North Carolina DWI

North Carolina Traffic Law – Speeding Tickets Points & Insurance Consequences

September 3, 2011 Leave a comment

THE LAWS IN THE STATE OF NORTH CAROLINA MAY HAVE CHANGED SINCE THE ORIGINAL PUBLISHING OF CLE MATERIALS. COUNSEL WOULD BE WISE TO REVIEW THE NOTED STATUTES TO CONFIRM MODIFICATIONS. THE CONTENTS HEREIN ARE TAKEN IN PART FROM ‘Adventures in Fantasyland, Traffic Law Primer” by Bill Powers. The original may be reviewed: http://www.powmac.com/CM/DWIPublications/Traffic%20Primmer%20December%20FINAL%20DRAFT%202004.pdf

Bill Powers has published and awaits printing of a “Traffic Law Quick Reference Guide 2012.”

I. Basics of Traffic Law in NC

North Carolina has two distinct point systems when dealing with traffic violations. The first is that which is enforced by the North Carolina Division of Motor Vehicles (hereafter “DMV”). Certain traffic citations will, if convicted, add points to a motorist’s driver’s license. An accumulation of these points can lead to an increase in insurance premiums and even eventual suspension of a motorist’s driver’s license. The second point system that runs in conjunction with the DMV point system is the insurance point system created by the Safe Driver Incentive Plan (SDIP). An accumulation of these insurance points will have a direct effect on insurance premiums up to a 400 % increase in rates.1

1 SDIP Rules (See Charts Infra)

2II. Traffic offenses in general

Under N.C.G.S.A. § 58-20-16 a driver in North Carolina will receive Division of Motor Vehicles points for various moving and non-moving violations. These violations can accumulate anywhere from 2-5 points per conviction and lead to the suspension and revocation of a driver’s license.2 Certain offenses are considered waivable offenses in which the driver issued the citation may forgo an appearance in court by executing a written waiver of appearance or plead guilty to the said charge. NCGS 7A-148. If the court has not been furnished with a written waiver of appearance and the driver has not entered a guilty plea by the notified court date, the driver’s license will be suspended until action by the driver is taken. Other more serious offenses are not waivable under the statute and require a mandatory court appearance. (See More: NCGS 7A-148) If the driver fails to appear in court on the date specified in the citation, an order for arrest will be issued and the driver will be arrested.

a. Revoking and Suspending a license

The DMV has the authority to temporarily suspend and permanently revoke a motorist’s driving privilege.3 Under N.C.G.S.A. § 58-20-16 a license can be suspended or even revoked without any formal preliminary hearing. Upon making the determination that a license will be suspended, the DMV must notify the licensee in writing. If applicable a hearing may be requested by the licensee typically within 10 days of the suspension notice. One suspension in which DMV will offer no preliminary hearing is where a driver receives a conviction for traveling more than 15 mph over the posted speed limit where the posted speed limit is 55mph or more; or traveling 20 mph over the speed limit when the speed limit is at least 35mph; or traveling over 80 mph no matter how much in

2 Under 20-4.01(36), 47 the words suspension and revocation have the same meaning. Formerly the different uses of the words were to differentiate between revocations that were mandatory by the DMV and suspensions that were within the DMV’s discretion. 3 The words suspend and revoke for practical purposes are interchangeable. For example: A person who is pulled over for a traffic violation while their license is suspended, would be charged with Driving with a Revoked License.

excess of the speed limit the driver is traveling. Furthermore, a license may be automatically suspended by DMV for various reasons.4

1. Theaccumulationof12DMVpointswithina3-yearperiod.Or8pointsin the 3 years that immediately follow a period of license suspension due to a 12 point accumulation. When a license is suspended for accumulating too many points, the initial suspension may not be for more than 60 days. The second suspension shall not exceed 6 months and the third should be no more than 1 year.

2. The driver has within a period of 12 months received 2 or more convictions for speeding in excess of 55mph and not more than 80 mph.

3. The driver has within a period of 12 months received one or more charges of reckless driving AND 1 or more convictions for speeding in excess of 55mph and not more than 80 mph.

