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Monday, December 5, 2011

North Carolina DWI Law | What Factors are Considered for a DWI Sentence

Since this Raleigh DWI Attorney Blog deals with all facets of a North Carolina DWI Defense, in addition to the greater area of North Carolina Criminal Defense, it only makes sense that we review the factors which the court considers when setting a DWI Defendant's sentence.

In a previous post I reviewed North Carolina DWI Sentence Structure this article will be dedicated to explaining the three factors which the Judge considers for the purposes of setting a DWI Defendant's sentence within North Carolina DWI Sentencing Structure.

To start with, this blog will discuss Aggravating Factors and Mitigating Factors. These two factors are used when a Judge is considering setting a Defendant's sentence at a level 3, 4 or 5. That's not to say that these 'factors' can't be considered when setting a sentence at level 2, 1, or aggravated level 1, but these are set statutorily for the Judge to use for the purpose of setting sentences within level 3, 4, and 5. For these three levels, if a Defendant's aggravating factors greatly outweigh their mitigating factors, they are set at a level 3. If these two levels are even, the Defendant is set at a level 4. If the Defendant's mitigating factors greatly outweigh the aggravating factors, they are set at a level 5.

Aggravating Factors include: conviction of a prior DWI more than 7 years before the instant offense, two or more prior convictions for 3-point driving offenses within the preceding 5 years before the offense, gross impairment (.15 or above), especially reckless or dangerous driving, negligent driving leading to a reportable accident, passing a stopped school bus, conviction of speeding to elude apprehension, conviction of speeding at least 30 miles over the legal limit, or any other factor that aggravates the seriousness of the offense.

Mitigating factors include: voluntary submission to a Substance Abuse Assessment and participation in the recommended treatment, slight impairment (.09 or less), safe and lawful driving at the time of the offense, impairment which was caused by lawfully prescribed drugs within prescribed dosage, a statutorily safe driving record (no offense for which at least 4 points are assigned within 5 years of the date of the offense), or any other factor that mitigates the seriousness of the offense.

The other factor which is used by the court is referred to as Grossly Aggravating Factors. If any of these factors apply, then the Defendant is facing a DWI Sentence of Levels 2, 1 or Aggravated Level 1 (for stops from December 1, 2011 on). If the Defendant only has one Grossly Aggravating Factor, they will be sentenced at a level 2, if there are 2 Grossly aggravating Factors, the Defendant will be sentenced to a Level 1. If there are three or more Grossly Aggravating Factors and the Defendant was stopped prior to December 1, 2011, they will be sentenced to Level 1, but if the Driver was stopped December 1 or there after, they will be sentenced at the Aggravated Level 1.

Grossly Aggravating Factors include: a Driving While License Revoked charge at the time of the current charge and where the license was suspended for a prior DWI, serious injury to another caused by the Defendant's impaired driving, a prior DWI conviction within the preceding 7 years, and having a child under 16 years of age in the vehicle at the time of the offense (as of December 1, the age is moved to passengers under 18 years old).

For a review of each North Carolina DWI Sentence Level, click on North Carolina DWI Sentence Structure.

Friday, December 2, 2011

Laura's Law Takes Affect | A Review of North Carolina's Sentencing Structure

Since this is a blog about North Carolina DWI Defense, written by a Raleigh DWI Attorney it would only make sense that I review North Carolina's Sentencing Structure. This is additionally important because, as of yesterday, North Carolina DWI Sentencing Structure has changed. I have previously written about Laura’s Law which not only adds a new, more serious sentencing level to North Carolina DWI Law, but also made a change to one of the factors which are presented by the North Carolina Assistant District Attorney, and will impact which level a Defendant will be sentenced.

Though this post will not address the three factors which determine where a Defendant will fall in North Carolina's DWI Sentencing Structure (a future post will cover them), quickly they are referred to as Mitigating Factors, Aggravating Factors, and Grossly aggravating Factors.

As of yesterday,December 1, 2011, North Carolina now has six sentencing levels for a Defendant convicted of Driving While Intoxicated. The breakdown for each is as follows:

Level 5 carries with it a fine up to $200, imprisonment for 24 hours to 60 days. If the sentence is suspended, the Judge must impose either 24 hours in jail or 24 hours of community service (or a combination of both).
- In order to be sentenced at a Level 5, the Defendant's Mitigating Factors must outweigh their Aggravating Factors and cannot have any Grossly Aggravating Factors.

Level 4 carries with it a fine up to $500, imprisonment for 48 hours to 120 days. If the sentence is suspended, the Judge must impose either 48 hours in jail or 48 hours of community service (or a combination of both).
- In order to be sentenced at a Level 4, the Defendant's Mitigating Factors must equal their Aggravating Factors and cannot have any Grossly Aggravating Factors.

