State Failed to Prove Elements of the Crime
On September 30, 2012 our client was charged with
exceeding a safe speed and
driving while impaired. The allegations were that she called the police to report an accident
she was in where the car flipped on its side. When the officer arrived
on the scene, one of the neighbors had come out and the client was outside
The officer had her do a horizontal gaze nystagmus (HGN), a walk and turn
test, and a one leg stand. He then performed an Alcosensor. But at trial,
the officer admitted that he didn’t follow the proper health regulations,
and the “positive” results were not allowed into evidence.
After performing this test he arrested her for driving while impaired.
On the scene, she advised that she was driving the car and reported the
wreck as she was required to do under N.C.G.S. 20-166. While she was at
the dentention center downtown she exercised her 5th amendment rights to remain silent.
At trial, the State failed to present evidence with regard to what time
the accident occurred and failed to prove that her impairment of a .09
was at a relevant time after driving. One of the fundamental elements
of any per se DWI is to prove that the chemical test was performed at
a “relevant time.” While the State may have clear evidence
of when the test occurred (it is printed on the breath slip), if the State
fails to prove when the driving occurred, they have not proven the test
was performed “at a relevant time after driving.”
Thus, at the close of the case the court found her not guilty based upon
the State’s failure to meet one of the elements of the crime. In
this case, we had planned on contesting a different issue during trial,
but when the State missed an element, we won on an issue we could not
have predicted. As with many cases, if the State had all of its witnesses
present and had put its case forward correctly, the State may have been
able to prove her guilty. However, as trials move quickly, it is often
the case that the State fails to meet an element when the matter actually
goes to trial. We are very proud of our firm for litigating a case that
many firms would have advised her to plead guilty.