Carolina Criminal Defense & DUI Lawyer UpdatesThe North Carolina Court of Appeals filed State v. Alston, No. COA25-291, on February 18, 2026, resolving an appeal arising from a driving-while-impaired conviction entered upon an Alford plea in Alamance County Superior Court. The opinion addresses two distinct issues that arise regularly in DWI defense practice:
- What the totality-of-the-circumstances standard actually demands when a defendant challenges the facial validity of a probable cause determination based on officer observations?
- What appellate rights survive when a defendant enters a guilty or Alford plea without first cataloguing every intended issue to preserve?
The holding on the suppression issue is unremarkable in its outcome but instructive in its method. The Court walks through each of the challenged findings of fact, evaluates whether competent evidence in the record supported each, and affirms the trial court’s conclusion that the officer had probable cause to arrest for impaired driving under the totality of the circumstances. The holding on the motion in limine is the more consequential piece for practitioners.
The Court dismissed that portion of the appeal for lack of jurisdiction, holding that the denial of a motion in limine is not among the enumerated grounds on which a defendant who has pleaded guilty may appeal as of right. Specifically, a petition for writ of certiorari is required.
TL;DR – The Court in Alston affirms the denial of Defendant’s motion to suppress, finding that competent evidence supported each of the findings of fact challenged on appeal and that the totality of those circumstances gave the officer probable cause to arrest for impaired driving. The Court dismissed the motion in limine portion of the appeal for lack of jurisdiction because a defendant who pleads guilty has a statutory right of appeal limited to enumerated grounds under N.C. Gen. Stat. §§ 15A-979 and 15A-1444. A denial of a motion in limine is not one of those grounds, thus a petition for writ of certiorari may be required.
Motion to Suppress | Probable Cause for Impaired Driving Arrest
A lawful DWI arrest requires probable cause.
The Court applied the formulation most recently articulated in State v. Woolard, 385 N.C. 560, 570, 894 S.E.2d 717, 725 (2023). An officer has probable cause to arrest for impaired driving when, under the totality of the circumstances, the officer reasonably believes the defendant consumed a sufficient quantity of an impairing substance to as to appreciably impair their mental and/or physical faculties.
N.C. Gen. Stat. § 20-138.1 makes it unlawful to drive while under the influence of an impairing substance or with an alcohol concentration of 0.08 or more at any relevant time after driving. “Under the influence” means the driver has consumed a sufficient quantity of an impairing substance to cause appreciable impairment of bodily or mental faculties. Someone is “appreciably impaired” when impairment can be recognized and described.
KEY TIP: On appeal from a suppression ruling, findings of fact are deemed conclusive and binding if supported by competent evidence unless specifically challenged and even where the record might support a contrary finding. Conclusions of law are reviewed de novo.
Alston 2026 | Challenging Findings of Fact
Finding 1: Bad driving — Defendant nearly “hit” the officer. Officer testified Defendant’s vehicle came from his left at approximately 10 to 15 miles per hour, driving straight at him, causing him to move to avoid being struck. Defendant argued the bodycam footage contradicted the testimony in material respects. The Court reviewed the footage and concluded it aligned with the account. Finding upheld.
Finding 2: Defendant used the car door for balance. Officer testified Defendant had to continually hold the door handle to stand upright. The bodycam footage confirmed repeated contact with the vehicle door and continual adjustment of footing during the officer-defendant interaction. Finding upheld.
Finding 3: Slurred speech. Defendant argued the footage could not establish slurred speech without a baseline comparison with normal speech patterns. The Court was unpersuaded. Officer testified twice on direct and confirmed the finding on both cross and redirect. His testimony alone constituted competent evidence. Finding upheld.
Finding 4: Strong odor of alcohol. Defendant did not specifically contest the evidentiary basis for this finding but argued that the odor of alcohol, standing alone, was insufficient for probable cause. The Court agreed the finding did not stand alone. It accepted the trial court’s finding as supported and treated it as one factor within the broader totality analysis.
Finding 5: Red, glassy eyes. The analysis mirrors Finding 4. Officer testified Defendant’s eyes were “glossy, yellow, and hazed over” and confirmed on cross that they were “bloodshot and glassy, red.” These observations contributed to his opinion that Defendant was appreciably impaired. Finding upheld.
Finding 6: Admission to drinking. Officer initially misstated during testimony that Defendant had admitted consuming “several drinks.” Bodycam footage showed the defendant actually responded “not much at all.” On cross-examination, Officer conceded the overstatement. The Court nonetheless upheld the finding as written, to wit: Defendant admitted to drinking prior to driving, noting that the finding contained no characterization of the quantity consumed and was therefore supported by both the testimony and the footage. Finding upheld.
