Appeals court sides with defense in DWI case

Jan. 01, 2014 @ 04:42 PM

A unanimous N.C. Court of Appeals panel has rejected attempts by Durham and state prosecutors to bolster a drunk-driving charge against a man who had passed a city police officer’s field sobriety tests.

The ruling brushed off the prosecution’s complaints that the visiting trial judge who handled the case, former Wake County Superior Court Judge Abe Jones, left office before signing an order that undermined the charge.

Jones was defeated in Wake County’s 2012 election, but was still handling cases as of December 2012 when Fayetteville resident Randy Bartlett’s case came through the system.

He issued an oral ruling, and Durham Senior Resident Superior Court Judge Orlando Hudson backed him up in February by signing a written order in Jones’ place.

Durham Assistant District Attorney Brenda Rivera and lawyers in state Attorney General Roy Cooper’s office appealed, contending that Hudson didn’t have the authority to sign for the former judge.

But the Court of Appeals, speaking through Judge Chris Dillon, said Hudson’s signature “was unnecessary” because Jones in issuing his oral ruling had done everything the law requires.

That was because the evidence of Bartlett’s performance on the field sobriety tests “was undisputed” and Jones in his oral ruling said “the guy substantially passed the test,” Dillon said.

A written order is usually required to suppress prosecution evidence, but the law makes exceptions when a judge “provides his rationale from the bench” and “there are no material conflicts in the evidence” from a hearing, said Dillon, speaking also for Judges Linda McGee and Doug McCullough.

Bartlett was arrested in March 2011.

Durham Police Department Officer Howard Henry stopped Bartlett on Interstate 40, initially for speeding and the suspicion he was racing another car.

But Henry noticed the odor of alcohol, and Bartlett admitted to having consumed two beers.

The officer checked Bartlett’s eyes and then put him through the series of tests – including walking a line and standing on one leg – police use to check a suspect’s coordination.

Dillon said Bartlett stepped off the line once and passed the standing-on-one-leg test.

Bartlett’s lawyer, Marcus Hill, argued the results of the field sobriety tests didn’t supply Henry probable cause to make an arrest. He asked that all evidence police gathered after the arrest be suppressed.

A blood-alcohol test would normally follow an arrest for driving while impaired. There was no indication in Dillon’s opinion or the case record submitted to the Court of Appeals of whether the test was administered or what its results might have been.

Bartlett’s case initially went through District Court. There, in December 2011, District Judge Pat Evans found him guilty of driving while impaired and gave him a year’s unsupervised probation, a day’s worth of community service and a $100 fine.

The case wound up in front of Jones after Hill and Bartlett appealed Evans’ ruling.

Jones was hearing cases in Durham as part of the state’s system of rotating Superior Court judges to different jurisdictions.

He lost his re-election bid after Wake’s senior judge, Donald Stephens, helped recruit a candidate to run against him.

Dillon and McCullough are Republicans; McGee is a Democrat.