Monday, September 9, 2013

North Carolina Court decides whether a Firefighter can pull someone over for DUI

I recently saw an article discussing a case in North Carolina.  Since I found it interesting, and I had a similar about 7 years ago I thought I would discuss it here on the blog.  It asks two questions whether a firefighter can stop and detain someone for a DUI and whether by doing so are they acting as a state agent which would subject them to 4th amendment restrictions.

Basically in North Carolina a firefighter was on his way to a fire alarm in his fire engine when he passed a motorist who did not have her headlights on, and the window was down in pouring rain.  The firefighter thought this was weird, but he continued on.  When he finally got to the fire alarm another engine was already there so he left and searched out the vehicle he previously saw.  He found the vehicle, observed it weaving in traffic and almost cause a collision.  He then called 911, activated his fire engine lights and pulled the driver over.

At the trial court level the Defendant argued this stop was impermissible, but the Judge disagreed and denied the motion to dismiss.  The Defendant was ultimately convicted of DUI.  The Defendant appealed to the appellate level where they found this issue did raise 4th amendment implications and therefore remanded back to the trial level to determine the issue of whether the firefighter acted as a private citizen or a state actor.  Not surprisingly the trial court followed their earlier decision and found the firefighter was acting as a private citizen and it was a lawful citizens arrest.  A new trial has been ordered.

This is a pretty interesting issue.  As I noted above I had a similar issue about 7 years ago.  I had a client who was driving through downtown Seattle on the 4th of July or New Years.  I can't recall.  There was lots of traffic and a meter maid was directing a four way intersection.  When my client approached the intersection he didn't go through for some reason, the meter maid approached him.  Observed the typical signs of impairment, ordered him to the side of the roadway and took away his keys and called the Seattle Police Department.  The client was eventually arrested for DUI.

I essentially raised the same issue as in the North Carolina case.  I argued first the meter maid did not have the requisite authority as an actor of the Seattle Police Department to conduct a seizure.  They are non-commissioned officers, despite being directed to enforce the traffic code.  Secondly I argued this was an unlawful citizens arrest because it did not constitute a breach of the peace.  At most not driving through the intersection amounted to a traffic violation, not a breach of the peace.

Fortunately for my client we never got the opportunity to argue the case in front of a Judge.  I remember the Prosecutor was brand new.  I was able to convince her she was going to lose and ultimately my client was offered a plea deal he couldn't turn down.  As a DUI Attorney in Seattle I was hoping to litigate it and create some precedent by appealing if we lost, but it wasn't meant to me.   

About the author: Matthew Leyba is a Criminal Defense Lawyer in Seattle.  His practice focuses on representing those accused of DUI and other traffic related offenses. 

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