North Carolina Lawyers Weekly
A couple of tweaks to the state’s DWI laws take effect next month that could both help and hurt defendants.
The defense bar is applauding one of the amendments, which requires prosecutors to give defendants lab reports on blood or urine tests no more than 15 business days after the state receives the results.
“That’s great for defense attorneys,” said Richard Kronk of Baucom, Claytor, Benton, Morgan & Wood in Charlotte.
Under the previous version of the statute, prosecutors could hold the report until 15 days before trial, according to Shea Denning, a professor at the UNC School of Government who specializes in the criminal aspects of motor vehicle law.
While Kronk welcomed the change, he said the legislation does nothing to address the long wait times for blood test results from the state crime lab in Raleigh. He noted that he is still waiting for the test results in a DWI case that began in May 2015. His client blew a 0.0 on the breath-alcohol test before police officers drew his blood to be tested for drugs.
“The biggest problem is getting these lab reports back. It still might take a year to get the results from the lab,” he added. “If they want to cure the backlog they need more lab workers.”
Kronk also worried that defendants would fail to share the blood test reports with their attorneys, because the legislation does not appear to require prosecutors to give the reports to a defendant’s counsel, only the defendant.
“I see problems if there is not a specific duty to furnish to the defense attorney,” Kronk stated in the comment section of a blog post that Denning wrote about the amendments.
Other commenters were more concerned about the second change, which requires defendants to demand that the lab analyst who tested their blood appear at their trial within “five business days of the first proceeding for which the state provided notice.”
Defendants who fail to make the demand in time automatically waive their right to confront the analyst if their trial is continued.
“It’s ridiculous that the [General] Assembly thinks they can narrow everyone’s Confrontation Clause rights by imposing stringent 5 day requirements on people who may not have had the ability to consult an attorney,” wrote one commenter. “They get away with it because everyone knows that DWIs get treated differently.”
Kronk echoed those concerns, adding in an interview: “What about the scenario where the defendant is not represented at first and the first hearing is held before the defendant gets an attorney? How’s that fair to a defendant who didn’t get an attorney and didn’t know the rules?”
But Denning believed that the legislators behind the change were trying to address court-scheduling headaches, not chip away at the rights of DWI defendants.
“Some of the comments make it sound as though the demand has to be made before the defendant ever gets an attorney. That doesn’t seem like that’s the way it would play out in a normal case,” she said, noting that judges ask defendants if they have or need an attorney during their first court hearing.
“I can see how someone might have a different take on this, but these changes aren’t huge,” she said. She added that the five-day rule makes “things more predictable for the state.”
For instance, she said, when a defendant waits until after his initial trial date is continued to demand the appearance of an analyst it can throw a wrench in the process. The prosecution has to scramble to ensure that a witness who wasn’t expecting to be called to court will be available at the new trial date.
Kronk, however, had little sympathy for the state.
“They’re making it flow smoother for the prosecution, not the defense,” he said. “The state puts great pressure on judges and DAs to get these cases calendared and pushed through. Is that in the best interest of justice? You want to short-circuit constitutional rights to clear through the docket? That’s concerning.”
He added, “They’re saying if you miss it once too bad for you. But if the state’s continuing the case why should the defendant lose his right to go back and get another bite at the apple?”
The amendments affect DWI trials that begin on or after Oct. 1.
Follow Phillip Bantz on Twitter @NCLWBantz
