Attorney Carilyn Ibsen's Blog

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2010-04-01T17:08:00.001-04:00

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Your Constitutional Rights- A Must See Video For Everyone

2010-03-31T20:53:00.001-04:00

When a criminal defense lawyer speaks to a client about their case, they will probably ask the question:
"what did you tell the police." When I was a prosecutor, I would often have jurors tell me after trial that they could not have found the person guilty without their statements to the police. For example, some will admit the drugs hidden under the seat in a car belonged to them. Similarly, in a domestic violence case the prosecution will often have an uphill battle if not for the statements to the police that the defendant admitted to hitting their spouse.

Why do people admit so much to police? Some don't realize what their constitutional rights are. Simple Justice wrote an informative blog today about asserting your constitutional rights respectfully to a police officer. It also highlighted a great video that everyone should watch- "10 Rules for Dealing with the Police". Any parent with a child going off to college should have their children watch this. If you go to the Cato Institute, you can watch the video for free. It addresses every situation- being pulled over by police for a traffic stop, police trying to search you, your car, your house, and answers questions about criminal investigations in general.

I believe some people feel the need to vindicate themselves to police officers. It's like being put back in the principal's office in elementary school. Last Monday I was pulled over by a police officer after leaving the Gaston County Courthouse. The state trooper was a man of few words. He walked up to my window and immediately asked for my license and registration. After he spent time examining my documents (by the way in North Carolina you must sign your car registration card in black ink), he finally told me I cut in front of another vehicle. While I totally disagreed with his version, I found myself engaging in a dialog about the events that occurred. I have practiced criminal law my whole career. I have spoke to hundreds of police officers both on the witness stand, off the witness stand and in social settings. I know my rights. I don't have to say anything. However, even I had trouble keeping my mouth shut. I can't complain about the encounter- the trooper didn't cite me for anything, he told me to be careful, but it reminded me of how upsetting it can be to be accused of anything, especially when you did nothing wrong.

I recommend the video. It's worth your time. It's worth your family's time.

A Charlotte Criminal Attorney's Perspective on Traffic

2010-03-28T09:57:00.001-04:00

My criminal law office is in the South Charlotte area. I like it that way- many criminal attorneys in the Charlotte area have their office next door to the courthouse. They prefer that. But I like the fact that my clients can find parking and not have to pay for it. I prefer my rent compared to uptown rent. Many times my clients never have to see the Mecklenburg or Gaston county courthouse. They prefer a trip to uptown be reserved for a Panther game or a Saturday evening at the Epicenter. They rather a trip to Gaston County be for the Daniel Stowe Botanical Gardens , not the courthouse or my office.

However, occasionally the frustration does set in when I experience the bottleneck of traffic at the I485 and I77. So my interest was peaked this morning when I saw the article in the Charlotte Observer, Making a case for urban road money, where the Observer reported that the DOT spent an average $3,756 for each North Carolinian during the past 10 years, but $2,967 per person in the most populous county, Mecklenburg. Yet, the county with the fewest people, Tyrrell, got the most road money. The article is worth a read. It is a hot topic- by 9:30AM online comments to the article were increasing.

You can't help but question where all the money goes. As a practicing criminal defense lawyer in the Charlotte area, I know police are still issuing traffic tickets, DUI/DWI arrests still occur on a daily basis, and I see the daily line of people paying their criminal fines at the courthouse. Did you know the minimum fine on a traffic ticket is $130! I'll keep doing my part and keep my clients out of that line. Meanwhile we have traffic bottlenecks, potholes and the Charlotte Observer to stir up the controversy.

Larceny? Possession Stolen Goods? An Armored Truck & The $100,000 Question

2010-03-25T19:23:00.002-04:00

A criminal defense attorney will often get asked "Is it illegal if a person...". My answer to this question usually goes something like this "If you feel the need to ask a criminal lawyer, you probably shouldn't do it".

Here is the hypothetical- you are driving down the street and suddenly bags of money are flying across the road- yours to keep? Finders Keepers? Well, back to my original question, may not necessarily be a good idea. MSNBC reported today that $100,000 went missing today after a bag of money fell from an armored vehicle in Columbus, Ohio. 911 callers told dispatchers that pandemonium broke out with people grabbing $20 bills. $12,000 has been returned but the rest is still unaccounted for.

