Criminal Practice — DWI – Judicial Notice – Weather Report – Search & Seizure – Warrantless Blood Draw

The rainfall data in the weather report proffered by defendant ended a few hours before the accident at issue; moreover, eyewitnesses testified about the weather conditions at the time. The trial court did not abuse its discretion when it declined to take judicial notice of the proffered weather report.

We find no error in defendant’s convictions of assault with a deadly weapon inflicting serious injury, felony serious injury by a motor vehicle, and driving while impaired.

N.C. R. Evid. 201(d) states, “A court shall take judicial notice if requested by a party and supplied with the necessary information.” Defendant argues that the trial court thus has no discretion but to take judicial notice when supplied with the information prescribed by Rule 201.

However, Rule 201(d) is predicated upon the two-part test of Rule 201(b) which says a judicially noticed fact is one that cannot be reasonably disputed because it is either 1) general knowledge or 2) “capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Here, the contentious issue—the level of rainfall—fails the first prong of § (b)’s test because, though individuals may know if it is raining, the precise amount of rain is not a generally known fact.

Under the second prong of the test, sources as used in § (b) must be “a document of such indisputable accuracy as [to justify] judicial reliance.” State v. Dancy, 297 N.C. 40, 252 S.E.2d 514 (1979). The amount of rain is generally a fact that is “capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Rule 201(b).

Defendant proffered a weather report from the National Weather Service for the date of the crash, yet the proffered weather report does not state the level of rain that was falling at the time of the crash. The rain level stopped being reported for the day up to three hours prior to the collision. Because the proffered weather report did not contain the necessary data showing the level of rain at the time of the collision, the weather report fails under the second prong of Rule 201(b).

The trial court was not required under Rule 201(d) to take judicial notice but was free to use its discretion pursuant to Rule 201(c). The trial court did not abuse its discretion by not taking judicial notice of the weather report.

Warrantless Blood Draw

Defendant’s vehicle swerved into oncoming traffic, causing a serious accident. Given eyewitness reports of defendant’s erratic driving, the absence of skid marks, defendant’s loopy and lethargic demeanor and slurred speech, and his admission to having taken multiple prescribed medications (oxycodone, valium and morphine), the investigating officer had probable cause to believe defendant had been driving while impaired. Given the exigent circumstances—defendant’s traumatic injuries and deteriorating condition, his need for pain medication, and the fact that he was being flown to another hospital to receive a higher level of care—a warrantless blood draw was permissible.

Assault

Defendant assaulted victim Wasinger by hitting her vehicle with his vehicle, a white Land Rover. According to eyewitness reports and the lack of skid marks to indicate an attempt to stop his vehicle, defendant was driving his vehicle in an erratic and reckless manner. Thus, defendant’s vehicle may be considered a deadly weapon.

As a matter of law, defendant’s culpable negligence was established when defendant proceeded to operate a vehicle while under the influence of impairing substances. Such negligence was further shown by reports of defendant’s driving from two eyewitnesses. Wasinger suffered serious injury, requiring weeks in the hospital and two months in a wheelchair, and resulting in extremely restricted movement of her hand and legs. Due to her injuries, Wasinger lost her job and is now enrolled in disability with Social Security. The elements of assault with a deadly weapon inflicting serious injury were satisfied.

Because substantial evidence exists to illustrate defendant caused serious injury to Wasinger due to his driving while impaired, the elements of felony serious injury by motor vehicle were also met.

The trial court did not err in denying defendant’s motion to dismiss.

No error.

State v. Bucklew (Lawyers Weekly No. 011-244-21, 26 pp.) (April Wood, J.) Appealed from Martin County Superior Court (Leonard Wiggins, J.) Kathryne Hathcock for the state; Leslie Robinson for defendant. 2021-NCCOA-659