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Wednesday, April 15, 2015

Changes to the DWI Law - Interlockapocalypse

So, as I try and keep up with proposed changes to North Carolina Criminal and Traffic laws, we are seeing some interesting changes coming up that could be another burden to those facing the daunting effects of a DWI conviction.  One of the biggest changes being proposed is requiring an Interlock Device for anyone convicted of a DWI, regardless of their Breath/Alcohol Concentration.

Let me explain, as it stands right now, anyone facing a DWI conviction who's BAC is a .14 or below does not have to have an Interlock Device installed on their vehicle as a part of their sentence.  Those convicted with a .15 or above BAC are required to have one installed for one year.  The changes being proposed would require the Interlock for all Impaired Offense charges (DWI and Driving After Consuming - the 'Baby DWI') regardless of your BAC, your history, or facts, etc. 

You would think something as drastic as the headache of an Interlock Device for a year would be something maybe left to the discretion of the Judge.  However, like most everything else regarding North Carolina Driving While Impaired charges, the Legislator has taken all deference out of the hands of the Judge and limited them to sentence according to very specific structured sentencing. 

So, what's the big deal, you might ask.  Interlocks seems like a sensible requirement for someone convicted of DUI.  First, Interlocks are expensive, there is initial installation costs, monthly maintenance costs, and then any problems with the device requires paying for appointments to have the machines checked.  On top of that, a part of the new changes to the laws being proposed would be an 'administrative fee' of up to $150 at the time of the installation.  This 'Administrative Fee' is given to the State, so you can see the incentive driving this push for every DWI conviction to require an Interlock Device installed.

On top of the financial burdens, the reasoning by which the proponents of this change are arguing its necessity (because saying "it will make the State more money" doesn't make a good sound bite) is the deaths caused by DWI's in North Carolina.  The problem with this argument is the Interlock device does, in my humble opinion, almost nothing to address the motor vehicle deaths occurring in NC as a result of DWI's; let me explain.  First, the Interlock Device is only required for a one year period after the DWI conviction.  This typically occurs immediately after the conviction, therefore the Interlock Device is only stopping someone from driving with alcohol in their system within one year from the date they were convicted of a DWI.  I can tell you that most of my DWI clients would rather cut off their right hand then deal with the headaches that come with a DWI, even without an Interlock Device requirement.  Even though most people convicted of a DWI are never repeat offenders, those that are, rarely repeat within one year of their conviction.

Second, if this is to serve as a deterrent to those who may Driving Under the Influence in North Carolina, understand there are PLENTY of other consequences that should already be deterrent enough.  A DWI conviction in North Carolina will cost a driver no less then $500-$1000 out of pocket; not including attorney's fees (my cost for a low-level DWI is $1800) or insurance costs (they can go up by 400% for three years).  Add to that an initial 30 day suspension period for the charge, a one year suspension for conviction, Substance Abuse Assessment and the headache of a Limited Driving Privilege, and you'll see how quickly it all adds up.  Finally, understand that there are two circumstances under which a first time DWI offender could face jail time, regardless of their record.  With all of that, people still drive drunk; the addition of the Interlock Device is not much more of a deterrent then what we already have.  The fact is, it is not that we need more punishment on the books, it's that we need more education to the public. 

So, be on the look out, cause this will likely pass. 

Wednesday, January 14, 2015

The Problem with the DWI Caseload in Wake County

Recently, there have been several articles in local new papers addressing the issues the Wake County Courthouse faces addressing an influx of DWI cases.  There have been Federal Grants awarded to local Law Enforcement to up their DWI investigation efforts.  This includes additional officers, along with more check points and heavier presence on the roads during peak DWI periods. 

The issue addressed in these articles is the fact that with increase police efforts towards DWI detection and arrest, comes increase load on the Wake County Justice Center.  The Criminal Courthouse here in Wake county is already heavily overburdened.  Some of this has been caused by these Federal Grants, others are more innocuous, we have a blooming population and at the same time, financial resources at the Wake County Justice Center are willfully inadequate.  District Attorneys are not paid well to begin with and are a part of the Government employees who have seen little to no increase to their salary in the past few years (the same holds true for the Public Defenders Office, which is a wholly different discussion).  Additionally, cuts have been made to support staff in the D.A. Office as a result of the funding limitations.  As a Raleigh Criminal Attorney, I am appalled at the treatment of these civil servants and will be the first to say that these individuals are inadequately paid for their efforts and dedication to the office.

