Gaston County DWI/DUI Checkpoints- A St. Patrick's Day Celebration

For those of you who celebrate the Irish and are looking forward to St Patrick's Day- celebrate with caution in Mecklenburg and Gaston County. According to the Charlotte Observer, the Gaston County Police Department is in the middle of an eight day crackdown of DWI/DUI drivers and unlicensed drivers in Gaston County. The checkpoints started Friday night and will continue through the week.

As a former prosecutor and now criminal defense attorney in North Carolina, I can unequivocally state that having a designated driver or a cab company's phone number programmed into your cell phone is the best option. Do not depend on the luck of the Irish to get you home this week. The cab fare of $50 may seem a bit steep at the time, but the costs of a DWI are much higher. If you go the designated driver route, some bars such as Freeman's Pub on main street in Gastonia are offering free appetizers and non alcoholic drinks to designated drivers.

DWI/DUI Breath Test- Dismissals in DC

The Washington D.C. Police Department is trying to determine what went wrong with the police department's breath alcohol machines. The department uses the Intoxilyzer 5000 EN machine. The police department has called for an investigation into the matter. Meanwhile, attorneys representing those accused of DWI/DUI are finding their clients cases reduced or dismissed. According to an article in the Washington Examiner, the city has "rebuffed" several judges requests for an explanation after DWI cases dating back to October 2008 were dismissed or reduced.

In North Carolina, a person should be given the option of a breath or blood test when arrested for a DWI/DUI. Many people assume that a breathalyzer machine is just like any other machine- turn it on and it works. This is not always the case. Although widely used by police departments, they can produce an inaccurate reading. A criminal defense attorney can contest the accuracy of the breath test in a DWI case. Radio frequency interference, breath technician operator errors, improper calibration, and improper officer training are common examples that can produce an inaccurate reading. Mecklenburg County Police Department primarily utilizes the Intoximeter EC/IR II for breath tests in DUI/DWI cases.

Driving Impaired In North Carolina- Police Need to Check the Right Box!

The North Carolina Court of Appeals recently issued a case, Lee v. Gore, that affects driving impaired/ driving under the influence (DWI/DUI) cases in North Carolina. Simply stated, when a person is issued a North Carolina Drivers License, the person essentially agrees to submit to a breath or blood test if a police officer believes you are impaired. If you refuse, your license can be automatically suspended by the NC DMV for 12 months. However, the police officer or the person who administered the blood/breath test must correctly fill out an affidavit stating that the implied consent procedures were correctly administered. In a refusal case, one in which the police alleges that the person refused to supply a sample, this affidavit contains additional information. In the Lee v. Gore case, the police officer failed to check the box that stated the driver willfully refused to submit to a chemical analysis. The NC Court of Appeals ruled that the language of the law required the affidavit to be filled out correctly and, in Lee v. Gore, the North Carolina DMV had no basis to revoke the persons drivers license for 12 months when the form was not filled out correctly.

The UNC School of Government wrote an interesting post on this today. They have a daily blog on legal issues that many North Carolina criminal defense attorneys follow. It also provides another example on how technical driving while impaired cases are in North Carolina. After arrested for a DUI, many feel there is no chance of success, especially in cases where there is a high blood alcohol reading. However, a good DWI lawyer in North Carolina looks at every issue- the complex, and in some cases, as straight forward as failure to check a box. So, if Driving Impaired in North Carolina, Police need to check the Right Box!

Jail Time for Prior DWI/DUI Conviction?

Being arrested for driving while impaired (DUI/DWI) in North Carolina can have a drastic impact on a person; driver's license suspension, car insurance increase, court ordered alcohol programs, stiff penalties and large fines. Throughout North Carolina, including Gaston and Mecklenburg Counties, a person arrested for a DUI/DWI who has a prior conviction, will most likely face jail time if convicted. It is important to know that there can be options to those who face this possibility. I find people in this situation want to know the best case scenario (a dismissal or a finding of not guilty) and the worse case scenario (a conviction). Many clients will ask if they are convicted, and they have a prior driving while impaired conviction, are they going to Mecklenburg or Gaston County Jail?

