CMPD DWI Checkpoints

Charlotte Mecklenburg Police were out in force last night. According to the Charlotte Observer, CMPD set up a DWI Checkpoint at the 600 Block of East 7th Street near North McDowell Street. After issuing 40 charges, including 12 DWI arrests, CMPD closed up shop.

DWI Checkpoints cannot be set up on a whim. They must adhere to strict constitutional standards set forth by not only the North Carolina appellate courts, but also the US Supreme Court. Interestingly enough, DWI checkpoints have different guidelines than a simple general license checkpoint. If you were arrested as a result of a DWI checkpoint or any checkpoint set up by a police department, it is important that you have an attorney review your case. I had a case dismissed based upon a lack of probable cause to arrest by CMPD resulting from my client being stopped at a license checkpoint.

DWI/DUI Breathalyzer- A NC Christmas Gift

Looking for a Christmas gift for a loved one? I was looking through the Black Friday Christmas ads this Thanksgiving morning and came upon a stocking stuffer on sale at OfficeMax. For $49.99 you can purchase a Backtrack Personal Breathalyzer, a small breathalyzer that estimates your blood alcohol content in seconds. To learn more,  click here

Before you get excited, let me caution you. Sobriety on roadways is a serious issue. I found it ironic that this was being advertised at a store that sells office products. Moreover, alcohol detection devices are scientific instruments. They need to be treated with care, calibrated often, and operated by those who have been trained to use it. They do not always give a true reading. Whether the breathalyzer was operated correctly and in good working condition at a time a person was arrested is a central issue in any DWI/DUI case in North Carolina. When I was a prosecutor, I spent time at the crime lab being trained on the machine and learned about the process behind them. It was an excellent way to learn about the machine, and more importantly, how it failed.

Go to Jail for A DWI in North Carolina?

If you or a loved one are facing a DWI, you are probably asking yourself if the possibility of going to jail exists. If going through the arrest process, spending time at the county jail, waiting for your bond to be posted,  getting your vehicle back, and telling family and friends about the incident isn't already enough, you now are asking if you will go to jail for a DWI in North Carolina.

The punishment for a North Carolina DWI will vary from serving no jail time to substantial jail time. A number of the following factors will affect your sentencing:
* whether you have a prior dwi offense
* The breathalyzer or blood alcohol result
* If you had a child in your car under 16 years of age at the time you were arrested
* Your prior driving record
* If you have completed a substance abuse assessment

In North Carolina there are 5 levels of sentencing for a DWI. Depending on a number of factors, including those listed above, will dictate what level you are at and what punishment awaits you.
Level 5: 24 hours to 60 days in jail
Level 4: 48 hours to 120 days
Level 3: 72 hours to 6 months
Level 2: 7 days to 1 year
Level 1: 30 days to 2 years

Before you start to panic, there are many things that can be done to prevent you from going to jail. Many DWI cases are flawed. The District Attorney must proved each element beyond a reasonable doubt. Did the officer see you driving? Did the officer have probable cause to arrest you? Did the officers violate the 4th Amendment when they stopped you at the DWI checkpoint? Were the proper field sobriety tests given? Was the breath machine working properly? Did the District Attorney give you proper legal notice that they were going to admit your breath results at trial? These are only some of the questions that must be answered before a person considers admitting guilt to a DWI in North Carolina. Don't throw the towel in yet- there is a lot that can be done to make sure your rights are protected.

If you ultimately decide to admit guilt, it is important that you are prepared for sentencing. North Carolina has aggravating and mitigating factors that a judge must consider at sentencing. A mitigating factor, like a clean driving record for a period of time or obtaining a substance abuse assessment prior to sentencing, can help decrease your ultimate punishment. An attorney can ask that your jail time be 'suspended', meaning not imposed if you abide by your probation terms. If you have prior DWI's and are facing substantial jail time, an attorney can ask the judge to allow you to serve your jail time in a residential treatment facility where you can continue to work.

Driving While Intoxicated in North Carolina- Blood/Breath Test Admissibility

Anyone arrested for driving while intoxicated or a DUI immediately wants to know the result of their breath or blood test. Was I over a .08? Will I face charges if I was .07? These are all valid questions, but a central question right now for a defense attorney is how the District Attorney is going to have breath or blood results admitted at trial. A few months ago the US Supreme Court issued an important ruling in Melendez-Diaz v. Massachusetts that subsequently affects the way DWI/DUI cases are proceeding throughout North Carolina Courts.

Prior to the Melendez-Diaz ruling, state law permitted the District Attorney to admit breath or blood test results by a simple affidavit. The person who administered the breath test would never testify. The chemical analysis of a blood result or breath test was submitted on paper and defense attorneys were not given the opportunity to cross examine the witnesses that performed these crucial tests. A defense attorney could always subpoena the witnesses themselves, but many felt they shouldn't have to. The US Supreme Court essentially agreed and stated in the Melendez-Diaz opinion that the burden "is on the prosecution to present it's witnesses, not on the defendant to bring those adverse witnesses into court." Remember, when a person is accused of a crime, it is the prosecution's burden to prove every element of an offense and everyone is presumed innocent until proven guilty. Prior to this case, I felt the law permitting a blood or breath test result admissible by affidavit essentially shifted the burden to the defense to show that the test was wrong. This effectively made defendants prove their innocence, rather than the prosecution proving their guilt.

So how does this change things on a practical level? The District Attorney must call additional witnesses at trial and cannot rely on an affidavit to prove a breath or blood result. Starting October 1st, there will be additional changes to this law. More on that later. Meanwhile, the District Attorney is sending out extra subpoenas.

Here is a short YouTube video on the subject. Looks like this was done before the Supreme Court issued the opinion: http://www.youtube.com/watch?v=C5HmaDjeH5Y

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/