And that is where these articles end up, the court system needs more money to handle these higher case volumes, however I respectfully disagree.  While more funding may allow for additional DWI-dedicated Assistant District Attorneys, Clerks and Judges, it would not be enough to fully mitigate the struggles all of us are dealing with at the court house.  You see, while another DWI courtroom may provide some relief, it will always be limited by the fact that, while an individual officer may issue a hundred or more DWI's in a year, they can only testify at one trial at a time.  A DWI trial on the best of days will take at least an hour or so.  Typically they are closer to two or more.  The more complex can take several hours or more, and all of this is in District Court.  For a DWI trial in Superior Court, where a Jury is convened, a typical DWI will take a full day.  So, no matter how many DWI dedicated courtrooms there may be, those that are called for trial are handled one at a time.

In one article, it mentions that for the current fiscal year in Wake County, it is estimated that there will be 7000 DWI citations issued.  Even if only half of these cases are called for trial, they will not all be reached in a timely manner.  Let's do the math, there is roughly 250 working days in a year, if only half were all called for trial during that year, it would require the court to resolve 14 cases a day.  Given that there are presently 6 courtrooms that theoretically handle District Court matters, they would need to resolve a little more then 2 cases per courtroom, per day.  And while that may seem feasilble, the reality is that would be doing little else other then DWI trials in all of the courtrooms to pull this off, which obviously is not feasible.

Which brings me to the point of this post.  North Carolina is one of the toughest State's to receive a DWI charge in.  The law as it is written, has absolutely not option for the State to offer an offender something less then a DWI conviction in a plea deal.  Certainly one can envision circumstances where someone may receive a DWI that may deserve an outcome that is less serious then a DWI conviction.  I would think low-level BAC (say a .09 or below) with no injury and no prior alcohol-related offenses could opt for a program, where perhaps they complete a number of community service hours, and/or pay a heft fine, for the opportunity to avoid a DWI conviction.  See, as the law is currently written, the aforementioned set of facts is treated equally for conviction purposes as someone with much more serious set of facts.  And while a DWI conviction does have standards for sentencing purposes to distinguish from the most egregious to the less, the fact remains that these drivers are still facing a DWI conviction.    This is why many DWI clients elect to try their case instead of pleading it, there is no incentive for them to not take a 'bite at the apple.'

DWI's are extremely complicated and so are the politics that surround them.  That being said, the problem is not going away and it's not getting better.  Something needs to be done to serious address this problem at the courthouse and a solution that can help those who very benign facts deserve a better opportunity to avoid a DWI conviction short of trial.

Monday, January 5, 2015

Preconceptions about DWI's

So I received a call over the weekend that, though was not that uncommon for me, is probably shocking to the majority of you all.  A husband was calling for a Raleigh DWI Attorney for his wife who was charged with a DWI over the weekend.  She was involved in a fender-bender in a parking lot.  Both his wife and the driver of the other vehicle agreed there was no damage and no need to involve the police.  Regardless, the police showed up and ultimately charged this young lady with a DWI.  What is surprising is the fact that she had a Breath-Alcohol Concentration of .06.  Now, in all fairness, I haven't seen the police report yet, so there could be factors unknown to me that would cause the police to charge her with such a low BAC, but the reality is, whether there is or is not, this type of situation does happen, a lot.

You see, most people believe that only if you have a BAC of .08 or more, you will not receive a DWI charge in North Carolina.  While the statute does state that a Defendant can be convicted with a BAC of .08, that is only half of the statute when it comes to impairment.  You see, the statute allows for a conviction based on 'Appreciable Impairment.'  Now, appreciable impairment is in place for those that may be impaired by something other then alcohol that may be hard to quantify to demonstrate it's impairing effects; like marijuana, cocaine, oxycodone, etc. 

There are two problems with appreciable impairment; 1. it is a subjective concept to operate at the whim of the investigating officer and 2. it is used too often for alcohol related DWI's where the BAC was below a .08.  Now, don't get me wrong, I understand the purpose of appreciable impairment.  Proving impairment can be difficult without some test that supposedly gives a definitive level when someone is impaired or not (like a BAC of .08).  But the reality is that too much deference is given to the officers in a lot of these cases where reasonable doubt should prevail. Worse though, is when an officer has a case with a low BAC, instead of letting common sense prevail, their go to is to charge.

I've heard from many clients (and officers as well) that Officers indicate some doubt they have as to the probability the defendant is guilty of the alleged crime, but elect to charge them anyways and 'let the court sort it out.'  As if that will be an easy function for a Defendant to handle.  The reality is, even a perfectly innocent person charged with a crime is going to have, at a minimum, a severe interruption to their life by having to go to court and try and convince someone of their innocence, and at worse, pay thousands of dollars to an attorney to see the case is dismissed.  Worse still, what if the Defendant was arrested, now their mug shot is public record and WILL show up on line.  Add to all of this that it will likely take multiple court visits to clear this matter up and you can start to see what a headache this can be.  And for those who are charged with a DWI that probably shouldn't have been, they will face a 30 day license suspension just for having been CHARGED with the crime (as in, NOT convicted yet), plus a $100 civil revocation fee. 

