The North Carolina Court of Appeals, in an unpublished opinion, made some indication that it would not accept the Horizontal Gaze Nystagmus Test as a standalone indication of impairment that gives probable cause to arrest. The case, State v. Sewell, began when Ms. Sewell and her passenger were stopped at a DWI checkpoint in Durham. According to the trooper who arrested her, Ms. Sewell had bloodshot, watery eyes. However, she retrieved her license and registration without any problem, and her speech was not slurred. When the officer had her perform the Field Sobriety Tests, she displayed 6 out of 6 clues on the HGN, but no clues on the Walk and Turn and the One Leg Stand tests. Her roadside breath tests were positive for alcohol. She admitted drinking one glass of wine, but only after denying that she had anything to drink.
Ms. Sewell’s lawyers plead guilty to DWI, and then appealed for a new trial in Superior Court. Her lawyers made a pre-trial motion that the evidence against her be suppressed, because the officer did not have probable cause to arrest her. The trial court agreed, and suppressed the evidence and dismissed the case. The State chose to appeal the case to the North Carolina Court of Appeals. The Court of Appeals heard the arguments of both the state and the defendant. The appellate court issued a so-called “unpublished” decision that stated that the trial court was correct in granting the motion to suppress, but was wrong to dismiss the case. The North Carolina Court of Appeals looked at all of the evidence, and weighed it to determine whether the officer had probable cause to make the arrest. The evidence that favored the State was the positive reading of the Portable Breath Tests, the six out of six clues on the HGN, the smell of alcohol, and the red, watery eyes of the defendant. In addition, the defendant originally denied drinking, and then admitted to having one glass of wine. The defendant also had several facts that weighed in her favor. She exhibited no clues on the Walk and Turn and One Leg Stand tests. She was not slurring her speech, and had no trouble producing her license and registration. One additional factor that the court considered is that the officer testified that the odor of alcoholic beverage was coming from the car, which contained the defendant and a passenger, and was not coming directly from the defendant.
This is one example of when a legal argument was strong enough to overcome the prosecution of a person for DWI. The police still have to have probable cause before they make an arrest and have a person submit to chemical analysis.