4. The Driver has been convicted of operating a motor vehicle at a speed greater than 75mph where the maximum speed is less than 70 mph.

5. The driver has been convicted of operating a motor vehicle at a speed greater than 80mph where the maximum speed is 70 mph.

Driving with a revoked license

Driving with a revoked license (hereafter DWLR) is considered a Class 1 misdemeanor in the State of North Carolina, thus making the driver subject to active jail time. Appearance in court is mandatory for this offense even if the driver is pleading guilty. Furthermore, if a person is convicted of a moving violation while his license is suspended, the revocation will be extended for one additional year.5 For example if a driver is charged with driving on a revoked license (DWLR) and a citation for speeding arising out of the same incident, even if the DWLR is voluntarily dismissed by the District Attorney, a conviction for speeding will still revoke that Driver’s license. Although the actual charge was dismissed, the license is still in revoked status and a

4 DWI related suspensions are not included. Please see N.C.G.S.A. § 58-20-16 for DWI and certain other traffic offenses that allow the DMV to revoke a license. 5 Two additional years for a second conviction and permanently for third conviction.

conviction of any moving violation during a period of suspension will further revoke the license.6 If a driver is convicted of a moving violation while driving in a state of suspension, their driver’s license will be suspended for an additional 12 months. If a driver is convicted of 3 moving violations while in a period of suspension, their license will be permanently revoked.7

III. Traffic offenses and Insurance points

The “primary purpose of law requiring insurance is to furnish at least partial compensation to innocent victims who have suffered injury and damage as a result of negligent operation of a motor vehicle upon a public highway.” Grant v. State Farm Mut. Auto. Ins. Co., 159 S.E.2d 368 (1968). Insurance companies must become a member of The North Carolina Rate Bureau (hereafter “Bureau”). The Bureau was created in part to propose and promote insurance rates for private passenger vehicles. N.C.G.S.A. § 58-36-1(3). These rates are then subject to review by the Commissioner of Insurance.

The Bureau must file what is known as the “Safe Driver Incentive Plan” (hereafter SDIP). This plan distinguishes among drivers who have safe driving records and drivers who have a record of at fault accidents and convictions for moving violations. Drivers who are convicted of certain moving violations and are found at fault in certain accidents will be assessed SDIP points and thereafter notice additional increases in their premiums. (SDIP Rule 5A)

a. What is a clean risk for insurance purposes?

Under the SDIP certain drivers that have safe driving records are considered “clean risks” by insurance companies and are entitled to greater discounts on their premiums. To be labeled as a clean risk, the owner, principle operator and each licensed operator in the owner’s household must have at least 2 years of driving experience as a licensed

6 Furthermore, even if the court allows a Prayer for Judgment Continued for the moving violation, the Driver’s license will be further suspended. A prayer for judgment is a conviction with no sentence imposed. 7 Their license cannot be reinstated without a formal DMV hearing.

driver and have had no SDIP points assessed against them during the 3 years immediately preceding the date of the application. N.C.G.S.A. § 58-37-35.

b. Moving violations and Insurance Points

The SDIP requires insurers to assess driving record points for various automobile related convictions. SDIP Rule 5B1a(4)(b). A conviction is defined as a plea of guilty, no contest or an actual adjudication of guilt by a judge or jury (even if no sentence is imposed). SDIP Rule 5B. This means that for the purpose of accumulating insurance points, a PJC counts as a conviction. However, the SDIP allows one PJC per household that will have no effect on insurance points once every three years.8 SDIP points generally range from 1 point for a violation such as speeding 10mph or less in excess of a speed limit under 55mph, to 12 points for a DWI.9

Chart for traffic violations and SDIP Points

8 The effect of the preferred rate will be determined by the individual insurance co. 9 See detailed chart on page 6 & 7 for details and exemptions.