This idea that the officer believes they don't have a case but elect to charge an individual anyways is ludiciris.  Officers are the first gatekeepers in our justice system and it is not their duty to 'pass the buck' as it were.  If they have serious doubts about the guilt of the Defendant, they need to let the Defendant go.  In a case where someone is charged with a DWI with a .06 BAC, there is absolutely no reason to proceed with charging them beyond some serious exigent circumstances.  Perhaps that was the situation in this case.  Perhaps this woman was under the influence of something other then alcohol.  But I have seen these type of cases enough to know that it is likely the officer got certain the Defendant was driving while impaired and he wasn't going to let some little matter like a low BAC get in his way.

The point of the story is, understand that even perfectly innocent people get charged with a crime, so be careful out there and know your rights!

Monday, December 15, 2014

Why There are Plenty of Laws for DWI's in NC

When the topic of DWI's comes up in any social setting, a typical opinion I hear is that these individuals need to be punished severely because they risk everyone's lives.  While this statement is not wholeheartly incorrect, I believe the convictions need to be tempered. 

You see, first and foremost, it is extremely unpopular to be 'pro-DWI' and certainly that is not the position I am taking.  DWI's are serious and in some cases very dangerous matters.  So people (and unfortunately Legislators) are very reluctant to take a reasonable approach to the discussion of DWI penalties for fear as being seen as 'soft on crime.' 

On our website, you can find a run down of North Carolina DWI Sentencing, considered by many one of the most serious in America.  The penalties for even First Time Offenders and/or low Blood/Alcohol Concentrations are serious at the minimum and borderline ridiculous at the maximum.  Aside from a loss of your license for a year, court costs, fines, and some type of probationary sentence, you run the risk of a potential active sentence (i.e. jail time) all this along with a 400% increase to your insurance and the stigma that comes with a DWI conviction.  Add to this the fact that there are NO first-time offender options or programs where someone with a benign set of facts, having never been in trouble before may be able to earn the right to avoid a DWI conviction like many other States have.

Most people believe these type of penalties are necessary to deal with what could have happened on that fateful day.  The reality is, in North Carolina, we already have laws to handle those cases where people's fears are actually warranted.  North Carolina has Felony laws that pertain to accidents involving Driving While Impaired where someone else was injured or killed: Felony Serious Injury by Vehicle (Class F Felony), Felony Aggravated Serious Injury by Vehicle (Class E Felony), and Felony Death by Motor Vehicle (Class D Felony).  These laws have the potential of sentencing someone to a few months in jail up to 105 months in prison. 

My point is, we are punishing people for the crime that could have happened and not what actually happened.  Most DWI cases involve no accident, no injury, just a driver stopped for some reason that is found to be above the legal limit.  I am fully aware that these laws are written under the premise that they are to serve as a deterrent to those who may consider driving drunk, but I find that argument not fully persuasive.  True, criminal laws are part deterrent, part punishment, the deterrent part does NO good if no one is aware of them.  I can honestly say that well over 90% of my clients had no idea the severity of their actions and had they, they would not have chosen to drive home that night.  Perhaps more effort could be put into educating the public and less on punishing the unknowing public for actions that, while have the RISK of injuries to others, in most cases do no harm to anyone.

Again, I am no advocating against DWI Laws, I am simply requesting that common sense be applied to the laws.  How many of the Thousand upon Thousands of people charged with DWI's in North Carolina would jump at the opportunity to avoid a DWI Conviction upon completion of Substance Abuse Treatment, Community Service and Outreach programs?  Stand on a corner with a sign warning of the dangers, hand out pamphlets at local bars, pay a large fine that goes exclusively to a State Sponsored Designated Driver/Taxi Service?  If we truly want to reduce drunk drivers on the road, over-punishing those who commit the crime is less effective in my humble opinion then additional community out reach and education.

Wednesday, August 14, 2013

North Carolina DWI Law | Bumcombe County DWI Repeat Offender

So recently, I read an article about a driver in Buncombe County who was recently convicted of his 17th DWI and was sentenced to 7 years in prison.  Now, while many of you may expect it, this Raleigh DWI Attorney is not coming to the defense of the repeat offender and the harsh sentence he has received.  Given the number of times he has been convicted, I honestly don't believe 7 years is necessarily inappropriate. 

What bothered me more about this article was the quote from the District Attorney for that county, Ron Moore.  He stated "In North Carolina for a first offense you don't serve a minute in jail.  You generally get a 60-day suspended sentence.  You can get a limited driving privilege, and you have to do 24 hours of community service.  There is not a lot of deterrent value.  If you had to spend a week in jail, then maybe it would deter you from that behavior." 

