- Two DWI defendants in North Carolina have asked the U.S. Supreme Court to take their cases. They claim district attorneys violated their rights to a speedy trial.
- The petition to the nation's highest court argues that prosecutors' use of a process called "dismissal with leave" in DWI cases violates a 1967 precedent.
The U.S. Supreme Court will decide in the weeks ahead whether to take a case challenging N.C. prosecutors’ approach to impaired-driving cases. Critics contend prosecutors are violating defendants’ rights to a “speedy trial.”
Plaintiffs Rogelio Albino Diaz-Tomas and Edgardo Gandarilla Nunez filed a petition March 14 seeking a review from the nation’s highest court. Lawyers from the N.C. Department of Justice informed the court on April 4 that the state would not file a response to the plaintiffs’ request.
N.C. courts have rejected Diaz-Tomas’ and Nunez’s arguments, including unanimous rulings against them last November from the state Supreme Court.
Lawyers for Diaz-Tomas and Nunez accuse N.C. district attorneys of “blatantly flouting” U.S. Supreme Court precedent by reviving a practice declared unconstitutional in 1967.
“In Klopfer v. North Carolina, … the Court held unconstitutional a practice unique to
North Carolina, under which the state indefinitely postponed certain prosecutions over the objection of the accused,” according to the plaintiffs’ petition. “The Court determined that this practice violated the Speedy Trial Clause. Justice Harlan, concurring in the result, took the view that this practice violated the Due Process Clause.”
“District attorneys in North Carolina have now revived this practice,” the petition continued. “In DWI cases, where the defendant fails to appear for a scheduled court date, the state indefinitely postpones the defendant’s prosecution. The charge remains pending, but the case is removed from the court’s docket. The district attorneys refuse to reinstate these prosecutions unless defendants agree to plead guilty and to waive their right to appeal.”
“Defendants are left in perpetual limbo, with no way to contest the charges against them,” plaintiffs’ lawyers argued. “Their only exit from this predicament is to relinquish their right to a trial.”
The plaintiffs specifically challenge district attorneys’ approach to N.C. General Statute § 15A-932. It explains how prosecutors can enter a “dismissal with leave” when a defendant fails to appear in court.
“Despite the name, a ‘dismissal with leave’ does not actually dismiss the case,” according to the petition. “Rather, dismissal with leave merely ‘results in removal of the case from the docket of the court.’ … The defendant is still under a criminal charge, but nothing can happen in court until the prosecutor reinstitutes proceedings.”
The prosecutor maintains “complete control” over the process, according to the petition. “Prosecutors in North Carolina are now taking advantage of this dismissal with leave procedure to coerce DWI defendants into pleading guilty. When a DWI defendant misses a court date, the prosecutors enter a dismissal with leave and refuse to reinstate proceedings unless the defendant pleads guilty and waives his right to an appeal.”
“A DWI defendant who misses a court date is thus unable to exercise his right to trial,” the plaintiffs’ lawyers argued. “He has only two choices. One option is to plead guilty and waive his right to appeal. The other is to remain in limbo, un- able to drive, with a criminal charge hanging over his head, for the indefinite future.”
“This practice appears to be unique to North Carolina, just as it was in Klopfer. (It nevertheless affects an enormous number of people. …) Every other state, as far as we are aware, manages to address defendants’ non-appearance without stripping defendants of their constitutional rights.”
More than 146,000 cases in N.C. Superior Court led to dismissal with leave in the year ending June 30, 2022, according to the petition. “Most of these cases were traffic misdemeanors, including DWI offenses.”
North Carolina’s highest court rejected the argument that Diaz-Tomas and Nunez could compel district attorneys to reinstate the cases against them.
“We hold that a criminal defendant does not possess the right to compel the district attorney, who has the authority to place the defendant’s unresolved criminal charges in a dismissed-with-leave status, to reinstate the dismissed charges and to place the charges on a trial court’s criminal case calendar for resolution,” wrote Justice Michael Morgan for a unanimous court. “We also hold that a trial court lacks the authority to order that criminal charges which have been dismissed with leave by the duly empowered district attorney be reinstated and placed on a trial court’s criminal case calendar against the will of the district attorney.”
Morgan and his colleagues distinguished the current DWI cases from the Klopfer precedent.
“Lying beneath the North Carolina Supreme Court’s decision, no doubt, is the legitimate concern that defendants should be punished for willfully missing court dates,” plaintiffs’ lawyers argued. “But the state has other ways to do that. Missing a court date is a separate offense under North Carolina law. Defendants can be charged under this statute if they miss a court date without a good reason. Defendants can also be charged with criminal contempt for willfully missing court dates.”
“Measures like these must be working well in the other 49 states, which have not found it necessary to keep defendants under the perpetual cloud of a criminal charge. North
Carolina has no reason to deprive defendants of their constitutional right to a speedy trial.”
The U.S. Supreme Court has not yet scheduled a date to review the Diaz-Tomas and Nunez petition.