Month: June 2014
In North Carolina v. Murchison (232 PA 13, filed June 12, 2014), the North Carolina Supreme Court ruled that in a Violation of Probation hearing, a defendant can be violated based on hearsay.
Hearsay means that the complaining witness does not need to be at the hearing, a police officer can tell the judge what the witness said. Also documents can be used even if no witness is present to lay a foundation.
What does this case mean to you? Defendants accept probationary sentences daily with the feeling of relief: you ducked the bullet and are not going to jail. In sentencing hearings, the judge reads the litany of obligations, aka conditions of probation: fines, reporting to a probation officer, community service, drug assessments etc. I notice the defendants’ eyes glaze over at this time and they are not able to absorb what the judge is saying. Part of the reason that the defendants do not know what the judge is saying is that the list is long, the terminology unfamiliar and the rapidity of the judge’s speech. The judge lists probation conditions constantly and mows through the list with warp speed. But regardless, most of the time, the defendants are not even paying attention. They are just thinking that they were lucky not to be going to jail.
The defendants fail to take seriously the number of days of jail suspended. Why is this a problem? It is a problem because those days or months can be activated SO quickly and easily but defendants do not think it will happen to them.
Well, with the new Supreme Court case, activation of the sentence can happen quicker and easier than ever. In Murchison, the police officer testified that the defendant’s mother said that the defendant had broken into her home, held her and his girlfriend in a closet and possessed knives. She also opined that the defendant would kill someone if left on probation. The other hearsay evidence was an Administrative Office of the Court’s printout, showing that defendant was indicted for First Degree Burglary.
“The trial court found that defendant unlawfully, willfully, and without legal justification had violated conditions of his probation by committing one or more subsequent offenses, as alleged in the violation reports. Accordingly, the trial court revoked defendant’s probation and activated his suspended sentences.” All the prosecutor must show to have the suspended jail/prison sentence activate is that the evidence is “such as to reasonably satisfy the judge in the exercise of his sound discretion that the defendant has willfully violated a valid condition of probation.” Translation: not much evidence at all. With Murchison, North Carolina has streamlined the procedure to whisk defendants off to prison with the most minimal effort. The lesson to defendants is to know that you are treading on eggshells the moment you are granted probation. Know your obligations, work with your probation officer and know that very, very little evidence is required to send you to prison.
North Carolina General Statute 20-138.1, Impaired Driving, states that a person is guilty of impaired driving if he drives a vehicle on any highway, street or any public vehicular area (1) while under the influence of an impairing substance or (3) with any amount of a Schedule I controlled substance as listed in GS 90-89 or its metabolites in his blood or urine.
A metabolite is the chemical compound that is produced during the process of metabolism, that is, the breaking down of the drug by the body or the physical process of the body ridding itself of the drug.
A very interesting case was recently issued from Arizona. In State ex. Rel Montgomery v. Harris (Ariz. 2014), the Arizona Supreme Court ruled that their state’s law which prohibited driving with any illegal drugs or the metabolite must be interpreted to apply only to metabolites which are capable of causing impairment. Also, as the court in Harris pointed out, certain legal drugs share the same metabolite as illegal substances. The State must be able to show that the metabolite is actually metabolized from an illegal substance.
The Arizona case dealt with a DWI based on marijuana. The law said that if a person had illegal drugs or their metabolites, the person was deemed impaired. Unlike alcohol with the 0.08 BAC, there is no quantitative amount of a controlled substance or its metabolite to constitute impairment.
In the case of marijuana, there are two metabolites: Hydroxy-THC, the primary metabolite and Carboxy-THC, the secondary and non-impairing metabolite which can remain in the body for 28-30 days. The court ruled that the metabolite amount had to be shown to be of a sufficient quantity and character to cause actual impairment. The presence of a non-impairing metabolite reflecting prior usage was not sufficient to sustain a conviction.
Consequently, based upon wording of the NCGS, any DWI based upon a metabolite must be based upon a sufficient quantity to cause actual impairment. NCGS 20-138.1 states that any Schedule I metabolite qualifies as impairment per se. Based upon the Harris case, it can be argued that the statute must be interpreted to only apply to metabolites capable of causing impairment. Additionally, we must understand the nature of the specific drug’s metabolites to evaluate whether the primary or secondary metabolite is capable of causing impairment. Finally, the metabolite must be shown to have come from the illegal drug and not from a legal substance.
If your case is based upon a metabolite of a controlled substance, a consultation with a forensic chemist is critical to any defense.