DWI Prearranged highway racing Hit and Run Resulting in Bodily Injury or Death

12 SDIP points

400 percent rate increase

Highway racing Speeding to Elude Arrest

10 SDIP points

300 percent rate increase

DWLR (Driving with a revoked license)

8 SDIP points

220 percent rate increase

Reckless Driving Hit and Run (Property Damage Only) Passing a Stopped School Bus Speeding in excess of 75mph (when the speed limit is less than 70mph) Speeding in excess of 80mph (when the speed limit is more than 70mph) Driving After Consuming Under 21

4 SDIP points

180 percent rate increase

Illegal Passing Following too Closely Driving on the wrong side of the road Speeding more than 10 mph over the speed limit (provided that the driver’s total speed is over 55mph but less than 76mph) Speeding 10mph or less than the speed limit (where the speed limit greater than 55mph)

2 SDIP points

45 percent rate increase

Speeding 10 mph or less (where the speed limit is less than 55 mph) All other moving violations

1 SDIP points

25 percent rate increase

It should be noted that the above chart is superceded by the N.C.G.S.A. which states that any sub classification plan, such as the SDIP, shall provide that with respect to a conviction for speeding 10 mph or less over the posted speed limit there shall be no assessment of points unless there is a driving record consisting of a conviction(s) for a moving violation, except for a prayer for judgment continued, during the three years precedingthedateofapplication.10 N.C.G.S.§58-36-75(f).

More specifically, the SDIP must also provide that, with respect to a prayer for judgment continued, there should be no assessment of points unless the vehicle owner, principle operator, or any licensed operator in the owner’s household has a driving record consisting of a prayer for judgment continued for a moving violation during the drivers “experience period.” As there are to be no insurance points issued for one PJC per household every three years a second PJC within the household may cause the assessment of SDIP points.

c. Accidents and Insurance Points

The SDIP can issue points for both major and minor at-fault accidents. A major accident is one that results in death, bodily injury or property damage of 3,000 dollars or more. A minor accident is one that results in property damage of less than 1,800 dollars. An at- fault accident where the property damage is more than 1,800 and less than 3,000 is classified as an intermediate accident.

Chart for accidents occurring on or after Jan. 1 200411 and SDIP.

10 The three years preceding the date of application or the preparation of the renewal is called the “Experience Period.” 11 See SDIP Rules for details on at-fault accidents occurring before January 1,2004.

A major at-fault accident: results in death or bodily injury (where the bodily injury is more than 1,800) or property damage of 3,000 or more.

3 SDIP points

65 percent rate increase

An intermediate at-fault accident results in property damage in excess of 1,800 but less than 3,000.

2 SDIP points

45 percent rate increase

A minor at-fault accident resulting in bodily injury of 1,800 or less and property damage of 1,800 dollars or less.

1 SDIP point

25 percent rate increase

It should once again be noted that notwithstanding the SDIP chart above, the N.C.G.S.A. states that there should be no assessment of points against a driver where the driver is involved in a minor accident in which there has been no conviction against him for a moving violation associated with that accident and neither the driver nor any other member of the drivers household has a driving record consisting of a moving violation conviction or another at-fault accident during the “experience period.” N.C.G.S. § 58-36-75(a)(1)

d. Determining fault in an at-fault accident

The SDIP requires insurers assess points for accidents where the driver was at-fault. SDIP Rule 5B1b. The rule further defines “at-fault” as synonymous with negligence. And states that no points will be issued where the driver is free of negligence. SDIP Rule 5B, Note 3. Furthermore, the insurers under the SDIP and Prentiss v Allstate Insurance Company are allowed to determine which party is at fault even where there has been no fault issued by the court system. Prentiss v Allstate Insurance Company 144 N.C. App.404, 408.

For example in Prentiss the driver insured by Allstate Insurance Company was involved in a two car accident and cited for “failing to see before turning from a direct line that such movement could be made in safety.” Although this citation was later dismissed in District court, Allstate Insurance Company found that the driver was at-fault and issued SDIP points thereby removing his safe-driver discount and increasing his premiums. The court in Prentiss concluded that SDIP not just allows but rather requires insurance companies to make determinations of fault in accidents. The court specified that an at- fault accident must mean one that is not adjudicated in court, as there is a wholly

separate SDIP provision that covers convictions. Prentiss v Allstate Insurance Company. Put simply, even if found not guilty and/or not “responsible” of a traffic violation, an insurance carrier (based on the damages pay out), may still assess insurance points.

