Time Out! What is Probable Cause for NC DWI Cases?

Time Out!  What is Probable Cause for NC DWI Cases?

If you’ve been in District Court in North Carolina, most likely you’ve heard mention of two relatively recent cases that the Courts have been bantering about.

“Have you heard about Townsend? That’s it, there is no such thing as PC in North Carolina.  Smell of booze is enough to arrest.”  Shortly thereafter someone brings up, “Yes, but what about Overocker?  That’s a published decision too, right?”

How does one square two apparently divergent opinions?  

Townsend and Overocker at first blush appear to be at cross-purposes.

Townsend’s Probable Cause standard could be seen as de minimis; Overocker can be inferred as more demanding or rigorous.  Before thinking the Court of Appeals has lost its mind, consider this:  The standard for Probable Cause in North Carolina has not changed since North Carolina v. Zuniga.

While some lawyers conflate factual recitations and binding precedent, both cases confirm a longstanding precept in North Carolina:  The Judge decides.

Indeed, some might wonder why cases are being appealed to the Court of Appeals.  Truth be told, when it comes to probable cause, there really isn’t anything new under the sun.  Neither Townsend nor Overocker serve as a sea-change in legal theory in North Carolina.

In 1964, United States Supreme Court Justice Stewart penned the following words in Jacobellis v. Ohio:


I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description [“hard-core pornography”], and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.


The phrase “I know it when I see it,” has become a colloquialism and relates to when a speaker attempts to explain an observable event, although inferences drawn from observation are subjective and at times lack clearly defined parameters.

Probable Cause in a Driving While Impaired case is not formulaic. Neither is Probable Cause a standard where the State need only show minimal facts sufficient for an arrest without a warrant.

The Fourth Amendment remains alive and kicking in North Carolina.  Absent a Warrant, it demands careful consideration and no small amount of “arm-chair-quarterbacking”by the Court.

Probable Cause requires balancing the facts as known on the scene and the opportunity to observe and fairly come to a conclusion.

It can be difficult to explain to anxious clients that the whole shooting match is left to the discernment of one person. . .the Judge.

But for an abuse of discretion by the Court, which is both a term-of-art and the legal standard for appeal, the North Carolina Courts of Appeal will not overturn the decision of a Superior Court Judge for seeing or not seeing Probable Cause.

The most important language in the opinions is this:


“This deference is afforded the trial judge because he is in the best position to weigh the evidence, given that he has heard all of the testimony and observed the demeanor of the witnesses. . . . ‘[B]y reason of his more favorable position, [the trial judge] is given the responsibility of discovering the truth.'” State v. Hughes, 353 N.C. 200, 207-08, 539 S.E.2d 625, 631 (2000) (quoting State v. Smith, 278 N.C. 36, 41, 178 S.E.2d 597, 601 (1971)).


Appellate Courts therefore give considerable discretion to Trial Courts, whom have the opportunity to hear live testimony, adjudge the credibility of charging officers and other witnesses, review video and audio recordings, compare supporting arrest documentation and therefrom make an ex post facto determination.

The scope of review on appeal of a defendant’s motion to suppress is strictly limited to determining whether the trial court’s findings are supported by competent evidence, in which case they are binding on appeal, and in turn, whether those findings support the trial court’s conclusions of law. State v. Cabe, ___ N.C. App. ___, ___, 524 S.E.2d 828, 830, disc. review denied, N.C. , S.E.2d (2000)(citations omitted).

The benchmark for probable cause clearly is not the bare minimum the State may prove to comply with the Fourth Amendment of the United States Constitution.

Consistent, fair application of standardized field sobriety testing, observational techniques and scientific evidence are minimum requirements.

The Courts of Appeal also have never proffered a simplistic equation stating “x + y = probable cause.”

Quite the contrary, our Courts of Appeal have stated Trial Courts may find probable cause considering certain factors, but by no means must in every instance find probable cause based upon those same factors, similar factors or lack thereof.  There are shades of grey.

Finally, both opinions are consistent with North Carolina v. Zuniga.  We trust the Courts because they are the ones with “boots on the ground.” That idea is now and how it has been, for about forever, in North Carolina.

One must therefore consider, in the totality of the circumstances, the facts surrounding the arrest for an implied consent offense.

Probable cause is at times difficult to discern in this area of law, as quasi-scientific and forensic factors often lead reasonably minded people to different conclusions.  One must review substantial, indeed sometimes panoply indicators of non-impairment that may outweigh perceived cues of impairment that related to factors other than the consumption of alcohol.