Is this a crime? Larceny? Possession of Stolen Goods? Police are investigating the matter and told reporters that finding a $5 bill on the street is much different than finding marked bills laying in the middle of an intersection with bank bags around it. They also stated those who do not return the money could face grand theft charges. A similar charge to grand theft in North Carolina is felonious larceny or possession of stolen goods.

When asked how $100,000 fell out of an armored truck- the police stated that was the $100,000 question.

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

2010-03-14T14:41:00.002-04:00

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

2010-03-09T21:09:00.011-05:00

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.

The Crime Not Committed Yet Punished

2010-03-05T07:39:00.002-05:00

I don't think many criminal defense attorneys would disagree with the statement that people who commit crimes should be held accountable for their actions. Prosecutors, criminal defense lawyers and judges will debate over the correct way to hold people accountable for their wrongdoings. However, what about the situation when someone is held accountable for something they didn't do or the crime not committed yet punished?

While there was a recent editorial in the Charlotte Observer about Greg Taylor being declared innocent after spending 17 years in prison for a crime he did not commit, there are other stories on a smaller scale where people convicted of DWI/DUI, drug offenses or other misdemeanors in district court had convictions reversed on appeal.

Simple Justice had another great post addressing this issue. Toyota has been in the news daily; brake pedals malfunctioning, drivers not responsible for car accidents with some people being tragically killed. The post addressed the New York case of Koua Fong Lee; Mr. Lee was convicted of vehicular homicide after his Toyota Camry hit a car in 2006 that resulted in the death of 2 people. Mr. Lee was sentenced to 8 years. During the criminal trial, he claimed that he kept pumping the brakes as he exited the Interstate but the brakes failed to work. I imagine the case will now be reopened, but a defendant on appeal has an uphill battle.

After a person is convicted, they are sentenced. Many expect the defendant to take responsibility for his actions and ask the court for mercy at the time of sentencing. But cases like Greg Taylor and Koua Lee present a terrible scenario for any person. The Simple Justice Blog make an interesting point:

Lee's crime was being involved in an accident where people died. When someone dies, people see a crime and demand a criminal. Separate the anger at the outcome from the conduct involved, as we are now able to do in light of the Toyota defense, and this doesn't appear to have been a crime at all. In fact, the allegations clearly lead to the conclusion that it was a tragic accident. Lee was in his 1996 Toyota with his pregnant wife, father, daughter, brother and niece. Was his care for others so demented that he put them all at risk by ramming into other cars? It sounds ridiculous now. Today, a couple years later and after a wave of Toyota recalls, the conviction looks horrible wrong.

Any skilled criminal defense attorney must prepare not only their criminal case, but they must also prepare for sentencing. The client must be prepared. However, these two types of cases represent the unthinkable situation- the crime not committed yet punished.

Miranda Rights- The Garrity Exception For Police Officers

2010-02-28T12:37:00.001-05:00

Recently the United States Supreme Court handed down two cases that addressed Miranda Rights and if police officers violated an individual's right against self incrimination under the Fifth Amendment. The rulings in both cases were favorable to the prosecution. Courts have continued to carve out exceptions to Miranda Rights; ruling it doesn't apply, or simply found that the person waived their Miranda Rights. Many people are surprised to know that police officers are often given broader protection against self incrimination than the average citizen.

I recently read a post addressing this issue from the Simple Justice blog about the Garrity Rule. The Garrity rule governs internal investigations for specific governmental employees; under the Garrity rule a public employee can be forced to admit criminal activity during a police investigation because they could be disciplined or fired for not speaking. However, those incriminating statements cannot be used in a prosecution of the criminal case. Each state has different laws- some are more favorable to police officers than others. For example in California, the Government Code contains the Peace Officers Bill of Rights which require, among numerous other provisions, that a police officer's interrogation(s) be conducted at a reasonable hour and any off duty officer will be paid for being present at the interview during off duty hours. North Carolina does not have such police friendly legislation as this but the Garrity Rule is still in effect.

In light of recent events in Charlotte, including a Mecklenburg County Police Officer accused of multiple counts of sexual assaults and another police officer facing domestic violence charges, this portion of the Simple Justice Blog gave me thought:

So why are police officers given special treatment? Is a crime by a police officer less of a crime, less harmful, less significant than a crime committed by anyone else? Is the harm to the victim less painful? Is the harm to society less worthy of prosecution? It might well be argued that a crime committed by a cop is more significant, more blameworthy. After all, we give cops an enormous amount of power and authority, and if they can't be trusted to conduct themselves lawfully, it's a far bigger problem than crime in general. If anything, cops should be held to a higher standard of behavior by virtue of their oath and position.

