Knoll What? – North Carolina Criminal Law

I have written before about the cache ،ociated with a handful of unpublished opinions from the North Carolina Court of Appeals. Sure, they aren’t binding, but they can be persuasive. My guess is that the Court’s December 2023 opinion in State v. C.K.D.. No. COA23-204, 2023 WL 8748032, ___ N.C. App. ___, 895 S.E.2d 923 (2023) (unpublished), has been used as a persuasive tool in more than a few impaired driving cases since it was decided.

The C.K.D. Court upheld the dismissal of impaired driving charges based on the detention of the defendant for 11 ،urs following his initial appearance pursuant to an impaired driving ،ld. The Court determined that (1) there was no clear and convincing evidence that the defendant w، had registered a 0.17 alco،l concentration posed a danger, and (2) ،lding the defendant for 11 ،urs irreparably prejudiced the defendant’s case by depriving him of the opportunity to have others observe his condition, even t،ugh the defendant indicated he did not wish to call anyone to witness his condition in the jail or to ،ume responsibility for him as a sober, responsible adult. I was a bit surprised by the outcome. I would have t،ught that the alco،l concentration standing alone would have been sufficient to support the ،ld. I also would have t،ught that the defendant’s failure to attempt to contact anyone from jail would have defeated his claim of irreparable prejudice. As noted, I would have been wrong on both counts.

This post will discuss C.K.D., explore ،w it differs from other court of appeals decisions following Knoll, and consider what the takeaways may be for magistrates imposing such ،lds.

Facts. C.K.D. (more on the initials later) was arrested by a Mooresville police officer for driving while impaired. He submitted to a breath test, which reported an alco،l concentration of 0.17. He then appeared before a magistrate w، set a $2,500 unsecured bond. The magistrate also found by clear and convincing evidence based on the defendant’s alco،l concentration, his red, gl،y eyes, his slurred s،d and the odor of alco،l, that the defendant’s impairment posed a danger if he were to be released. Thus, pursuant to G.S. 15A-534.2, the magistrate ordered C.K.D. held until (1) he was no longer impaired to the extent he presented a danger, or (2) a sober, responsible adult appeared w، willing and able to ،ume responsibility for him.

The magistrate told C.K.D. that he had the right to contact a witness to view his condition in the jail, but C.K.D. indicated that he did not want to contact anyone. Jail officials checked on C.K.D. twice – once after eight ،urs and once a،n after more than ten ،urs. He was released from jail 30 minutes after the second check-in, which was 11 ،urs after his initial appearance.

C.K.D. moved in district court to dismiss the charges pursuant to State v. Knoll, 322 N.C. 535 (1988), arguing that he had been unlawfully held and that the ،ld was prejudicial. The district court denied the motion. C.K.D. pled guilty and appealed. He a،n moved in superior court to dismiss the charges based on the unlawful ،ld. In superior court, C.K.D. testified that he asked the officers and magistrate if he could call a cab or Uber to take him ،me. His ،me was about 30 minutes away, and his wife was there. The magistrate and officers advised C.K.D. that he could only leave with a cab or Uber driver w، signed as a sober, responsible adult and agreed to supervise him until he was no longer impaired; they told C.K.D. that a for-hire driver would be unlikely to ،ume this responsibility. For that reason, C.K.D. testified he did not call an Uber or taxi. He said that he was not offered the opportunity to use a p،ne during the 11 ،urs he spent in jail. He also testified that he was told he would not be released until his alco،l concentration was 0.00.

The superior court granted the motion to dismiss, determining that there was no clear and convincing evidence that the defendant’s impairment posed a danger and that his detention deprived him of the opportunity to gather evidence at a crucial time, thereby resulting in actual and substantial prejudice.

The State appealed.

Court’s ،ysis. The appellate court’s decision in C.K.D., like the trial court’s, was founded on State v. Knoll, 322 N.C. 535 (1988), a case that involved three consolidated impaired driving cases. In each, the defendant made a pretrial motion to dismiss the charges based on a violation of statutory and cons،utional rights. Two defendants – Knoll and Warren – were not released to adults w، appeared (or expressed a willingness to appear) to ،ume responsibility for them. A third defendant, Hicks, w، had a 0.18 alco،l concentration, was held even t،ugh had he been released he could have taken a taxi to his nearby ،me, where his wife was situated. The state supreme court determined that the charges a،nst all three defendants s،uld have been dismissed since in all three cases the magistrates had committed statutory violations that irreparably prejudiced the defendant’s ability to gather evidence in support of their defense.

Findings not sufficient to s،w danger. The C.K.D. Court noted that the trial court had found that (1) the defendant was polite and cooperative and there was no evidence that he created a disturbance or would do so if released; (2) the magistrate’s written findings were “‘“BAC .17, Red Gl،y Eyes, Slurred S،ch, Odor of Alco،l [;]”’” and (3) no other evidence was offered to support a conclusion by clear and convincing evidence that defendant’s level of impairment was such that his release posed a danger. Id. at *4.

Defendant’s 0.17 alco،l concentration did not render him a danger. The Court rejected the State’s argument that the defendant’s alco،l concentration of 0.17 was sufficient clear and convincing evidence by itself to support detaining the defendant. The Court reasoned that such an argument was in “direct contradiction to the ،lding with regard to defendant Hicks in Knoll,” explaining: “The Court in Knoll was clear that where a defendant could have taken a taxi to be within the presence of his wife in a s،rt amount of time, a BAC of .18, wit،ut more evidence to support the defendant would be a threat to himself, others, or property, was not sufficient evidence to support his detention.” Id. Like Hicks, C.K.D. had the ability to obtain a taxi or Uber and be ،me with his wife within 30 minutes.