Proof of non-impairment may include, but is not limited to:

  1. Operation of a motor vehicle in a safe and lawful manner; and,
  2. Obeying all traffic control devices; and,
  3. Maintaining proper lane control; and,
  4. Properly utilizing signaling devices; and,
  5. Appropriately and in a timely fashion responding to emergency equipment; and,
  6. Pulling over to an appropriate location in a safe law and lawful manner; and,
  7. Placing vehicle in park; and,
  8. Rolling down the appropriate window to speak with officers; and,
  9. Providing upon demand without difficulty or incident a driver’s license or registration or insurance; and,
  10. Speaking in an normal, appropriate tone; and,
  11. Stepping out of a vehicle without difficulty or incident; and,
  12. Not using door frame to exit vehicle; and,
  13. Not using vehicle for support; and,
  14. Not leaning against vehicle; and,
  15. Walking in a smooth, steady fashion; and,
  16. Not swaying, staggering or stutter-stepping; and,
  17. Steadiness on feet; and,
  18. Orientation as to time, location and residence; and,
  19. Satisfactory performance on one or more Standardized Field Sobriety Tests; and,
  20. Clear, understandable speech; and,
  21. Mild or Non-Existent Odor of Alcohol; and,
  22. Polite, cooperative tone with officers.

The Fourth Amendment to the United States Constitution protects individuals “against unreasonable searches and seizures,” and Article I, § 20 of the North Carolina Constitution provides similar protection.


Generally, it is obvious when police arrest or seize a person


When it is not readily apparent, the Supreme Court has indicated that a seizure occurs only when a reasonable person would believe that he is not free to leave.  Michigan v. Chesternut, 486 U.S. 567 (1998).  This requires a physical application of force by the officer or a submission to the officer’s show of force.  California v. Hodari D., 499 U.S. 621 (1991).  The test is whether, under the totality of the circumstances, “a reasonable person would feel that he was not free to decline the officer’s request or otherwise terminate the encounter.”  Florida v. Bostick, 501 U.S. 429 (1991).

To be lawful, a warrantless arrest must be supported by probable cause.  State v. Zuniga, 312 N.C. 251, 259, 322 S.E.2d 140, 145 (1984).

“Probable cause for an arrest has been defined to be a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing the accused to be guilty…”  Id at 259 (Emphasis Added.)

Statutory authority to arrest without a warrant is set forth in N.C.G.S. §15A-401, whereby an “officer may arrest without a warrant any person who the officer has probable cause to believe has committed a criminal offense in the officer’s presence.”

§15A-401(c)(2)(b) mandates the law-enforcement officer “[M]ust:  (b) Inform the arrested person that he is under arrest, and (c) As promptly as is reasonable under the circumstances, inform the arrested person of the cause of the arrest, unless the cause appears to be evident.”

Caselaw in North Carolina sets forth the precept that probable cause for arrest is based on a totality of circumstances and is fact specific.


 “‘[I]f there is a conflict between the state’s evidence and defendant’s evidence on material facts, it is the duty of the trial court to resolve the conflict and such resolution will not be disturbed on appeal.'” State v. Veazey, 201 N.C. App. 398, 400, 689 S.E.2d 530, 532 (2009) (quoting -10- State v. Chamberlain, 307 N.C. 130, 143, 297 S.E.2d 540, 548 (1982)). “This deference is afforded the trial judge because he is in the best position to weigh the evidence, given that he has heard all of the testimony and observed the demeanor of the witnesses. . . . ‘[B]y reason of his more favorable position, [the trial judge] is given the responsibility of discovering the truth.'” State v. Hughes, 353 N.C. 200, 207-08, 539 S.E.2d 625, 631 (2000) (quoting State v. Smith, 278 N.C. 36, 41, 178 S.E.2d 597, 601 (1971)).

For more information on DWI DUI Impaired Driving and the Legal Standards in North Carolina, contact:

Bill Powers

2412 Arty Avenue, Charlotte, North Carolina 28208




Modified Transcript of ”  ” for the Hearing Impaired

Probable cause in North Carolina related to driving while impaired, that’s where we are on our website, we’re in the driving while impaired section, is probably; no pun intended, one of the most important aspects of a DWI defense, at least I can think of now because it determines what happens next.

