Surry County appeal shot down

By Terri Flagg -

RALEIGH — The N.C. Court of Appeals rejected the appeal of a Surry County case involving a citation for driving with an open container of alcohol in an opinion published April 19.

The defendant, Juan Fitzgerald Allen, 51, formerly of Penny Lane, East Bend, had already served the 20 days of jail for the open container conviction well before the court heard the appeal in November 2015.

He served that sentence concurrently with a two-year sentence for a DWI conviction from the same incident.

By the time the court published the opinion last Monday, Allen had already been out of jail on that conviction for nearly four months, according to the Department of Public Safety’s public information website.

Appellate Defender James Grant could not comment as to why his client had pursued the appeal.

“It’s moot as a matter of practicality,” he said. “A published case has precedential value. We did file a motion to ask the court to reconsider its opinion.”

The appeal concerned language the officer wrote on the citation charging Allen with the crime, which is a common complaint in many appeals.

“Indictment issues are the bane of the prosecutor’s existence,” UNC School of Government professor Jessica Smith wrote in a July 2015 post on the school’s blog.

“The rules about how an offense must be alleged in the indictment are highly technical. And because the rules are neither intuitive nor entirely consistent across offenses, they are hard to keep straight. Not surprisingly indictment issues account for a lot of black ink in the appellate reporters.”

Allen was cited by an officer with the Mount Airy Police Department in July 2013 with driving while impaired, driving while license revoked, transporting an open container of alcohol, expired or no inspection and an expired registration.

According to court documents, a breathalyzer test registered Allen’s blood alcohol level at 0.23 about an hour after his arrest.

The legal limit in North Carolina is 0.08.

Allen pleaded not guilty to the charges in Surry County District Court in Feburary 2014 and was found guilty.

In a January 2015 Superior Court trial de novo, or a new trial conducted as if there had been no previous trial, the state dismissed the charges of driving with an expired registration and no vehicle inspection.

A jury returned a guilty verdict to charges of DWI, driving while license revoked and transporting fortified wine or spiritous liquor without being in an unopened original container.

Presiding Judge Stuart Albright gave Allen a two-year active sentence for the DWI conviction and 20 days for the transporting an active container, to be served concurrently.

Because the jury also found as an aggravating factor that Allen’s license was revoked because of impaired driving, he arrested judgment on the driving-while-license-revoked charge.

Allen appealed on a technicality, arguing that the citation charging him with transporting an open container of spirituous liquor “failed to allege an essential element of that offense.”

The court document quotes the language on the citation issued to Allen as: “Defendant did unlawfully and willfully operate a (motor) vehicle on a (street or highway)(public vehicular area) transport open container of fortified wine/spirituous liquor unopened original container G.S. 18B-401.”

The statute for that crime states that it “shall be unlawful for a person to transport fortified wine or spirituous liquor in the passenger area of a motor vehicle in other than the manufacturer’s unopened original container…”

Judge Wanda Bryant wrote that the requirements for a valid citation (a police-issued order to appear before a judge on a given date to defend against a stated charge) weren’t as stringent as those for a valid indictment (a formal written accusation of a crime) according to statute, and that the defendant had not offered case law to show otherwise.

While “an indictment must allege lucidly and accurately all the essential elements of the offense,” a citation must merely “identify the crime charged.”

For Bryant, and Judges Martha Greer and J. Douglas McCullough, who concurred, the officer’s language was close enough.

Grant filed a motion requesting the court to withdraw the opinion on April 20, arguing that the opinion “evidences a factual misapprehension and conflicts with precedent.”

Challenging the court’s contention that no case law was offered in the appeal to support the equality of citations with indictment requirements was incorrect, the motion points to specific sections of Allen’s appeal where a relevant case was indeed cited.

The motion also included arguments that court “has long held that a citation, when it is the criminal pleading upon which a defendant is tried, must, like an indictment, properly allege a criminal offense,” providing several examples of cases.

By Terri Flagg

Reach Terri Flagg at 415-4734.

Reach Terri Flagg at 415-4734.

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