Every state has different protections. I should note that North Carolina does not have the generous statute that California affords police officers. However, it will be an uphill battle for a Charlotte criminal defense attorney to get access to internal investigation records from any police officer investigation. Hypothetically, if a person was facing criminal charges in Mecklenburg County, such as a DWI/DUI, and the arresting police officer was subject to an ongoing internal investigation by Charlotte Mecklenburg Police Department, the criminal defendant wouldn't necessarily have access to police officer statements made during the internal investigation which could potentially reflect a highly compromised investigation.

Driving, Texting and Talking in North Carolina

2010-02-23T19:59:00.001-05:00

Driving, texting and talking has been all over the news lately. South Carolina is following in the footsteps of many states and started the legislative process to ban texting while driving. The City of Clemson recently became the first city in South Carolina to ban texting while driving. Oprah recently had a popular episode on the subject and asked her employees to sign a pledge stating that they would not use cellular phones while driving. Federal employees driving government provided cars are also banned from texting after President Obama signed an executive order in October.

Yesterday the Charlottte Observer reported that North Carolina may try and take the current texting restriction a step further by outlawing the use of cell phones in cars unless the driver uses a hands free device. California has already taken that route- drive down the congested roads of Southern California and you will see a maze of Bluetooth headsets. Charlotte residents appear to support such a law- the Charlotte Observer article cited a WCNC-TV poll that found 47 percent of poll respondents favored a complete ban on cell phone use while 40 percent favored approval of hands free devices only.

Research studies and statistics clearly depict the the dangers of cell phone use. Look for more restrictive laws in the future.

Domestic Violence Education in Classrooms?

2010-02-17T19:59:00.002-05:00

Sometimes you read an article and it leaves you a little bit speechless. This one in the South Carolina Herald did that to me today. Titled 'South Carolina bill meant to raise awareness of dating abuse', this bill would require school districts to have specific dating polices and discipline guidelines for students in grades six through twelve. The measure would require districts to print policies in school handbooks or on the school website. The bill was approved today in a Senate Education subcommittee. The sponsor of the bill, Joan Brady hopes that this bill will raise awareness among young people who live in a state with the eighth highest rate of domestic violence. Brady also wanted to incorporate a dating violence prevention program in the health curriculum, but the state does not have the financial resources.

I will be interested to see how the public responds to this bill.

Concealed Weapon Charge- A Day in Mecklenburg District Court

2010-02-10T07:42:00.003-05:00

I had a very interesting afternoon in court the other day. My client was facing a concealed weapon charge. The issue at trial was whether the gun was actually concealed. Excluding some specific exceptions, a person can be found guilty of carrying a concealed weapon under NC GS 14-269(a) if they carry a pistol or gun concealed on or about their person while off their own premises. A key element at this trial revolved around whether the gun was actually concealed in the vehicle he was riding in. My client had a good result- the judge dismissed the concealed weapon charge at the conclusion of the District Attorney's case. The judge also dismissed the underage consumption of alcohol and marijuana possession charge for lack of sufficient evidence.

I always do my research before trial. If an attorney wants to have a judge rule in favor of their client, the attorney needs to give the judge something to hang their legal ruling on. I found appellate decisions that supported my client's argument that the gun was not concealed but in plain view of someone walking up to the vehicle. Sound strange? A gun in plain view? Well, the policy behind the concealed weapon law is to protect those who don't know a person is carrying a gun. I thought the appellate case NC v. Gainey stated it well:

"The purpose of the statute is to reduce the likelihood a concealed weapon may be resorted to in a fit of anger. In case of an altercation, one who has a pistol concealed will be less likely to act with restraint than if he were unarmed. If both parties are unarmed, bloody noses, black eyes, and torn shirts are the principal dangers which grow out of a fight. If, however, one or each party has a concealed weapon, the result of an altercation may be a funeral and a homicide trial, or two funerals."

