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Johnston DA, law enforcement blame courts for spike in DWI dismissals

April 27, 2019 GMT

A county with a history of driving while impaired troubles in the courtroom is seeing another spike in dismissed cases, a WRAL News investigation found.

Over the past 15 months, 35 percent of Johnston County’s DWI cases were tossed out before they ever got to trial. Prosecutors and law enforcement officers say judicial rulings, such as a finding of no probable cause for an arrest or granting defense motions to suppress evidence, are letting an alarming number of suspected drunken drivers off the hook.

When WRAL Investigates reached out to Johnston County District Attorney Susan Doyle about the dismissal surge, she gathered law enforcement from across the region to discuss their frustrations.

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“This is all about public safety,” Doyle said. “I think our frustration is evident by the simple fact that every law enforcement agency in Johnston County is present here.”

Johnston County Sheriff Steve Bizzell got right to the heart of the matter: “People are driving drunk in Johnston County and are not being held accountable.”

Bizzell says the odds are stacked against prosecutors and police when they go to court.

“They’re frustrated. They don’t feel like they’re getting a fair shake in the courtroom. That’s why we gathered here to tell you we are united,” he said.

In 2008, a WRAL News investigation found nearly half of the DWI cases in Johnston County were getting tossed out in court. The State Bureau of Investigation launched a probe that eventually led to a former prosecutor and several defense attorneys pleading guilty in a scheme to dismiss cases.

A grant-funded DWI court followed with out-of-county judges. The dismissal trend reversed, and the county’s DWI conviction rate reached as high as 90 percent at one point.

But when the funding dried up, recent court records show, dismissals started creeping back up again.

“Unfortunately, the outcomes of these cases in our district courts do not reflect the excellent job that our law enforcement officers and our prosecutors are doing to keep these dangerous offenders off of our roadways,” Doyle said.

Bizzell said it’s no coincidence the dismissal numbers started climbing after the special DWI court went away.

“We had visiting judges that were presiding over these courts. We don’t have that anymore on a regular basis like we did,” he said. “So, if you look at the numbers, it had a big impact.”

“Dismissals are taken by the DA, not the by judges. I cannot explain that,” said Chief District Court Judge Jackie Lee of the 9th Judicial District, which includes Johnston County.

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When WRAL Investigates asked Lee about the rising dismissal rates, she said only the law dictates decisions made by judges.

“We can’t show favoritism to anyone, not even to the state,” she said. “Our focus is upon the law and the facts, and it doesn’t make any difference who is on which side or the other.”

Prominent Johnston County defense attorney Jack O’Hale, who successfully defended several cases that were dismissed, fired back at criticism from the DA and law enforcement.

“I think this is an assault on the judiciary,” said O’Hale, who handles more local DWI cases than any other local attorney.

“When I show up, I’m always prepared. I know more about the cases than the state does,” he said. “My job is to poke holes in the state’s case, but a lot of times, they don’t know what they have. I do. ... It’s not my job to prosecute the state’s cases.”

O’Hale disagrees with the notion that too much familiarity between local judges and attorneys plays a role in judicial decisions to suppress evidence.

“Judges get blamed for a lot, but when they’re following the law and doing what they’re supposed to do and be fair ... there’s more to it than meets the eye,” he said. “You might be technically guilty, but can you prove it? You’re not guilty until you prove it.”

Lee produced DWI dismissal rates for Johnston County from 2007 to 2017 that showed the county was generally in line with the statewide dismissal rate during those years.

“I don’t see the numbers that would suggest anything’s going on, that would cause this outcry that evidently is occurring. I just don’t see it,” she said.

However, WRAL Investigates found the dismissal rate jumped in the 2017-18 data. Records provided by Doyle show dismissals have risen even more since January of last year.

WRAL Investigates pored through various cases where judges allowed defense motions to suppress evidence. In some, drivers registered two or even three times the 0.08 blood-alcohol content at which a driver is considered impaired under North Carolina law, yet cases were dropped:

“Based on my experience, it’s my opinion that the law was applied much differently,” says Ernest Freeman, a special DWI prosecutor for the North Carolina Conference of District Attorneys.

Freeman tries cases in an 18-county area and spent a week in Johnston County earlier this year. He says he was surprised and disturbed by some of the judicial rulings he saw.

“It’s a little unusual to lose a case where someone’s having difficulty communicating with an officer, someone’s having difficulty standing, moving about freely after a crash,” he said.

Freeman said he felt rulings that forced prosecutors to dismiss cases were favorable to the defense.

“It seems like the burden that officers and prosecutors are held to, it’s a little bit harder to get there,” he said.

When asked whether he thought drunken drivers were going free, he said, “If there’s a good-faith basis for the stop, if there’s a good arrest and you have a [breathalyzer] blow that’s over 0.08, that’s sufficient for a conviction, and I think the answer would be yes.”

Despite their frustrations, Johnston County law enforcement vows to keep holding up its end of the bargain.

“We will pursue these cases through the courts to seek justice. Enough is enough,” Bizzell said.

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