STATE V. KNOLL MOTION TO DISMISS DWI IN RALEIGH, WAKE COUNTY

STATE V. KNOLLMOTION TO DISMISS DRIVING WHILE IMPAIRED (DWI & DUI) IN RALEIGH, WAKE COUNTY

Driving While Impaired (DWI & DUI) is a unique charge because voluntary mental or physical impairment is an element of the crime. Since impairment is evaluated at the time the defendant was driving, evidence gathered near that time is relatively more important. Hours after the driving, evidence of sobriety is relatively less important because people tend to sober up over time. A person's body metabolizes (processes and expels) impairing substances over time. When preparing for trial, Attorney McCoppin always looks for witnesses who observed the defendant near the time the officer observed him drive. If these witnesses can testify that the defendant was sober, coordinated, and articulate, then their testimony can be used to challenge the officer's opinion that the defendant was impaired. In State v. Knoll, 369 S.E.2d 558 (N.C. 1988), the Supreme Court of North Carolina reminded the lower courts that every DWI defendant has the constitutional right to have access to friendly witnesses to observe the defendant's sobriety near the time of his alleged impaired driving. The Knoll Court upheld the dismissal of three defendants' charges of driving while intoxicated because the magistrates who set those defendants' release terms failed to carry out statutory responsibilities regarding pre-trial release. ‚ In each of the three cases, the trial judge made specific findings that the defendant created no disturbance and was cooperative and polite; that there was no clear and convincing evidence that, if he were released, he would create a threat of physical injury to himself or others or damage to property and therefore the defendant should have been released. Id. at 562. Further, ‚ [s]uch deprivation has prejudiced him in the preparation of his defense and . . . [t]he only effective remedy for the violations of the defendant's rights is dismissal of the driving while impaired charge that led to his confinement.‚ Id. at 563-564. If the court imposes unreasonable release conditions that prohibit a defendant from having access to friendly witnesses near the time of the alleged impaired driving, then the court may be required to dismiss the charges. A requirement for obtaining this Knoll dismissal is proving that the defendant made his best effort to obtain access to a friendly witness. A defendant's first opportunity to see a friendly witness is at the time he provides a breath or blood sample. When the chemical analyst notifies the defendant of his right to have this witness, the defendant must ask to have a witness present and call someone to ask them to attend the testing. A defendant's second opportunity to see a friendly witness is after the magistrate judge sets the defendant's release conditions. The magistrate or officer will ask the defendant to wright down the name and telephone number for each friendly witness the defendant would like to see. The defendant should write down several names and telephone numbers. Then, the defendant must try to call those witnesses at every opportunity. Even if the magistrate judge sets unreasonable release conditions, the court will not dismiss a DWI for a Knoll violation if the defendant does not make his best effort to contact a friendly witness.

Asking The Court To Dismiss a DWI Based Upon A Knoll Violation.

In Wake County Court, a defendant charged with Driving While Impaired must file a written motion asking the court to dismiss the charge based upon a Knoll violation. If the defendant does not file this written motion, then the court will not consider this objection. At McCoppin & Associates, we fill a Knoll Motion to Dismiss in every DWI case where the court issued an unreasonable release condition.