A North Carolina woman who was accused of driving drunk when she hit and killed a pedestrian in 2008 is awaiting her second trial as evidentiary issues are being questioned.

In the woman's first trial, she was convicted of several charges including second-degree murder and DWI. However, the North Carolina Court of Appeals has since overturned several of these convictions, in part because a witness for the state gave testimony that the defendant had been driving drunk based only on an odor test--smelling alcohol on her breath.

Arresting officers often smell the breath of suspected drunk drivers to test their sobriety, but this evidence is then usually strengthened by other methods, such as a Breathalyzer test or a blood test.

Deciding that the smell test was not enough evidence on its own to prove drunk driving, the appeals court overturned several convictions relating to the incident and ordered a retrial for the remaining counts. In the retrial, the state again wanted to use as evidence the claim of an alcohol odor. The court refused to allow it, but the district attorney is appealing that decision, which has caused the second trial to be delayed.

The woman has served about three years in jail for the other convictions. She is now free and is attending counseling while she awaits the second trial.

This case illustrates the state's responsibility of proving its case beyond a reasonable doubt, utilizing only legitimate evidence that was obtained legally; as well as the necessity that the charges themselves are appropriate to the crime.

Source: Gaston Gazette, "Court sides with suspected drunken driver in murder case," Diane Turbyfill, Feb. 7, 2012