Now people, often times, confuse probable cause, there’s a reason for it … we use the term back and forth with other terms and I wish we wouldn’t. You may hear probable cause as a likelihood or percentage chance, is synonymous with the term reasonable grounds; and they confuse that with reasonable suspicion and the other end, reasonable doubt. But probable cause is defined in North Carolina by statue and case law, is there is a reasonable likelihood or probability, that a police officer (law enforcement officer) believes that there is criminal activity afoot; in this case, driving while impaired. Probable cause is a determination of different factors. This has been something that our courts have really looked at in the last 10 years as well as the last two years with a series of cases. I’ve written a lot online about this but you’ll see the cases on North Carolina or sometimes referred to as State v. Townsend and North Carolina or State v. Overocker.  This sets forth the precept from an older case called North Carolina or State v. Zuniga. If you’re having trouble sleeping at night, or you really want to know about your DWI case, we got these materials available online and on this web page to take a look at.

The idea behind probable cause and these cases is that probable cause is not formulaic. It’s not de minimus, meaning how low can the state go and still somehow squeak underneath, I call it the legal limbo, squeak underneath that bar or measure and still with a straight face make a finding of probably cause.

DWI investigations, properly conducted ones, under NHTSA, National Highway Traffic Safety Administration, are meant to be a battery, they’re meant to be a totality of the circumstances, they’re meant to include: Phase I vehicle invocation; Phase II personal contact; Phase III dexterity test, possibly an alco-sensor, hand-held blowing device.

This concept of probable cause, is not formulaic, it’s not how low, like any bad driving and odor of alcohol. What the cases say, and it makes sense, is that the Courts of Appeals, in judging Superior Court and Superior Courts in reviewing probable cause in district court, is that one we’re seeing if courts are abusing their discretion in making these decisions, which is a pretty high standard as you might imagine. And, two was the court justified in making this ruling based on the facts and circumstances of a particular case, understanding that one is standard.

So, Overocker and Townsend, there are other cases Tap, Tee, Thomas, Williams, where the Courts of Appeals have reviewed the cases and said, given these factors, the judge did not abuse their discretion in finding probable cause to arrest. Now it’s not the standard of reasonable doubt, it’s not beyond any doubt or all doubt, it’s a probability of a factor. The question is, based on the totality of the circumstances, both good and bad; what you did good and bad on scene, was there probable cause to arrest you for driving while impaired. If there was not probable cause, if they did not have these reasonable, then the evidence thereafter, under what we call The Fruit of the Poisonous Tree, is supposed to be suppressed, including the [inaudible 02:06:14] number and any other evidence that they obtained as Fruit of the Poisonous Tree, we call it the Exclusionary Rule.

If there is probable cause and they get over that damn, sometimes referred to as trickling over, then we get into the next aspect of a case of reasonable doubt, was there enough prima facie evidence, that’s Latin for first facts, to convict you for driving while impaired. Where we may consider the exact same dexterity test, both on the scene and maybe later on in jail, as well as the Intoximeter ec/ir II for a record. As an aside, the hand-held device, the alco-sensor, is different from the Intoximeter ec/ir II. Neither of them are the breathalyzer, which sometimes everyone just refers to every breath test device as breathalyzer.

The alco-sensor in North Carolina is not admissible to provide an alcohol concentration. All it’s meant to do is confirm the existence of alcohol. The officer says I smell alcohol on a person’s breath, I gave them the alco-sensor, and it indicated positive or negative for a reading. That number is not admissible in court for determining probable cause. But if they get you arrested and having probable cause, the number on the ec/ir II, which is the big box down there, with the big black tube. That number is admissible. So you’ll see, and if you look at our North Carolina DWI quick reference guide, there is a 2017 version that’s on Slide Share, you’ll see evidentiary vs. non-evidentiary. I have pictures there of what a breathalyzer is, what an intoxalyzer is versus an intoximeter, versus, an alco-sensor, versus the ignition interlock device, versus, the thing they put on your ankle, not my wrist called the CAM or continuous alcohol monitoring.

This is something that’s extraordinarily complicated, I’m sorry, there’s no good way or easy way to define it other than to be overly simplistic. But we spend a lot of time, as defense lawyers, taking a look at probable cause and explaining to clients what’s admissible and not admissible. It gets that granular, it gets to that level, the grains of the sand. So this website, take a look at it. Start in the satellite view and then we gradually work our way down to the little pieces of sand on the beach for your case. It’s meant to be instructional and informative but not necessarily dispositive, meaning there can be exceptions to the rule. You may have nailed two of the standardized field sobriety test and failed one and that still could be enough probable cause. You may have failed all three, and there isn’t enough probable cause. That’s the precepts behind Overocker and Townsend and Zuniga.

I’m more than willing to go over these things with you. It’s more than just nuance to us. It makes the difference between whether are cases proceed forward or not. We offer help, we offer free consultation, it’s number 704-342-HELP, look forward to hearing from you.


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