One judge issued a verbal order from the bench. But another judge signed the written order. Is the order valid?
That’s the question that will be posed before the N.C. Supreme Court tomorrow in a DWI case stemming from Durham. Among the other questions: how many field tests does a driver have to pass in order to prove he’s sober?
In early 2011, Durham Police Officer Howard Henry saw two vehicles on I-40 that appeared to be racing. Howard pulled one of the cars over. The driver was Randy Bartlett. His wife was riding shotgun. There was a strong odor of alcohol inside the car.
Officer Henry asked Bartlett if he’d been drinking. Bartlett said he’d had two beers. Henry performed various field tests on Bartlett. Some he passed; others he didn't. Bartlett could “turn and walk” sufficiently, for example, and could balance on one leg. However, two preliminary breath tests indicated that Bartlett had some alcohol in his system. Moreover, four out of six clues during an eye-gaze test suggested impairment, and two out of eight clues on a walking test suggested the same. (Asked to walk heel-toe along an imaginary line, for example, Bartlett stepped off the line once.)
Bartlett was arrested for driving while impaired. He filed a motion to suppress the evidence, arguing that the officer lacked probable cause to make an arrest.
On Dec. 18, 2012, the case went before Judge Abe Jones. During the hearing, a sobriety-testing expert testified that he would not have been comfortable making an arrest based on the evidence.
Jones granted Bartlett’s motion to suppress. "I may be wrong, but I think the guy substantially passed the test," said Judge Jones. The judge then instructed Bartlett’s lawyer to draw up a draft of an order. Thirteen days later, on Dec. 31, Jones stepped down from the bench.
The parties next appeared on Feb. 18, 2013, before Judge Orlando Hudson Jr. Hudson agreed to sign the order that had been prepared for Jones “on his behalf,” Hudson said.
The N.C. Attorney General’s Office took the case to the Court of Appeals, arguing that Hudson lacked authority to sign an order made by Jones. The Court of Appeals rejected the state's argument, concluding that Jones "effectively entered" his order from the bench. The court ruled that Jones provided his rationale verbally before the parties, and there were no material conflicts in the evidence — and therefore, the findings of fact were “implied” by Jones during the original hearing.
But the state successfully lobbied the Supreme Court to take up the case. The state now argues that there was
a conflict in the evidence, namely that Jones failed to establish the sobriety expert’s credibility, and that the expert’s testimony differed from that of Officer Henry.
Jones' rumination when he said, "I think the guy substantially passed the test," shows he was merely thinking out loud, the state argues.