As a special condition of probation, North Carolina General Statute 20-179 (k1) gives a judge the discretion to order that any term of imprisonment (jail time) be served in an impatient facility license by the state that treats alcoholism or substance abuse. A simple example would be if a person was sentenced to 60 days in jail, that 60 days could be served in a rehab facility in lieu of jail. Another option in Mecklenburg County is DWI Court. At sentencing, a defendant requests a referral to the DWI court. If accepted, probation determines if the judge's jail sentence is imposed. The person participates in a very intense program, supervised by both probation and the courts, where addiction issues are addressed. In many cases, if the defendant successfully completes the program, the jail time is not imposed.

It is good to see the legislature opening the door to treatment instead of automatic incarceration. Alcohol is a triggering factor in many circumstances. The U.S. Department of Justice Report on Alcohol and Crime found that alcohol abuse was a factor in 40 percent of violent crimes committed. A quick summary of these statistics show that among the 5.3 million convicted persons in 1996, almost 36% (2 million) were estimated to have been drinking at the time of the offense. Comparably, the National Drug Court Institute reports that adult drug courts in California reported that re-arrest rates over a 4 year period were 29 percent for drug court clients and 17 percent for drug court graduates. For those who did not participate in a drug court program, 41 percent were re-arrested. As a former prosecutor from Orange County, California,  I was actively involved with both the Drug and DUI/DWI Courts. Having observed many success stories, it is good to see the legislature in North Carolina responding by giving judges the discretion to permit in-patient rehab in lieu of jail. It is also welcome sight to see Drug and DWI/DUI Courts operating in Mecklenburg County.

DWI/DUI Cases: A Former Prosecutor's Perspective

The holidays are around the corner; the start of holiday parties and holiday cheer. With this starts a busy period for police departments throughout North Carolina and an increase of  DWI patrols in the Charlotte area. As a former prosecutor from Orange County, California, I had police officers in my office on a daily basis. I prosecuted hundreds of DWI/DUI cases and took dozens to jury trial.  I thought it would be insightful to talk about DWI/DUI cases and a former prosecutor's perspective.

When a driving while impaired/drunk driving trial landed on my desk for trial, the first thing I would do is look at my arresting agency, specifically the police department who arrested the person, like CMPD or Pineville Police Department. Some agencies were simply more effective than others. Then I would look at my police officer- if I was not familiar with him/her, I would ask other prosecutors in the office or contact the Police Department's witness liaison to get some information on the officer. A DWI/DUI case will often succeed or totally fail based upon the police officers testimony. How thorough was the police officer, did he/she conduct the correct Field Sobriety Tests, how long has the officer been doing this and who trained him/her. Decisions to proceed with borderline cases, like a .07 breath/blood result, would often be made after evaluating the police officer, his report, and interviewing him directly. Of course I would evaluate the field sobriety tests, the results of the breath/blood test, driving patterns and objective signs of intoxication, but I would also do more.

If an inventory search was conducted on the car, I wanted to know EVERYTHING that was found in the vehicle. It was a huge advantage when the officer recovered a receipt from the restaurant where the arrestee was the night he/she was arrested. Many times an itemized receipt would show all the alcohol consumed by parties involved that evening. If the arrestee told the police officer where he/she was drinking or the receipt reflected it, I could send an investigator out to the location and interview the waiter/bartender who served the person. Another must, visiting the scene- always a must. You learn a lot about the road, the lighting and location where the person completed their field sobriety test. If it was a case where the police officer never saw the person actually driving, only saw them sitting in the car or near the car, a visit to the scene was incredibly important, especially if the defendant took the stand at trial. How can an attorney effectively cross examine a witness without having an understanding of the location being described. I cross examined many uncomfortable defendants trying to describe a situation that didn't exist- either they were making something up or they were too drunk to remember it correctly. I used both to my advantage.

As a criminal defense attorney now practicing in North Carolina, I approach criminal cases the same way. Effective representation requires this; a person arrested for DWI/DUI in North Carolina faces severe consequences.  I also know how a diligent prosecutor can effectively develop their case.