WHY: The content herein is provided for educational purposes and should not be inferred as applying only to DWI / DUI criminal defense. In fact, it may be equally relevant to claims of personal injury involving accidents and the consumption of alcohol or more simply, to the daily practice of law.

Bill Powers lectures on such issues on a regular basis with the intent to educate, to be fair, to be accurate and to encourage, open, honest and scientific discussion on the subject. The Law Office of Bush & Powers is no longer a legal entity, as Tom Bush & Bill Powers are no longer law partners. Bill Powers is managing partner of Powers McCartan, pllc.

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September 2, 2011 Leave a comment

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Out-of-State Travel & Supervised Probation – Avvo.com

September 2, 2011 Leave a comment

Can i travel to another state to visit if i am on supervised probation for a dwi – Avvo.com.

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Flight from Consensual Encounter or Unlawful Investigatory Stop NOT Resist Obstruct or Delay

September 2, 2011 Leave a comment

The Case: North Carolina v. White (N.C. App. 2011) Review of a case from Moore County North Carolina. Appeal by Defendant from denial of Motions to Suppress by Judge Shannon R. Joseph and Judge R. Stuart Albright in the Superior Court of Moore County.

Standard of Review NCGS § 7A-27(b) – Appeal from Judgment by Conviction or Plea & Appeal

North Carolina General Statute § 15A-979(b) “An order finally denying a motion to suppress evidence may be reviewed upon an appeal from a judgment of conviction, including a judgment entered upon a plea of guilty.”

Seizure of Person

“An individual is seized by a police officer and is thus within the protection of the Fourth Amendment when the officer’s conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.” State v. Icard, 363 N.C. 308(2009) citing Florida v. Bostick, 501 U.S. 429 (1991).

Police Show of Authority – STOP, Police!

Police conduct necessary for a seizure may include a “show of authority” that restrains an individual’s freedom of movement. State v. Farmer, 333 N.C. 172 (1993). Such a show of authority includes, among other things, “the officer’s words and tone of voice.” Icard.

Failure to Submit to Authority – Not a Seizure UNTIL Tackle

Show of authority is required for a Fourth Amendment seizure to occur, that alone is not sufficient. California v. Hodari D, 499 U.S. 621 (1991). Even though an officer’s pursuit constituted a show of authority enjoining the defendant to halt, because the defendant did not comply, he was not seized until tackled.

United States Supreme Court – Hodari D

The word ‘seizure’ . . . . does not remotely apply . . . to the prospect of a policeman yelling ‘Stop, in the name of the law!’ at a fleeing form that continues to flee. That is no seizure . . . . An arrest requires either physical force . . . or, where that is absent, submission to the assertion of authority.

Seizure in North Carolina v. White

“We conclude no investigatory stop occurred in the present case. Instead, Detective Edwards arrested Defendant when he “’fell on top of him,’ and placed him in handcuffs for resisting, delaying, and obstructing a public officer.”

North Carolina Investagatory Stop

An investigatory stop is a “brief stop of a suspicious individual in order to determine his identity or to maintain the status quo momentarily while obtaining more information.” Adams v. Williams, 407 U.S. 143 (1972). Such a stop may only be justified by “a reasonable suspicion, based on objective facts, that the individual is involved in criminal activity.” State v. Watkins, 337 N.C. 437 (1994) “Thus, a police officer must have developed more than an ‘unparticularized suspicion or hunch’ before an investigatory stop may occur.” State v. Willis, 125 N.C. App. 537 (1997) (quoting Watkins, 337 N.C. at 442 (1994)

Probable Cause to Arrest

Law enforcement needs probable cause, not reasonable suspicion, in order to effectuate Defendant’s warrantless arrest. State v. Mello, 200 N.C. App. 561, (2009). Probable cause, not reasonable suspicion, is required before making an arrest.

