North Carolina Probable Cause
The term “probable cause” has been traditionally related to when the police officer first pulled your vehicle over. That has recently changed in North Carolina, with the Supreme Court of North Carolina drawing a distinction between Reasonable Suspicion to stop and Probable Cause to stop. Reasonable Suspicion is a lower standard that requires the careful analysis of the surrounding factual scenario of the DWI stop. One need not necessarily break any law, other than obviously operating a motor vehicle while subject to an impairing substance in violation of N.C.G.S. §20-138.1. It may be possible for you to drive in a “suspicious” manner. One must determine: Why were you stopped in the first place? What did the officer say to you or ask you to do? These are the questions you’ll first review with Bill Powers. For example, did the officer immediately start the DWI investigation by asking you to step out of your vehicle without having a reason to do so?
A police officer may have observed you breaking some type of traffic law (speeding, swerving, etc.) in order to stop you in the first place. He or she cannot stop you because you looked a certain way or because they “felt” like stopping you. That would be called an unparticularized hunch. Again, the basis of the stop must always be reasonable. Gut instincts are not considered legally reasonable. Police officers may be “suspicious” -- frankly, it may be fair to say they are generally always suspicious of criminal activity… that’s their job. Yet, in order to pull you over, that suspicion must be reasonable and based on facts consistent with illegal activity. The suspicion is that “criminal activity is afoot.” That’s a complicated way of saying there is a reasonable likelihood that the law is being broken.
It is also possible for an officer to stop you based on probable cause. Again, this is a very complicated area of the law in North Carolina. You may want to review one of the Continuing Legal Education papers Bill Powers has presented on the subject. In fact, there have been some exciting developments on what may considered reasonable suspicion and probable cause in North Carolina. It is very factually specific and is based upon what happened prior to and during the arrest and the law itself.
If it’s determined that there was reasonable suspicion or probable cause to stop you, how did the officer launch into the DWI investigation? Before asking you to take a chemical test or asking you to perform a field sobriety test, the officer may have observed something such as an open alcohol container in your vehicle or the smell of alcohol coming from either you or your car.
Finally, why were you arrested for DWI? Did the officer give you a field sobriety test and/or a chemical test that indicated you were driving while intoxicated or subject to an impairing substance? These are the types of questions your attorney should find the answers to.
If at any point during the DWI investigation there was a lack of probable cause, this may be grounds for the evidence against you to be deemed inadmissible in court. For example, if the officer did not have probable cause to believe you were DWI, he or she should not have asked for a breath test sample. Similarly, if there was not probable cause to arrest, any evidence seized thereafter may be deemed inadmissible. That concept of the law is called the Exclusionary Rule. It may also be referred to as Fruit of the Poisonous Tree.