Putting this all aside, guns are dangerous. Guns in vehicles- even more dangerous. At the end of the day, however, the state must meet their burden of proving my client's guilt beyond a reasonable doubt. That is the job of every well prepared criminal defense attorney- holding the state to their burden.

Police Questioning- Is That A Skink In Your Pants?

2010-01-31T21:53:00.002-05:00

Confused over what you can and cannot bring on your next plane trip? This news goes a bit beyond the 4 ounce plastic bag rule requirements when you go through airport security. MSNBC reported the story about a German man who was caught by officials when he attempted to smuggle 44 small lizards, (hidden in his underwear, while boarding an international flight in New Zealand. Somehow New Zealand wildlife officials managed to find 44 geckos and skinks (a lizard with no neck and small legs) in a handmade sewn package concealed in his underwear. By the way, lizards and skinks do bite....

Calling the case the most "serious case of its kind detected in New Zealand for a decade or more", Department of Conservation prosecutor sought a deterrent sentence. The judge sentenced the defendant to 14 weeks in jail and a $3450 fine.

Marijuana Possession Case..Up in Smoke?

2010-01-30T10:14:00.001-05:00

I was in court recently waiting for my case to be heard and watched an interesting misdemeanor trial. It was a marijuana possession case where a respected Mecklenburg County defense attorney was contesting the fact that a substance found in a vehicle was actually marijuana. In Mecklenburg County, a substance seized by the police can take a year to be analyzed by the crime lab. There are far too many cases to test every substance seized by the police. In this case, the state prosecutor was relying on the officers training and experience to testify that the substance seized was actually marijuana. Is that enough? A Marijuana Possession Case..Up in Smoke?

Under the evidence code, all evidence introduced at trial must meet foundational requirements. An officer will testify in a marijuana possession case that he/she found a substance believed to be marijuana. However, before this statement is admissible, the witness must convince the court that they have enough experience to testify that the substance is actually marijuana. Recently, there have been a series of cases handed down by the appellate courts finding that an officer's testimony is not enough to prove a substance is actually an illegal substance- Alyson Grine of the UNC school of government does a great job with this summary.

The defendant in the above case was found not guilty. The prosecutions case was also weakened by the fact that the marijuana was found in the backseat of the car and the defendant was the driver.

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

2010-01-25T20:25:00.002-05:00

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!

CMPD DWI Checkpoints

2010-01-15T19:53:00.001-05:00

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.

Jail Time for Prior DWI/DUI Conviction?

2010-01-10T21:18:00.001-05:00

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.

A Sicilian Man's New Year's Resolution

2010-01-06T20:45:00.001-05:00

Too much time with the family this past Christmas and New Year? I saw this article online at msnbc.com and thought I would start the 2010 blog on a lighter note. Are you familiar with the game 'would you rather'? So, would you rather spend New Years Eve with relatives or spend a night in jail? An Italian man chose the latter.

When faced with the task of spending yet another night with family on New Years Eve, this 35 year old man walked himself into the local police department and asked to be arrested, because he did not want to spend New Years Eve with family. The police told him they could not arrest him because they had no reason to believe he had committed a crime. The man then left the police department and immediately went next door to a cigarette shop. He allegedly threatened the store owner with a box cutter while grabbing some food. He then waited for the police to arrive and was arrested.

While family can be challenging at times, this conduct can rise to the legal definition of a robbery in North Carolina with severe punishment and consequences. However, it does reach a new level of what people are willing to do to avoid seeing the in-laws...

Indecent Exposure: Is it a Crime to be Naked at Home?

2009-12-21T20:33:00.001-05:00

A very serious crime in North Carolina is indecent exposure. To prove a basic misdemeanor charge of indecent exposure in North Carolina, the state must show that a person willfully exposed his/her private parts in a public place while in the presence of another person. I won't go into all the legal definitions of private parts, but I can write that courts have ruled that buttocks are not necessarily a 'private part' (however, I don't encourage anyone to go on a mooning expedition to test the law) and a woman breastfeeding in public is not a violation. The law is very fact specific. This recent story from Fairfax, Virginia caught my eye; a man was convicted of indecent exposure because he was found walking around his house naked and people saw him through his window. Click here for a link to the story. So, looking at the crime of indecent exposure- is it a crime to be naked at home?