Consensual Encounters – Freedom to Ignore

Defendants’ flight from consensual encounters with the police, in high-crime areas, did not justify their arrest for resisting a public officer. State v. Sinclair, 191 N.C. App. 485 (2008) and State v. Joe, No. 10-1037, __ N.C. App. __, __ S.E.2d __, (2011). Prior to the defendant’s flight the encounter was consensual and a“reasonable person would have felt at liberty to ignore [the officer’s] presence and go about his business.”

Resist, Obstruct & Delay – Unlawful Investagatory Stop, Insufficient Evidence

N.C. Gen. Stat. § 14-223; “If [the attempted investigatory stop] was unlawful, there was insufficient evidence that [the police officer] was discharging or attempting to discharge a duty of his office.” Sinclair. Defendant’s subsequent flight from a consensual encounter or from an unlawful investigatory stop cannot be used to justify his arrest for resisting, delaying, or obstructing a public officer.

Bill Powers lectures on such issues on a regular basis with the intent to educate, to be fair, to be accurate and to encourage, open, honest and scientific discussion on the subject.

Attorney Bill Powers did NOT represent the Defendant in the particular cause of action. F. “Bill” William Powers AVVO.com

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Flight from Consensual Encounter or Unlawful Investigatory Stop NOT Resist Obstruct or Delay – Avvo.com

September 2, 2011 Leave a comment

Flight from Consensual Encounter or Unlawful Investigatory Stop NOT Resist Obstruct or Delay – Avvo.com.

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Bill Powers Discusses Travel During Supervised Probation in North Carolina – Common Terms, Conditions & Policies

September 2, 2011 Leave a comment

We regularly receive inquiries regarding Supervised Probation. That is especially true after someone meets the Probation Officer or PO, and begins to learn how complex the entire process may be.

The most important thing to remember is this: OBEY YOUR PROBATION OFFICER.

Supervised Probation in North Carolinaconsists of different conditions. The “Regular Conditions” of probation, that is, the standard conditions applied in just about every case unless otherwise authorized or directed by the Court, include a specific provision “Remain in this jurisdiction unless permission to leave by the court and officer (this includes any travel outside the State of North Carolina).” Technically, “this jurisdiction” could be inferred to mean the specific COUNTY as well as the State ofNorth Carolina.

Regular Conditions

• Report to probation officer as directed

• Commit no further offense(s)

• Possess no firearms or deadly weapons

• Pay supervision fees, court costs, fines, attorney fees and restitution as Ordered

• Remain in this jurisdiction unless given permission to leave by the court and officer (this includes any travel outside the state ofNorth Carolina)

• Maintain employment or pursue a course of study or vocational training to aid in employment

• Attend and complete anger treatment if required

• Satisfy child support and family obligations as required

Special Conditions of Probation

Other requirements often associated with probation are called “Special Conditions.” Special conditions of probation are those conditions that are specific to an individual case, and may or may not be the same for someone convicted of the same offense.

Special Conditions may include:

• Warrantless Searches

• Not possess or use illegal drugs, participate and complete treatment

• Submit to drug screens for the detection of illegal substances

• Not possess or use alcohol, participate and complete treatment

• Submit to alcohol screens for the detection of alcohol

• Community Service

• Surrender driver’s license and not operate a motor vehicle

Payments

Another common condition of probation is payment to the State ofNorth Carolinafor certain costs, fees, and fines associated with violating the laws of the State ofNorth Carolina.

Those include:

• Court Costs & Fines

• Probation Supervision Fees

• Restitution to Victims

• Community Service Fee(s)

• Attorney Fee(s)

Violating Probation

Probationers are required to follow all conditions and the directions given by the Court and the Probation Officer. By willfully failing to abide by any condition, one may be deemed to have “violated” the terms of probation. The consequences may be one or more of the following:

• Verbal Reprimand

• Community Service

• Electronic House Arrest (EHA)

• Jail Time

• Revocation (Activation of Suspended Sentence)

• Mandatory Treatment

NOTE: There may be other facts and law relevant to the issue. Readers should not base any decision on the; information provided herein and are specifically advised no client-lawyer relationship has been established. Put simply, seek the advice of competent counsel without delay to discuss the particular aspects of the case, factual scenario and historical background WHY: The content herein is provided for educational purposes and should not be inferred as applying only to Traffic Tickets & Criminal Defense. In fact, it may be equally relevant to claims of personal injury involving accidents and the consumption of alcohol or more simply, to the daily practice of law. Bill Powers lectures on such issues on a regular basis with the intent to educate, to be fair, to be accurate and to encourage, open, honest and scientific discussion on the subject.