Arrested for DWI, What about My Miranda Rights?

Most people are familiar with the term Miranda Rights. We have all seen TV series that show someone being arrested and led to the car with the officer saying "You have the right to remain silent, anything you say can and will be used against you." A common question a DWI defense lawyer hears from those arrested for DWI in North Carolina is "I was arrested for DWI, what about my Miranda Rights?"

For Miranda to apply, two conditions must be met. You must be in custody and the police must be asking you a question that it designed to elicit an incriminating response. A person is in custody when a reasonable person no longer feels free to leave. If in handcuffs, you can pretty much assume you are in custody. However, if you have been pulled over and the police start asking you questions about whether you have been drinking, the State will argue that only an investigation is taking place. An investigation? You have been pulled over by a police car with flashing lights and a police officer is asking you to perform field sobriety tests and this is only viewed as an investigation and not designed to convict you of a crime? Seems a bit far fetched, but Courts have held that this is an investigation only.  Police purposely design their DWI/DUI investigations in such a way to ask you all these questions before you are placed in custody. You are under no obligation to answer their questions and help build a case against you. If a police officer continues to ask questions after you are 'in custody', then you are entitled to your Miranda Rights. Custodial status requiring Miranda warnings can be factually triggered in a variety of ways, not just being handcuffed.

Many times experienced defense attorneys successfully have a person's statement to police and the performance on the field sobriety tests excluded from evidence. It is important to have your case reviewed to ensure your Miranda Rights have not been violated. Even if your Miranda Rights were not violated during your DWI/DUI arrest in North Carolina, there are other ways an attorney can exclude answers given to a police officer during the investigation, the performance of field sobriety tests, and breath/blood results. I recently had a case dismissed not because of Miranda violation, but rather lack of probable cause to arrest. More on this later...

North Carolina Changes DUI/DWI Law

I wrote an earlier post addressing the recent case of Melendez-Diaz v. Massachusetts. The North Carolina legislature issued a response to the Supreme Court ruling in Melendez-Diaz. Four pages of single space text, that appears to be written in the English language, essentially changes the previous law that allowed the State to admit blood and breath test results in DUI/DWI cases without a witness. This is important because once the US Supreme Court issues an opinion ruling a law unconstitutional, the state must change the law. Here is the new statute- good luck reading!
http://www.ncga.state.nc.us/Sessions/2009/Bills/Senate/PDF/S252v5.pdf

With respect to blood and breath results in DUI/DWI cases in North Carolina, the State will now be required to notify the accused 15 business days before the date they intend to introduce the result in court and provide the accused with a copy of the result. The accused will then have five business days before the proceeding to file a written objection with the court. If the objection is not filed, the result can be admitted without any witness.

Jessica Smith from the UNC School of government does a great job explaining the new law. Here is the link to her summary- http://www.sog.unc.edu/programs/crimlaw/melendez-diazjsmithmemo.pdf

Getting Your License Back After DWI Conviction

My previous post addressed how to get a valid license when you have a DUI/DWI case pending. Now, assume you have pled guilty or were convicted of the DWI. A common question I receive is how do you go about getting your license back after a DWI conviction.

A limited driving privilege is available to most after conviction. Usually, a person's license will be suspended for 1 year after the date of conviction. If a person meets certain eligibility requirements, a limited privilege can be obtained from the courts. First, the driver must hold a valid license or had a license that was expired for less than one year at the time the DWI occurred. Second, the driver must not have any previous DWI convictions in the last seven years and not have any other DWI cases pending in the court system. Third, the driver must of received a level three, four, or five punishment from the judge. Finally, the driver must have valid insurance and filed a substance abuse assessment with the court.

Generally speaking, if granted, the driver will be allowed to drive to and from his/her place of employment, school, court ordered drug treatment programs, court ordered community service, emergency medical care and tasks related to the maintenance of his/her household.

A driver can apply for this privilege at the time of sentencing. However, if the driver was a .15 or above, the license will not be effective until 45 days after sentencing and the driver will only be allowed to drive to and from work, school, court ordered substance abuse programs, and the interlock service facility. North Carolina law will also require an ignition interlock device on the vehicle the driver operates.