In this story, the defendant Erick Williamson stated that he simply was exercising a "personal freedom" by walking around his house naked. Witnesses for the prosecution stated that he would pose in front of doorways when people walked by. It poses (excuse the pun..) a very interesting legal question of what constitutes a public place. Mr. Williamson's conviction will certainly be appealed. We might also see the Virginia law amended to clarify what constitutes a public place.

In North Carolina, courts have found that a public place is a place distinguishable from a private place, but not necessarily a place devoted solely to the use of the public. Factually speaking, courts have found that a car in a public parking lot is a public place and a creek embankment adjacent to a backyard was public in nature.

On a side note, you might be surprised to know that it wasn't until 2005 that North Carolina amended the indecent exposure statute to include people of the same sex. Prior to 2005, the exposure of private parts had to occur in the presence of a person of the opposite sex to be a violation.

Domestic Violence: Is There A Double Standard?

2009-12-05T08:36:00.001-05:00

A famous golfer's early morning car crash and alleged argument with his wife has reignited conversation about domestic violence. We'll probably never know what happened in the Florida house that night and many will argue over whether the matter should remain private, but what it has initiated is the issue of domestic violence and whether there is a double standard.

A commentator on Larry King last night stated that if Tiger Woods had been alleged to assault his wife and she was the driver in the car, the Florida Highway Patrol would have conducted a very different investigation. The same controversy exists in noteworthy cases of school teachers. Is there more public outrage when it is a male teacher and female student vs. a female teacher and male student? Reverse the gender roles in the Tiger Woods scenario- would your opinion change?

Many times as a prosecutor I was in charge of what they called 'in custody filings'- those who had been arrested within the last 24 hours were being held in custody. Starting at 7:30 a.m. every morning police departments would bring police reports to the office asking for criminal charges to be filed. I would review the reports and decide whether to proceed with the case. If I chose to reject the case, the person was released from custody. Mecklenburg County has a different filing system which I don't believe is as effective as this. However, that is a blog post for another time..

In this case, the police had arrested a female who was more than 9 months pregnant- she was literally ready to give birth at any moment and was being held downstairs in the jail. The previous night, the police had been called to a local park by a 911 call made by a male on a cell phone. The male was married to the pregnant woman and they had been alleged to have had marital problems. He had asked his wife to meet her at the park to talk. Husband proceeded to tell her that he had met someone else and was leaving her. She allegedly slapped him in the face a few times. Husband calls 911.

I chose not to file this case and directed the jail to release her immediately. This case ignited an early morning discussion among prosecutors in the office and the issue of reverse domestic violence- that is what female on male domestic violence is sometimes called. I chose not to file the case for several reasons. First, it was a 'one on one case with no corroboration' (he said/she said). I don't recall the police interviewing the woman and obtaining any incriminating statements, husband did not have any injuries and there were no other witnesses to the crime. At trial, the wife could very well testify that husband came after her first and she defended herself. A prosecutor's case should have a substantial likelihood of success of conviction at trial before they proceed with the case. This case did not meet that standard. Finally, a prosecutor must convince 12 members of the community to find this woman guilty of the crime of assault and battery on her husband. The general consensus in the office was that no jury would convict a pregnant woman of slapping her husband after being told he is leaving her and her child for another woman.

Now, change the facts and gender- wife recently has child and is not happy in her marriage. Wife tells husband she is leaving him for another man and he subsequently slaps her. Do you feel different about the case?

North Carolina Shoplifting: An Unlikely and Unexpected Defendant

2009-12-02T06:12:00.070-05:00

I was in court yesterday handling a traffic ticket for a client who had failed to appear on her court date and saw a shoplifting case with an unlikely and unexpected defendant. As attorneys wait for their cases to be called, one often overhears the current case being addressed in open court. I was in a courtroom where the majority of cases were shoplifting related. In North Carolina, this crime can be called shoplifting, unlawful concealment, possession of stolen merchandise, or embezzlement. For information about the law surrounding this and the differences, click here.

The particular case that caught my attention was a 70+ year old woman who had stolen food from three different grocery stores within a one month time period. This woman had only been in trouble once before her entire life- she bounced a check. The law calls that insufficient funds, uttering forged paper, or uttering worthless checks. The state must show that you wrote a check and you knew you didn't have enough money to cover it. Technology has made this crime more difficult - I believe larger stores have instant access to your available funds when you write a check. Anyway, I found this case sad for a variety of reasons. The judge sentenced her to several requirements including supervised probation (meaning she will have to report to a probation officer) and 60 days of suspended jail time. I should mention that when a person admits guilt or pleas guilty to an offense in North Carolina, the state will provide the judge with facts surrounding the crime, any prior criminal history, and other information the state deems relevant. Many times the police officer or witnesses to the crime will be present to provide such facts.