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Charlotte Mecklenburg Police Officer Serves Jail Time for Courtroom Testimony

August 25, 2011 3 Comments

NEWS 14 CAROLINA

CHARLOTTE – A former Charlotte-Mecklenburg police officer walked out of the Mecklenburg County Jail Wednesday, following a 24-hour sentence for contempt of court.

Barry Grimes pleaded guilty to lying under oath, and now, all of the arrests the 25-year-old made are in question.

“We rely on what police officers say. We rely on them telling the truth, and when someone doesn’t, it really hurts everyone as a whole,” said DWI defense attorney Bill Powers.

Court documents show Grimes lied during a DWI case. He told the court he performed several sobriety tests on a driver, but a dash cam showed Grimes never administered the tests to the woman.

“Police officers are given a lot of leeway in court, and when you hear of one that is willing to lie to get a conviction, it scares you to death,” Powers said.

The district attorney’s office decided to drop approximately 10 DWI cases where Grimes was the lead, and dropped two to three times more in traffic violations.

“If he’s the key witness, the only witness, then it’s very hard for a prosecutor to take those cases to trial,” said James Flanagan, a visiting professor at the Charlotte School of Law.

The DA’s office says it will proceed with some of Grimes’ cases where it feels it can prosecute. But Grimes won’t be called to testify anymore.

“We rely so much on officers’ integrity and telling the truth, and when one does not tell the truth, unfortunately, it hurts the reputation of everyone else on the force,” Powers said.

Grimes was hired by CMPD in September 2008. He resigned in May.

Bill Powers lectures on such issues on a regular basis with the intent to educate, to be fair, to be accurate and to encourage, open, honest and scientific discussion on the subject.

Attorney Bill Powers did NOT represent the Defendant in the particular cause of action.

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Ambien Defenses – Fayetteville Observer – Bill Powers Comments

July 25, 2011 Leave a comment

By Michael Zennie
Staff writer

ALBEMARLE – Robert Stewart’s lawyers appear to be staking his life, at least in part, on a little-used defense tactic that has gained legal traction in North Carolina and around the country in recent years.

And it’s a defense that could, potentially, see Stewart walk free if a jury finds him not guilty on all charges.

Lawyers Jonathan Megerian and Franklin Wells have offered strong clues during jury selection that they will argue that Stewart was under the influence of the sleep medication Ambien, and other prescription drugs, when he killed eight people at the Pinelake Health and Rehabilitation Center in Carthage in 2009.

Stewart told a judge this month that he admitted to the shooting spree that killed seven elderly patients and a nurse. Two others, including a police officer, were injured.

His lawyers have said Stewart was not in control of his actions because of a combination of alcohol and three prescription drugs he was taking, including Ambien. As such, they say, he should not be held legally responsible.

The so-called “Ambien defense” rests on the rapidly developing legal history that the popular medication can cause users to do a variety of activities – including driving, mowing their lawns or cooking – in their sleep, all while effectively “blacked out” and unconscious.

“Honestly, I just didn’t believe it the first time I heard it,” said Bill Powers, a Charlotte lawyer who argued his first Ambien-related defense in 2008.

But, he said, after interviewing experts and doing research, he found compelling evidence that the medication has a history of causing some users to do strange things in their sleep while neither conscious nor in control of their actions.

His most memorable case involved a man who was stopped after swerving his vehicle all over the road and crashing into a parked car. When a police officer pulled over the man – who was wearing his pajamas – he was conversational and responsive, but he gave bizarre responses to questions. For example, when he was asked to name the president of the United States, he said Abraham Lincoln.