Level 3 carries with it a fine up to $1,000, imprisonment for 72 hours to 6 months. If the sentence is suspended, the Judge must impose either 72 hours in jail or 72 hours of community service (or a combination of both).
- In order to be sentenced at a Level 3, the Defendant's Mitigating Factors must be outweighed by their Aggravating Factors and cannot have any Grossly Aggravating Factors.

Level 2 carries with it a fine up to $2,000, imprisonment for 7 days to 12 months. If the sentence is suspended, the judge must impose an active term of at least 7 days.
- In order to be sentenced at a level 2, the Defendant must have no more than 1 Grossly Aggravating Factors.

Level 1 carries with it a fine up to $4,000, imprisonment for 30 days to 24 months. If the sentence is suspended, the judge must impose an active term of at least 30 days.
- In order to be sentenced at a Level 1, the Defendant must have 2 Grossly Aggravating Factors.

Aggravated Level 1 carries with it a fine up to $10,000, imprisonment for 12 months to 36 months. Additionally, if the sentence is suspended, the Judge must impose an active term of at least 120 days and will not be eligible for early release from any jail sentence sooner then 4 months before the maximum range that the Defendant was sentenced. During those 4 months from release, the Defendant must not consume any alcohol and is required to wear an alcohol monitoring devise, paid for by the Defendant.

As you can see, any conviction of of a DWI in North Carolina, carries with it serious ramifications, those in the upper ranges can face jail time and serious fines. This is why a DWI should never be handled pro se (Defending yourself), rather you should hire a qualified DWI Defense Attorney to handle your case.

Thursday, November 17, 2011

What Not to Say in the Courtroom

This morning I was in Criminal Court in Durham, North Carolina and observed something that I have seen many times and decided to write an blog about it. I heard a criminal defendant, represented by a Criminal Defense Attorney speak directly to the Judge when he was addressing counsel. And before that, I observed a young law student who was in court on a misdemeanor larceny first-time offenders program try and talk his way out of having his status in the program revoked and face the original larceny charge. As a Raleigh Criminal Lawyer, Raleigh Traffic Attorney and a Raleigh DWI Attorney practicing in Durham, North Carolina and Raleigh, North Carolina, and formerly an Assistant District Attorney in Harnett County, North Carolina I have seen many Defendants speak up when they shouldn't have. Below, this article will stress why it is important to limit what you say and/or hire an attorney to speak for you.

The first incident that I saw today, where the Defendant spoke directly to the Judge was met immediately by an admonishment by the Judge. The Judge explained that she was represented by a quality Durham Criminal Attorney from the Public Defender's Office and should let her attorney do all the speaking for her. Afterwards, I observed the Public Defender express the same to the Defendant. She explained to the Defendant to not speak in court unless directly spoken to. I know this may sound belittling, and somewhat parent/childish, but it's true. Attorneys go through three years of law school, incur HUGE amounts of student loans, and ultimately face the bar exam to learn the law and learn how to be a lawyer. One of the many skill sets that attorneys learn is what should be said in court and what should not. If you have an attorney representing you in court, whether it's a Criminal Case, DWI Case, or a Traffic Case, let the Attorney do all the speaking for you, unless the agree that it is okay for you to speak up or you are called to testify.

This brings me to my second point. If you are facing a Criminal Charge, DWI Charge, or a Traffic Charge you should always try and find a way to have an attorney at your side to represent you. Whether you request the court to appoint you an attorney, you ask an attorney who is your friend to help, or you hire a private criminal attorney, you need their expertise in making it through the case. Now, I'm not saying that there have not been successful Pro Se Defendants (that is the term used for Defendants who represent themselves). There have been successful cases, as an Assistant District Attorney, I observed a Defendant get a not guilty verdict in an assault case brought by the Defendant's Dad. But, if you are playing the percentages, you have a MUCH greater chance of being successful, and not making a mistake, if you have an attorney at your side. The young man today who was representing himself was saved when a local attorney stepped in and assisted him, for free. See, not all attorneys are blood-suckers!

Friday, November 4, 2011

North Carolina DWI: The Role of the Assistant District Attorney

Today's Raleigh DWI Attorney blog is going to deal with the roll of the Assistant District Attorneys in the prosecution of Criminal Defendants.  Though today's Raleigh DWI Attorney blog deals in the area of Driving While Intoxicated, this blog applies to all criminal prosecution; including traffic. 