Finding 7: Refusal to perform field sobriety testing. Defendant argued this was improperly used as a probable cause factor. The bodycam footage showed Officer asking whether Defendant would be willing to complete any tests, to which Defendant immediately responded, “No, like seriously, like, why would I?” Officer then placed the defendant under arrest. After arrest, the defendant consented and completed the tests. The Court found the pre-arrest refusal was properly considered as one factor within the probable cause analysis. Finding upheld.
Totality of the Circumstances | Probable Cause
With the challenged findings supported by competent evidence and therefore binding on appeal, the Court had no difficulty affirming the probable cause determination. Erratic driving, odor of alcohol, red and glassy eyes, admission to drinking, and HGN test performance, in their totality, may support probable cause to arrest.
Probable Cause Decision Tree — State v. Alston (Feb. 18, 2026)
| Question | Application in Alston | |
| Did the officer observe driving conduct suggesting impairment? | Yes – Vehicle driven at 10–15 mph directly at the officer, requiring evasive movement | |
| Did the officer observe physical indicia of impairment after the stop? | Yes – Strong odor of alcohol, slurred speech, glassy/red eyes, used door for balance | |
| Did the driver make statements supporting probable cause? | Yes – Admitted to drinking at a bar before driving | |
| Did the driver’s conduct at the scene add to the totality? | Yes – Pre-arrest refusal of field sobriety testing | |
| Under the totality, could a reasonable officer believe the driver was appreciably impaired? | Yes – Totality standard satisfied & arrest lawful |
Motion in Limine | Alford Plea
The Fundamental Limitation on Guilty Plea Appeals
Alston serves as a word of caution for upper-level DUI defense work, at least relative to preserving certain issues for appeal. In North Carolina, the right of appeal in a criminal proceeding involving a Guilty Plea is largely a statutory construct.
The General Assembly provides a narrow list of exceptions, wherein a defendant who pleads guilty may appeal the following:
- Whether the sentence is supported by the evidence (if the minimum term falls outside the presumptive range)
- Whether the sentence results from an incorrect prior record or conviction level finding under N.C. Gen. Stat. § 15A-1340.14 or § 15A-1340.21
- Whether the sentence contains a disposition type not authorized under § 15A-1340.17 or § 15A-1340.23 for the defendant’s class and prior record level
- Whether the sentence contains a term of imprisonment not authorized by those same statutes
- Whether the trial court improperly denied a motion to suppress pursuant to N.C. Gen. Stat. § 15A-979(b)
- Whether the trial court improperly denied a motion to withdraw a guilty plea
The denial of a motion in limine does not appear anywhere on that list. N.C. Gen. Stat. § 15A-1444 provides a safety valve of sorts. A defendant may petition the appellate division for review by writ of certiorari.
Appeal | Motion to Suppress
The contrast between the suppression ruling (which survived appellate scrutiny) and the in limine ruling (which did not) is worth examining carefully, because both issues came out of the same case on the same day.
A defendant who intends to appeal the denial of a suppression motion needs to give notice of that intent to the prosecutor and the court before plea negotiations are finalized, or the statutory right of appeal is likely waived. The transcript in Alston confirms Defendant did exactly that.
Preservation of a suppression appeal may be established by a defendant’s intent appearing in the transcript of the plea.
The Alford Plea | No Special Appeal Rights
The Court treats a Defendant’s Alford plea as substantively equivalent to any other guilty plea for purposes of appeal rights.
An Alford plea, rooted in North Carolina v. Alford, 400 U.S. 25 (1970), allows a defendant to maintain a claim of innocence while acknowledging that the evidence of guilt is sufficiently strong that pleading guilty is in her best interest. A protestation of innocence does not expand appellate remedies.
Alford | Guilty Plea Appeal Rights State v. Alston (2026)
| Issue Defendant Wants to Appeal | Statutory Basis | Available After Guilty/Alford Plea? | Preservation Requirement |
| Denial of motion to suppress | N.C. Gen. Stat. § 15A-979(b) | Yes | Notice of intent given to prosecutor and Court before plea negotiations close |
| Denial of motion in limine | None enumerated | No – Not a statutory right of appeal | Must petition for Writ of Certiorari § 15A-1444(e)
No petition = No jurisdiction |
| Sentence outside presumptive range | N.C. Gen. Stat. § 15A-1444(a1) | Yes | Automatic |
| Incorrect prior record level | N.C. Gen. Stat. § 15A-1444(a2) | Yes | Automatic |
| Motion to withdraw guilty plea denied | N.C. Gen. Stat. § 15A-1444(e) | Yes | Petition required |
| Any other pre-trial or evidentiary ruling | None | No | Without Certiorari | Petition for writ of certiorari under § 15A-1444(e) |
Alston in Practice | Criminal Defense Strategy
On the Suppression Side
Alston does not necessarily establish new law on probable cause for DWI arrests.
