doty found that Defendant was operating the vehicle.” As a result of the stop, defendant was arrested and ultimately convicted of DWI and driving while license revoked.

The Fourth Amendment requires a reasonable and articulable suspicion, based on objective facts, that an individual is involved in criminal activity before a vehicle may be stopped for investigation. The Court of Appeals held that it was reasonable for the officer to infer that the owner of the vehicle was the person driving the car “in the absence of evidence to the contrary.” The court did not discuss any factors addressing why this inference might or might not be reasonable, such as the way our state insurance laws assume spouses or other household members will share vehicles, or the obvious idea that one with a revoked license might seek someone else to drive. Instead, the court looked to decisions of other states faced with the same question and without analysis adopted the view of what it termed “the majority.” (In fact, the court cited only six states as supporting its decision while acknowledging that two others disagreed). It is very unusual for our courts to be swayed by other states without at least undertaking a critical analysis of the rationale.

No matter how analytically deficient, this decision is now the law in North Carolina. Thus, if you value your right to proceed down the highway free from governmental interference, you must know a lot about the registered owner of the vehicle you are driving. If the owner of the vehicle is not licensed, has an arrest warrant outstanding, or is otherwise subject to police scrutiny, and a police officer cannot tell you are not the owner (e.g., if you are the same gender/race as the owner, or if it is dark), then you may be stopped for investigation without any other justification.

Allen Brotherton is an attorney with Knox Law Center, specializing in criminal defense. Mr. Brotherton, along with three other attorneys, are Lincoln County residents. Please visit the firm’s websites at to learn more information. The firm has offices in Denver, Cornelius, and Charlotte.

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