First, don't think this blog will be used to bash those who are Assistant District Attorneys.  Though I am currently a DWI Lawyer Raleigh and DWI Lawyer Durham, I was actually sworn in as an Assistant District Attorney before and prosecuted cases for the State of North Carolina.  Many fine attorneys have before, and are currently, quality Prosecutors.  I can tell you from experience, the job is hard, tedious, and often thankless.  No, today's blog will be used to advice you as to the roll they play in the prosecution of your case (hint: it's not normally to assist you).

First, a brief explanation of the U.S. Justice System as it applies to courts.  Our trials are what are known as "adversarial proceedings."  Basically, both sides do their best for the side they represent, and through that effort, the truth is suppose to come out.  Basically, the Assistant District Attorney does their best to represent the State by prosecuting criminal defendants to the best of their ability.  Defendant, either by themselves or with the assistance of counsel, present their best defense.  Many people have discussed the flaws inherent in our system, unfortunately this is the system we have to work within.

So, the Assistant District Attorneys are there to prosecute your case.  If you are your attorney's client, then the Assistant District Attorney's client would be the State.  So, when an Assistant District Attorney is dealing with the facts, as well as dealing with Defendants, their main goal is to serve the needs of the State by prosecuting those cases.  For that reason, the Assistant District Attorney IS NOT normally working in your best interest.  Now, as a caveat, I will acknowledge that certainly there are those Prosecutors who recognize a mistake by the State, and will work to overcome it.  If the evidence is poor, the arrest is flawed, or the case is meritless, the Assistant District Attorney should do what is right and dismiss the case.  Unfortunately, though the Prosecutor may do the right thing, you cannot count on it when it comes to the defense of your case. 

First, the Defendant should never acknowledge anything to the Assistant District Attorney with regards to the facts of the case.  Again, they are working for the State, so admitting anything can AND WILL come up in trial or at least in their decision in how to handle your case. 

Second, the Assistant District Attorney CAN NOT and WILL NOT provide you with legal advice, so don't ask.  In fact, it would violate Ethical Rules of the North Carolina Bar if they were to advice you.  As mentioned before, they represent the State, they are the adverse party, they cannot advice you as to how to handle your case, whether to accept a plea, or what could happen if you go to trial.  I can recount many-a-times when I was a Prosecutor, where I knew what the Defendant should do, but couldn't tell them.  This is why it is ALWAYS a good idea to speak with a Cary Criminal Attorney, Apex Criminal Attorney, Raleigh Criminal Attorney or Durham Criminal Attorney about your case.  If you are considering representing yourself, consider the fact that most attorney's fees are reasonable when compared to the potential consequences that a Defendant could face.  Though no outcome should ever be guaranteed by a Criminal Defense Attorney, it's always a good idea to hedge your bets. 

Monday, October 31, 2011

North Carolina Limited Driving Privileges| What is Needed for the Petition

In today's DWI Blog, I will be focusing on North Carolina's Limited Driving Privilege.  Though a Limited Driving Privilege applies to more situation then a DWI, today's blog will only focus on it's function in the DWI world.

First, the Petition is just that, a petition.  The Privilege must be agreed to by a District Court Judge, there are no guarantees that you will be given a privilege.  Second, the Privilege is normally only for Monday through Friday, 6:00 A.M. until 8:00 P.M.  If you need to drive outside of those time for school or work, it can be requested with additional documentation.

There are two areas of a DWI case where the Limited Driving Privilege applies, first is after being charged with a DWI, you will have your license suspended for 30 days.  Most likely, the Police Officer took your license.  In those situations the Privilege can not be granted for the first 10 days, therefore if granted, the Privilege will only be for the remaining 20 days.  If convicted of a DWI or if you plead guilty to a DWI, you will have your license suspended for 12 months.  Depending on how high your blood/alcohol level was at the time of your arrest will dictate when you can petition the court for a Limited Driving Privilege for those 12 months.  The petition requires several things before a Judge will consider it.  Below, I have listed those things that are necessary.

1. A certified 7-year driving record from the DMV
2. A Limited Driving Privilege Petition (Form AOC-CVR-9)
3. Fully completed Limited Driving Privileges (Form AOC-CVR-10 or AOC-CVR-11) (3 copies of each)
4. Valid proof of driving insurance (called a 'DL-123 form')
5. Proof of Substance Abuse Assessment
6. Letter from an employer or school if requesting more time outside of the standard hours.
7. $100 cost for the privilege.

This process can seem a bit complicated, but it can be done.  If you feel overwhelmed, speak with a local Durham DWI Attorney or Raleigh DWI Attorney or a DWI Attorney in your area for assistance.  Some may be willing to assist you without handling your DWI case.