Powers said he’s had success convincing juries that the drug can cause people to do everyday things while under its influence.

“Enough people have taken Ambien that they understand the practical idea behind the argument,” he said.

Automatism

The Ambien defense boils down to a rarely used legal argument called automatism, which says the defendant was like an “automaton” and was neither aware nor in control of his actions.

In addition to the automatism defense, Stewart’s lawyers have filed notice they plan to argue insanity, which means he did not understand the consequences of his actions, and diminished capacity, which means he is not fully responsible for everything he did.

If the automatism defense is successful and Stewart is acquitted, he could be released from jail, said Jeffrey B. Welty, a public law professor at the University of North Carolina School of Government.

“If a defendant prevails on that, that’s it. The case is over. They go home,” he said.

Unlike an insanity defense, which is based on a defendant’s ongoing mental instability, there would be no required commitment to Central Regional Hospital or regular evaluations. However, facts that come up in an automatism case could result in a civil commitment, if a judge is persuaded the suspect is a danger to himself or others, Welty said.

How, or whether, all three tactics will work together is unclear. The defense has not started to lay out its case. The only clues have come from the questions the lawyers have asked potential jurors during jury selection in Stanly County.

Twelve jurors and four alternates are needed before the trial begins. Jury selection was moved to Stanly County because of publicity. Once jury selection is completed, jurors will be bused to Carthage each day for the trial.

Twelve jurors and one alternate have been seated.

Defense lawyers have asked potential jurors about their history with Ambien and the anti-anxiety drug Xanex.

While explaining a question to a potential juror on Wednesday, Megerian said Stewart went to his doctor less than 48 hours before the shootings seeking help for emotional issues he was having.

The nurse or physician’s assistant he saw prescribed him an antidepressant, Lexapro.

It remains to be seen how that drug, or Stewart’s mental history, will play into the defense strategy.

Stewart has been examined by experts hired by both defense lawyers and prosecutors. Megerian has said jurors are likely to hear testimony from doctors, psychiatrists, psychologists and pharmacologists.

Getting the jurors to believe the Ambien defense could prove challenging, said Powers, the Charlotte lawyer.

Convincing a jury that Ambien caused someone to drive a car in the middle of the night is one thing. Convincing 12 jurors that it caused Stewart to kill eight people with a shotgun is another matter entirely, he said.

One difference, Powers said, is that his clients who were found to be under the influence of the drug were discovered during times they would normally be asleep, usually within three to six hours of taking Ambien.

The Pinelake shootings occurred in the morning.

Powers said he couldn’t recall any instances in which the defense has been used successfully in a capital case.

In 2009, a Colorado man argued he was under the influence of alcohol and five doses of the drug when he bludgeoned a friend to death with a hammer. A judge was not convinced and sentenced him to 48 years in prison.

In North Carolina, automatism, the underlying legal argument behind the Ambien defense, is rarely used, and is even more rarely successful, said Welty, who researched the legal history of the defense for a blog post on the topic earlier this year.

And it specifically differs from voluntary intoxication, where the suspect argues he was impaired by alcohol or illegal drugs.

A man unsuccessfully argued automatism in a 2009 Durham County murder case, during which a forensic psychiatrist argued the defendant was in a dissociative state when he killed the victim and was not in control of his actions.

Welty and Powers agreed that the success of the Ambien defense in the Stewart case comes down to two factors.

First, defense lawyers must convince the judge to instruct the jury that they have to consider the automatism defense. If the judge believes Stewart’s evidence that he was not in control of his actions is strong enough, he can tell the jury to include arguments about automatism during its deliberations, Welty said.

In North Carolina, the judge’s instructions to the jury have made the biggest difference in whether jurors return with a “not guilty” verdict, he said.

Second, it matters how convincing the defense team’s experts are. If the jury can believe the testimony of a forensic toxicologist or psychologist, it will go a long way to making an effective defense, Powers said.

Staff writer Michael Zennie can be reached at zenniem@fayobserver.com or (910) 486-3583.

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