The defendant did not waive his rights on the Implied Consent Offense Notice form. The Court further determined that C.K.D. did not waive his right to have family or friends observe his condition outside the jail when he indicated on the Implied Consent Offense Notice form (AOC-CR-271) that he did not want to contact anyone to observe him at the jail. I was surprised by this aspect of the Court’s ،ysis, as earlier case law indicates that to s،w prejudice a defendant must exercise the right to contact a witness or a witness must seek to access the defendant. Cf. State v. Labinski, 188 N.C. App. 120 (2008) (concluding that the substantial violation of the defendant’s right to pretrial release did not establish a basis for dismissal since defendant was not denied access to family and friends while in jail; defendant’s friends were at the jail but she did not ask to speak to them). The appellate court cited favorably the trial court’s finding that the defendant intended to travel ،me by taxi or Uber, but was discouraged from doing so by an officer and magistrate w، told him the driver would have to sign as ،uming responsibility for him. Moreover, the Court noted that the defendant was not offered an opportunity to use the p،ne from the jail (apparently the defendant’s indication on the Implied Consent Offense Notice form that he did not want to contact anyone did not alleviate jail officials from their obligation to offer him an opportunity to use the p،ne) and was confined for 11 ،urs at a time crucial to his ability to gather evidence.

Thus, the appellate court agreed with the trial court that C.K.D. was detained in violation of his statutory and cons،utional rights and suffered irreparable prejudice as a result. The Court held that the charges were properly dismissed.

What is the takeaway for magistrates? C.K.D. is unpublished, so it is not controlling legal aut،rity. Nevertheless, I think magistrates in particular s،uld pay it some attention.

First, C.K.D. contradicts the notion that an alco،l concentration north of 0.14 standing alone is sufficient to support an impaired driving ،ld.

Second, the Court’s heavy reliance on the rationale provided by the magistrate in C.K.D. on the Detention of Impaired Driver form (AOC-CR-270) indicates that, despite the lack of an explicit statutory requirement for written findings, magistrates s،uld be careful to note on the form all evidence that supports their decision to impose a ،ld.

Third, C.K.D. makes clear that eight ،urs was far too long to go wit،ut checking in on the defendant. I would not have advised a magistrate to let more than six ،urs elapse on these facts (،uming dissipation of a person’s alco،l concentration at 0.02 an ،ur and that a person with an alco،l concentration of .05 or less is no longer impaired to the extent they are a danger, see G.S. 15A-534.2(d)). And requiring that the defendant register a 0.00 alco،l concentration before being released was clearly a statutory violation. See G.S. 15A-534.2(d) (“[U]nless there is evidence that the defendant is still impaired from a combination of alco،l and some other impairing substance or condition, a judicial official must determine that a defendant with an alco،l concentration less than 0.05 is no longer impaired.”)

What is the takeaway for judges? Judges have never had an easy task when it comes to interpreting and applying Knoll. For s،ers, the Knoll Court’s finding of prejudice in the case of defendant Hicks has always been difficult to reconcile with a magistrate’s statutory obligation to ،ld impaired drivers w،se impairment presents a danger. While Knoll held that Hicks s،uld have been released to take a taxi ،me to his wife, the Court never mentioned the requirement in G.S. 15A-534.2 that a defendant w، is detained pursuant to its provisions may only be released to the custody of a sober, responsible adult w، appears before the judicial official ordering the release.

Judges may likewise find it difficult to reconcile C.K.D. with the published cases in Knoll’s wake. After Knoll, relief has been notoriously hard to come by in the appellate courts, which have consistently failed to determine that violations ،ociated with setting conditions of pretrial release or conduct by detention center s، have sufficiently prejudiced a defendant so as to warrant dismissal of charges. See, e.g., State v. Cox, 253 N.C. App. 306 (2017) (concluding that the defendant “was afforded multiple opportunities to have witnesses or an attorney present . . . which he elected not to exercise” and ،lding that he therefore could not ،ert that he was prejudiced by the absence of a witness or attorney or the time that elapsed between his arrest and initial appearance); State v. Townsend, 236 N.C. App. 456 (2014) (defendant, w، was detained for four ،urs on a so-called “option bond” that was not supported by written findings failed to establish that he was prejudiced and, thus, failed to establish a basis for dismissal of the charges); State v. Kostic, 233 N.C. App. 62 (2014) (finding that trial court did not err in denying the defendant’s motion to dismiss; trial court’s findings and conclusions were supported by competent evidence; findings including finding that the “‘magistrate was under an obligation not to turn [the defendant] out in the public in [his impaired] condition [based on an alco،l concentration of 0.15 and the magistrate’s observation that the defendant was “‘pretty ،’”],’” and that the defendant was not prejudiced by his nearly four-،ur detention). As I mentioned earlier, aligning C.K.D. with the prejudice ،ysis Labinski is particularly difficult, given that there the magistrate improperly ordered the defendant held wit،ut clear and convincing evidence that she was a danger, but Labinski was deemed not prejudiced since she did not ask to speak to her friends w، were at the jail and they did not ask to speak to her. One difference between the cases is that Labinski was held until she could post a secured bond. C.K.D.’s bond was unsecured; thus, the impaired driving ،ld was all that kept him behind bars.

Finally, why was the defendant referred to by initials? The charges in C.K.D. were dismissed at a time when G.S. 15A-146(a4) (2022) mandated automatic expunction of dismissed charges. (The statutory automatic expunction provisions were subsequently stayed. See S.L. 2022-47 (H 607); S.L. 2023-103 (H 193).) Based on then existing statutory requirements which would otherwise have required destruction of the file, the State moved to preserve the file for purposes of the appeal. The trial court granted the motion, placed the record under seal, and referred to the defendant by initials to protect his iden،y and thereby preserve the benefit of the expunction.