This idea that North Carolina is somehow 'light' on DWI charges is ridiculous.  North Carolina has very serious sentences for DWI convictions, including first offenders.  Where before in North Carolina, as well as presently in other states, certain first offenders may be eligible for a reduction to a 'Careless and Reckless' charge, or to participate in some type of 'First-Offenders DWI' Program where the charges would be reduced upon successful completion.  But not in present day North Carolina.  No, if you are charged with a DWI, it has been the experience of this Wake County DUI Attorney that there are no opportunities for a reduction of the charge.  In fact, your only chance of avoiding a DWI conviction is by winning at trial. 

Also, the statements by District Attorney Moore over simplifies the reality of a DWI conviction.  First, he is describing a Level 5 Sentence, which is the lowest possible sentence a Driver can receive for a DWI conviction in North Carolina.  Depending on Aggravating and Grossly Aggravating Factors, a Driver can face a much more serious sentence then just 24 hours of community service.  Even at a Level 5, a Defendant can expect to pay between $500-$700 in court costs and fines at the time of conviction, which does not include the 400% increase to the insurance premium for the next three years and any costs you incurred immediately after the arrest, including the cost of hiring an attorney.  Additionally, all DWI convictions in North Carolina carry with it mandatory Substance Abuse Assessment and follow up treatment so Driver's are learning the risks of substance abuse. 

In addition, a Limited Driving Privilege is no small slap on the wrist.  The driver is limited to driving Monday - Friday from 6:00 am to 8:00 PM for 'work, school or household needs.'  Now, there is some debate about what constitutes 'household needs' but some Police Officers may feel that a Driver out during those times, who isn't specifically driving for the benefit of his or her household is in violation of the privilege, which could lead to a revocation.  Additionally, should a driver have a blood/alcohol concentration of .15 or above in North Carolina, they will not be eligible for a Limited Driving Privilege for the first 45 days after being convicted and are required to have an Interlock Device installed on the vehicle for one year, all at the cost to the Defendant.  Imagine your life if you were not able to drive for a week, let alone a month and a half?!

Now, I'm sure some people think that I am minimizing the risks of Driving While Impaired, I can assure you I am not.  Driving drunk is risky and endangers the lives of the Driver, their passengers, as well as the public in general.  However, DWI's have gotten so built up that we are sentencing people for the damage they could have done, not what they actually did!

Rest assured, if a Drunk Driver causes a wreck, it will be factored into their sentencing so they can receive a harsher sentence then if they hadn't gotten in a wreck.  Caused serious bodily injury?  That's a Grossly Aggravating Factor and would be a minimum, mandatory 7 days in jail.  Prior DWI in the last 7 years?  Same thing.  Passenger in the vehicle under the age of 18?  Level 1, minimum, mandatory 30 days in jail!  That means if you are a first time offender, with a BAC of .08 and a 17 year old in the car (think about high schoolers coming home from a party or prom) and they are convicted, 30 days in jail. 

It's craziness to me that DWI's are treated this way.  The fact that the Defendant is participating in a risky activity results in a sentence that would appear to address the potential  harm, instead of the actual harm caused.  Let's think of this in another way.  North Carolina has passed laws against texting while driving.  Some cities have even passed laws against using phones all together.  There are those who believe that the use of a cell phone while driving is as dangerous as driving while impaired.  Certainly there are plenty of stories out there about people who have been injured or killed because of someone texting or driving.  Should we treat those who were caught texting and driving as harshly as those who have killed while texting and driving?  Of course not, the punishment wouldn't fit the crime.

Here's another way to think of this.  I have a client who was associated with a fight in school.  One of the young boys broke the eye socket of another boy during the fight.  That young boy was charged with Assault and Battery.  Having never been in trouble before, will have his case dismissed after he participated in a First Offender's program, which includes community service and classes.  There will be no monetary costs that he will incur from the criminal charge.  However, most of my clients are first offenders, and many of those are low BAC DWI's who did not injure anyone at all and will have their life seriously disrupted, incur thousands of dollars in costs (once you add up court costs, legal fees, and insurance costs) and have their ability to drive restricted for the next year.  How is this fair?  If we take the DWI sentencing logic and apply it the fight, the boy should face a sentence that reflects the injury he could have cause as a result of the fight.  The boy could have suffered brain injury or even death, so let's treat this case the same as if it did occur?

Okay, I think I have been up on my Soapbox long enough.  Let me say again, I don't advocate Driving While Impaired or even think that people shouldn't face some of the consequences, but for a District Attorney to suggest that every single first-time offender of a Class 1 Misdemeanor should face a mandatory 7 day jail sentence is ludicrous.  I think common sense needs to prevail and be applied to these cases.  As it were, due to special interest groups (M.A.D.D. I'm looking at you), there is little chance that will ever happen.