Must a prosecutor dismiss a DWI charge once a suppression order has eliminated all the evidence of guilt?

Plain-English summary

In a district-court DWI case, the defendant moved to suppress all evidence from the vehicle stop. The judge entered a final order suppressing that evidence as the product of an unconstitutional stop, and the prosecutor did not appeal the preliminary ruling to superior court. The suppressed evidence was the only evidence of the alleged crime, and the case was re-calendared. The prosecutor asked whether she could call the case, arraign the defendant, offer no evidence, and rest, forcing the judge to dismiss, or whether she had an ethical duty to dismiss the case herself.

The opinion concludes that a prosecutor has a duty under Rule 3.1 not to bring a proceeding unless there is a non-frivolous basis in law and fact for doing so. Because the prosecutor knows she has no admissible evidence supporting the DWI charge to present at trial, she must dismiss the charge before calling the case for trial.

In practice

The opinion holds that, under Rule 3.1, a North Carolina prosecutor who knows that all evidence supporting a charge has been suppressed and that she has no admissible evidence to present must dismiss the charge rather than calling the case and offering nothing to force a judicial dismissal.

Common questions

Q: Can a prosecutor call a case for trial knowing all the evidence has been suppressed?

A: Per the opinion, no. A prosecutor who knows she has no admissible evidence to present must dismiss the charge before calling the case, under the Rule 3.1 duty not to pursue a proceeding without a non-frivolous basis.

Q: Does the prosecutor have to dismiss, or can she let the judge dismiss?

A: The opinion concludes the prosecutor must dismiss the charge herself before calling the case for trial, rather than calling it, resting without evidence, and requiring the judge to dismiss.

Background and rules framework

The opinion interprets North Carolina Rule of Professional Conduct 3.1 (meritorious claims and contentions; no proceeding without a non-frivolous basis in law and fact), which corresponds to ABA Model Rule 3.1. The factual setting arises under the DWI suppression procedure of N.C. Gen. Stat. 20-38.6.

Citations and references

Rules of Professional Conduct:

• Model Rule 3.1 / NC Rule 3.1 (meritorious claims and contentions)

Statutes:

• N.C. Gen. Stat. 20-38.6(a), (f) (pretrial suppression motions in implied-consent/DWI cases)

See also

• ABA Formal Op. 467: Prosecutors' Managerial and Supervisory Obligations
• NC State Bar 2009 FEO 5: Reporting Status to ICE

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/2009-formal-ethics-opinion-15/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Inquiry:

In a Driving While Impaired (DWI) case in district court, a defendant makes a pretrial motion to suppress all evidence obtained from the stop of his vehicle pursuant to N.C. Gen. Stat. A720-38.6(a). After considering the evidence offered at the pretrial hearing, the district court judge enters an order pursuant to N.C. Gen. Stat. A720-38.6(f) indicating his/her preliminary inclination to grant the defendant's pretrial motion because the stop was unconstitutional in violation of the Fourth Amendment. The prosecutor does not appeal this preliminary ruling to superior court and the district court judge's decision becomes a final judgment pursuant to the statute. The district court judge enters a final order suppressing the evidence from the vehicle stop. The evidence from the vehicle stop was the only evidence of the alleged crime. The case is re-calendared.

May the prosecutor call the case for trial, arraign the defendant (who pleads not guilty), call no witnesses or otherwise offer evidence, and rest the case, thus requiring the judge to dismiss the case; or does the prosecutor have an ethical duty to dismiss the case after all evidence of guilt is suppressed pursuant to the pretrial motion?

Opinion:

A lawyer has an ethical duty, under Rule 3.1, not to bring a proceeding unless there is a basis in law and in fact for doing so that is not frivolous. In light of this duty, a prosecutor who knows that she has no admissible evidence supporting a DWI charge to present at trial must dismiss the charge prior to calling the case for trial.