The law that addresses this is GS 20-179.3. If you print this statute from your computer, it will be approximately 6 pages of single space information. It is full of exceptions, clauses, and confusing legal terminology.  Again, the punishment for driving on a suspended or revoked license is very severe. Every case is unique and different exceptions might apply making a person ineligible for the privilege. Court documents must be correctly filled out. Talk to an attorney before you get in a car and drive anywhere. Talk to an attorney before you go to the courthouse and try to do this yourself.

DWI- North Carolina's Pre Trial Limited Driving Privilege

You have been arrested for Driving While Intoxicated. The police officer took your drivers license. You now have a criminal case pending for DWI. Can you drive while your case is pending in the court system?  Under North Carolina law, a person arrested for DWI can apply for North Carolina's pretrial limited driving privilege.

A police officer will automatically take a person's license for a minimum of thirty days when they arrest and charge a person for DWI. For the first 10 days after arrest, the person is not allowed to drive. Generally speaking, after the 10th day, the person can file a motion with the court asking for a limited driving privilege for the remaining 20 days. Certain requirements must be met; at the time of the alleged offense, the person must have had a valid drivers license or have a license expired for less than 1 year, they cannot have any other DWI cases pending, and they must obtain a substance abuse assessment from a court approved program. A substance abuse assessment requires the person to go to a court approved provider and complete an interview with a counselor regarding their alcohol/drug use. If all criteria are met, the person must also present to the court a certified DMV Driving Record, a DL-123 proof of liability insurance, the substance abuse assessment, several copies of the court mandated limited driving privilege form, and, of course, a $100 civil filing fee. The judge will most likely grant the request and the person can drive for the remaining 20 days of the revocation.

After 30 days, the revocation period ends. At this point, the person can go to the courthouse and get their hard license back. In some counties, there will be an additional filing fee. In Mecklenburg County, the drivers license should be in the court file, called the shuck. Occasionally, however, the license is not there, somehow lost in the arrest and booking procedure. Or, the license will be stapled multiple times to different papers to a point of mutilation. In both cases, a person will have to go to the DMV and get a duplicate.

Once the 30 day revocation is over, assuming the license was valid before the offense, a person can legally drive once they have paid the revocation fee and obtained their license . Sometimes it is hard to understand how a person goes from being restricted from driving to being able to drive within 30 days after arrest; North Carolina statute states that if an officer has reasonable grounds to believe a person has violated an implied consent offense, a DWI, the officer is required to submit a revocation report to the court. However, once the revocation period ends, a person can legally drive because they have not been convicted of any offense. The person has only been accused and in our system a person is innocent until proven guilty. So while the case is pending, the person can drive.

If you are eventually convicted of the offense, your license will be revoked. More on this in the next post.

Warning- the punishment for driving on a revoked license when you have a DWI offense is very severe. A person does not want to face this charge. If a person is unsure if their license is suspended or revoked, I always recommend speaking to an attorney. Do not drive if your license is revoked.

DWI Checkpoints in Charlotte this Labor Day Weekend

Labor Day weekend is here, summer is officially coming to an end. The usual Friday morning hustle was ending earlier than usual at the Mecklenburg County Courthouse this morning. If you are heading out of town this weekend, watch your speed. According to the article in the Charlotte Observer today both the North Carolina and South Carolina Highway Patrol are going to "aggressively enforce the speed laws" according to Highway Patrol Commander Col. Harry Glover. A hot spot of activity should be the NC/SC state line where I77 and I485 meet.
http://www.charlotteobserver.com/topstories/story/927297.html

The Booze it and Lose it campaign  celebrates its 15th year anniversary this Labor Day weekend and is in effect through September 7th. Cabarrus county has a DWI/DUI checkpoint scheduled for Saturday night following up the one they held last Saturday night on Highway 49 in Harrisburg. Here is a link to the article on the hot spot of DWI activity in Cabarrus County on News14 Carolina.
http://news14.com/content/top_stories/613650/checkpoint-focuses-on--hot-spot--of-dwi-activity/