What struck me was that no one addressed the core issue surrounding why a 70 year old woman, who has basically led a crime free life, was suddenly stealing food. Her daughter was in court, crying, shocked to see her mother accused of a crime and subsequently admitting to the crime. The case left me with many unanswered questions and thoughts.

For some interesting statistics surrounding shoplifting, the impact it has on society, and general information, go to the National Association for Shoplifting Prevention or click here. Here are some statistics from the website: Several studies show that depression exists in 1/3 of shoplifters. Men and women shoplift in equal numbers. Shoplifters don't plan their crimes: 73 percent of adults and 73 percent of juveniles don't plan to steal in advance. According to the website most shoplifters are "non-professionals" who steal, not out of criminal intent, financial need or greed but as a response to social and personal pressures in life. One of the more alarming statistics: studies show that 1 in 11 Americans shoplift. As a result, it is one of the most common crimes in our country causing up to 35 million dollars in losses per day. This is an issue that needs to be properly addressed- however is sending a 70 year old women to jail the best path to follow?

Fortunately, in North Carolina there are programs that address this issue. In Mecklenburg County, specific classes are sometimes offered to those who have been accused of shoplifting. Upon successful completion of the class, the case can be dismissed. However, every case is different and it is within the discretion of the District Attorney to decide whether they offer this to the accused. Therefore, it is important to discuss any shoplifting, theft, or unlawful concealment case with an attorney, A shoplifting conviction will follow you through your entire life and make it extremely difficult to get a job, get into school or even rent an apartment.

Texting While Driving- Illegal in North Carolina

2009-11-28T16:04:00.003-05:00

Texting while driving will soon be illegal in North Carolina. The statewide ban on texting while driving officially goes into effect in North Carolina on December 1st. I wrote a blog last August when the law was originally passed addressing how the law was well intended, but poorly thought out. Here is the link to my post "Do U Like 2 Text?"

If found guilty of this offense, you can be fined $100 plus court costs.

DWI/DUI Breathalyzer- A NC Christmas Gift

2009-11-26T11:14:00.003-05:00

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.

DWI/DUI Cases: A Former Prosecutor's Perspective

2009-11-22T19:26:00.001-05:00

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.

North Carolina Expungement for a Job Seeker

2009-11-14T10:26:00.006-05:00

Are you a job seeker in North Carolina? You may need to get a North Carolina Expungement.

There was an interesting article in the Wall Street Journal about the affect of a criminal conviction on a job seeker in the current job market. With the rise of unemployment figures and the economy in midst of recovering from a deep recession, those with a criminal past are finding it harder to get a job. The article quotes a director of a liquor company in Florida; "If I have a guy with four arrests and bad credit versus someone who has never been in trouble in his life, who am I going to hire? It's not rocket science." In Florida, expungements rose 43% from the previous year. With unemployment levels currently over 10%, employers can be picky. Technology and the internet have made a person's criminal past much easier to access than 10 years ago. For a fee of ten dollars, a company can use an internet service to obtain information on a potential employee. The WSJ found that 80% of companies performed background checks in 2006, compared to fewer than 50% in 1998. Even more alarming, I have personally received several phone calls from previous clients who had their criminal case dismissed in Mecklenburg County now unable to rent an apartment in North Carolina after having their lease application rejected. Leasing companies are now running background checks on potential tenants.

An expungement basically erases your criminal past. North Carolina has very strict rules regarding whether a person qualifies for an expungement. Generally speaking, if you were found not guilty or the charges were dismissed, you most likely qualify for an expungement. There are different rules if you were under 18 years of age. The good news is that in North Carolina, once the expungement process is successfully completed, it is completely erased. If you have questions regarding the expungement process in North Carolina, contact the Law Office of Carilyn Ibsen PLLC for help.

Here is the link to the WSJ article: http://online.wsj.com/article/SB125789494126242343.html

Arrested for DWI, What about My Miranda Rights?

2009-11-08T15:48:00.001-05:00

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...