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Probable Cause

The legal basis for an DWI stop, arrest, and detainment proceeding, normally the police officer must have either reasonable suspicion or probable cause to believe criminal activity is “afoot.”

The term “probable cause” has been traditionally related to when the police officer first pulled your vehicle over. That has recently changed in North Carolina, with the Supreme Court of North Carolina drawing a distinction between Reasonable Suspicion to stop and Probable Cause to stop.

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)

Reasonable Suspicion is a lower standard that requires the careful analysis of the surrounding factual scenario of the DWI stop.

One need not necessarily break any law, other than obviously operating a motor vehicle while subject to an impairing substance in violation of N.C.G.S. §20-138.1.

It may be possible for you to drive in a “suspicious” manner.

What Lawyers Want to Know:
  • Why were you stopped in the first place?
  • Where did you pull over?
  • Was it a safe place?
  • What were the roadside conditions?
  • How heavy was traffic?
  • How many police officers / squad cars were involved?
  • What did the officer say to you or ask you to do?
  • Did you see whether the Officer(s) wore a Body Camera?
  • Did you see whether the Police Car had a Dash-Camera?
  • Did the officer immediately start the DWI investigation?
  • Were you asked to step out of your vehicle?
  • Did you provide your Driver's License and Registration?
  • Did you perform Dexterity Test?
  • How did you do?
  • Did you blow into a portable breath screening device?
  • What were the results?
  • How much did you tell the Officer you drank?
  • Did they search your vehicle?
  • Did they find anything?
  • Were you handcuffed at ANY time?
  • Were you told you could not leave?
  • Did the Police Officer ever put his or her hands on you?

Frankly, while these are all good questions to determine the legality of a DWI arrest and the associated investigation, many of the same questions and legal standards would also be true for other criminal investigations of both misdemeanor and felony charges in North Carolina.

“Probable Cause and what constitutes a legal arrest requires a careful consideration of the law, the facts, and what law enforcement observed on-scene.”

– Bill Powers

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

Why Does Probable Cause Matter?

When there is a lack of probable cause, as determined by a Judge, that may serve as the basis to suppress evidence and when legally appropriate, may indeed serve as a basis for dismissal of the charges.

You may have a viable DWI defense; but, that does not mean the State, through the Office of the District Attorney, will immediately dismiss the charges against you. Ultimately that decision is normally within the discretion of the presiding Court.

Lawyers experienced handling such matters in Court spend a fair amount of time arguing Probable Cause issues in a Motion to Suppress and/or Motion to Dismiss.

In addition to United States Supreme Court caselaw, the North Carolina Appellate Courts have set forth what is appropriate for police officers to do.

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.)

The Court's role “is not to import to the officer what in our judgment, as legal technicians, might have been a prudent course of action; but rather our role is to determine whether the officer has acted as a man of reasonable caution who, in good faith and based upon practical consideration of everyday life, believed the suspect committed the crime for which he was later charged.”

Is it More Than a Gut Reaction or Instinct?

A police officer may have observed you breaking some type of traffic law (speeding, swerving, etc.) in order to stop you in the first place.

He or she cannot stop you because you looked a certain way or because they “felt” like stopping you.

That would be called an un-particularized hunch.

Again, the basis of the stop must always be reasonable. Gut instincts are not considered legally reasonable.

Police officers may be “suspicious” — frankly, it may be fair to say they are generally always suspicious of criminal activity… that's their job.

“In order to pull you over, that suspicion must be reasonable and based on facts consistent with illegal activity.”

– Bill Powers

The suspicion is that “criminal activity is afoot.” That's a complicated way of saying there is a reasonable likelihood that the law is being broken.

It is also possible for an officer to stop you based on probable cause. Again, this is a very complicated area of the law in North Carolina. You may want to review one of the Continuing Legal Education papers Bill Powers has presented on the subject. In fact, there have been some exciting developments on what may considered reasonable suspicion and probable cause in North Carolina. It is very factually specific and is based upon what happened prior to and during the arrest and the law itself.

If it's determined that there was reasonable suspicion or probable cause to stop you, how did the officer launch into the DWI investigation? Before asking you to take a chemical test or asking you to perform a field sobriety test, the officer may have observed something such as an open alcohol container in your vehicle or the smell of alcohol coming from either you or your car.

Finally, why were you arrested for DWI? Did the officer give you a field sobriety test and/or a chemical test that indicated you were driving while intoxicated or subject to an impairing substance? These are the types of questions your attorney should find the answers to.

If at any point during the DWI investigation there was a lack of probable cause, this may be grounds for the evidence against you to be deemed inadmissible in court. For example, if the officer did not have probable cause to believe you were DWI, he or she should not have asked for a breath test sample. Similarly, if there was not probable cause to arrest, any evidence seized thereafter may be deemed inadmissible. That concept of the law is called the Exclusionary Rule. It may also be referred to as Fruit of the Poisonous Tree.


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Modified Transcript of “Probable Cause Driving While Impaired North Carolina” for the Hearing Impaired

transcript for hearing impairedProbable 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.

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 877-462-3841, look forward to hearing from you.

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