Relative to Motions to Suppress, challenged finding of fact are evaluated independently before a totality of the circumstances analysis is applied by the trial Court.
Defense counsel challenging officer observations would be wise to focus not merely on whether individual factors are sufficient on their own. The appellate court makes clear in Alston that, while the State conceded no individual factor was dispositive, the question was whether each specific finding is actually supported by competent evidence.
The bodycam footage was critical, as was the appellate Court’s apparent willingness to review the same, independently in analyzing the accuracy of the Findings of Fact, relative to the defendant’s Motion to suppress for lack of probable cause.
Indeed, the appellate court reviewed the footage directly and compared it to the officer’s trial testimony. When a Defendant fails to explain how footage differs from Findings of Fact, challenges to those Findings will fail. Any attempt to undermine the findings requires concrete inconsistencies between the testimony and the bodycam footage, not simply to highlight that the footage is incapable of confirming the officer’s characterization.
Frequently Asked Questions | DWI Probable Cause and Guilty Plea Appeals in NC
Probable cause. Under North Carolina law, that means the officer has reasonable grounds, based on the totality of the circumstances, to believe the driver consumed an impairing substance in a sufficient quantity to appreciably impair mental or physical faculties. No single observation establishes probable cause on its own. Driving conduct, physical appearance, statements made at the scene, and performance on field sobriety tests all factor into that analysis, depending on what the officer observed. What does a police officer need to arrest someone for DWI in North Carolina?
Body camera footage, when it exists and when the State produces it, is one factor that may be relevant in a North Carolina DWI case. What the footage shows, what it does not show, and how it compares to the officer’s written report and testimony are all questions a DWI defense lawyer works through as part of evaluating the strength of a probable cause challenge. Does police body camera footage help fight a DWI charge?
Drivers in North Carolina are not required to perform standardized field sobriety tests. Choosing not to perform SFSTs can factor into an officer’s probable cause analysis alongside everything else the officer observes. The decision to arrest for DWI in North Carolina ordinarily involves a totality of the circumstances analysis, where the officer considers things like driving behavior, overall demeanor, a positive indication on the PBT (portable breath test), and other possible indicators of appreciable impairment.
An Alford plea allows a defendant to plead guilty while maintaining a claim of innocence. The defendant acknowledges that the evidence against them is strong enough that pleading guilty serves their interests, even while contesting guilt. For purposes of appellate rights in North Carolina, an Alford plea carries the same limitations as a standard guilty plea.
The right to appeal after a guilty plea in North Carolina covers a narrow set of circumstances defined by state statute. Challenging an evidentiary ruling, such as the admission of a toxicology report or expert testimony, falls outside those enumerated grounds. Preserving that type of issue after a guilty plea requires filing a petition for writ of certiorari. Without that petition, the Court of Appeals has no jurisdiction to review the issue, and that portion of the appeal gets dismissed. Do you have to perform field sobriety tests in North Carolina?
What is an Alford plea?
Can you appeal a DWI conviction after taking a plea deal in North Carolina?
A DWI charge in North Carolina can carry a range of consequences that vary significantly depending on the facts of the arrest, prior driving history, and how the case develops. Speaking with a North Carolina DWI defense lawyer early in the process matters because decisions made shortly after an arrest can affect how a case unfolds. What happens if you get a DWI in North Carolina?
DWI Defense in NC | State v. Alston, Probable Cause to Arrest & Alford Pleas
State v. Alston addresses two general areas of law North Carolina DWI defense lawyers regularly encounter, those being Probable Cause to Arrest and guilty pleas. Probable cause analysis governs whether an arrest survives a suppression motion. The appellate rights framework governs what a defendant can challenge after a guilty plea.
The jurisdictional holding in Alston serves as a reminder of sorts. Preserving anything beyond a suppression ruling may requiring filing a petition for Writ of Certiorari, and that step may be required before the guilty plea is finalized.
Bill Powers has handled DWI defense in North Carolina courts for more than three decades. He is Board Certified in Criminal Law by the National Board of Trial Advocacy / North Carolina Board of Legal Specialization, a former President of the North Carolina Advocates for Justice, received the North Carolina State Bar’s John B. McMillan Distinguished Service Award, is the author of the NC DWI Quick Reference Guide, and serves on the Statewide Impaired Driving Task Force under Governor Stein.
If you have questions about a DWI charge or a suppression issue in North Carolina, contact Bill Powers and the criminal defense lawyers at Powers Law Firm at 704-342-4357 or Bill@CarolinaAttorneys.com