Wednesday, October 19, 2011

Driving While License Revoked| The Gift that Keeps Giving (even when you wish it wouldn't)

Okay, so today's blog will deal with the North Carolina charge of Driving While License Revoked.  Though this may seem a bit out of bounds for a Driving While Intoxicated blog, it's not as far off the mark as you may believe.  Let me explain.

A North Carolina DWI Conviction carries with it a one-year suspension of your Driver's License.  If, during that period of suspension, the Defendant is caught driving on a North Carolina street or highway without having a limited driving privilege, they will be charged with Driving While License Revoked.  

So, what is it about this charge that makes it so serious that it warrants it's own blog topic?  Well, there are several reasons why this charge is important.

First, though a Driving While Intoxicated conviction is one way to have your license suspended, there are other ways.   First, if a driver receives 12 or more points on their license in a three-year period, their license will be suspended for a year.  Additionally, should a Defendant not appear in court, or not pay their fines, they risk having their license suspended after a year.  This particular situation can be tricky because, though someone may have simply forgotten about their court date or fines, their suspension will go through with very little notice to them.  In fact, aside from a letter that is sent 20 days after the missed court date or missed payment date, there is no other notice.  Therefore, a Driver can be driving around under the assumption that the License in their possession is valid, only to find that it has been revoked.  In these cases, the 'notice' of revocation always comes about when the Driver receives another ticket, like a registration, seatbelt, speeding, or headlight ticket, and the Officer will also cite them for Driving While License Revoked.

Secondly, this charge carries with it 8 points towards your insurance.  Under North Carolina's Safe Driver Incentive Plan, 8 points will result in an increase to your automotive insurance premium by 220% for the next three years.  As an example, if you are presently paying $300 a year for your car insurance, you will be paying $660 a year for the next three years.

Finally, and most importantly, this charge is serious because a conviction of Driving While License Revoked will result in a one-year suspension of driving privileges.  Since most people cannot go without driving a car, many chose to drive anyways.  If they are caught driving during the one-year suspension period, it will result in an additional Driving While License Revoked charge.  That carries with it a two-year suspension.  A third or more charge will result in a permanent suspension (though you can petition the court for limited driving privilege after two years.   

A Driving While License Revoked charge is extremely serious and not one to take on by yourself lightly.  It would be in your best interest to speak with a Raleigh Traffic Attorney or Durham Traffic Attorney  about your particular case.  There may be an opportunity to avoid a license suspension from the Driving While License Revoked through some plea in District Court

Disclaimer - Information and advice offered in this article is for informational and educational purposes only and is specific to North Carolina law. The viewing, receipt and/or exchange of information from this article does not constitute an Attorney-Client Relationship. For assistance regarding your particular legal question speak with an Attorney practicing in the field from which your questions derives.

Tuesday, October 4, 2011

North Carolina District Court: Calender Call Explained

So, slightly off-topic, but I thought today's blog would do well to explain exactly what 'Calender Call' is as it relates to North Carolina District Courts.  As a Durham Criminal Attorney and Raleigh Criminal Attorney I have seen a lot of confusion in the courtroom from the public when it comes time for calender call.  But, more importantly, when I was an Assistant District Attorney in Harnett County, I saw what a frustrating situation it can be for the DA's when trying to run court.  Let me explain.

In Every courtroom in North Carolina, the DA's have what is called the 'Calender.'  The Calender is a list of every Defendant ordered to be in court that day, along with their charge and some other minor information.  The Calender is what the DA will work off of while running court that day.  In order to expedite the process, the DA's will call out the name of every Defendant at the start of court and ask them to answer up in one of five ways: Guilty, Not Guilty, Motion, Attorney, or Court-Appointed Attorney.  Most DA's do a good job of explaining what each answer means however, after a while, the DA's tend to fly through the explanation, and without a Q & A session, it can sometimes be hard to know how to answer.  Therefore, I will now go through each response and explain what it means.

  • Guilty: This basically tells the DA that the Defendant does not wish to fight the charges.  In some cases (probably better then half) the DA will still offer the Defendant a plea deal, since they are pleading guilty.  This is the response that most people are afraid of, because they are scared of admitting guilt before knowing what options they may have.  Though speaking with an attorney before hand will help alleviate these fears, just know that if you do answer up 'Guilty' during Calender Call, you can change your plea, so long as you haven't PLEAD GUILTY before the judge.
  • Not Guilty: This informs the DA that the Defendant wishes to fight the charges.  Unless an agreement can be made regarding a plea deal, answering up 'Not Guilty' will mean you wish to have a trial.  If this is your first or possibly second time to court, the changes are the State will continue the case in order to gather evidence.  Once the case is ready to be tried, it will normally not occur until after all the other cases have been disposed of.
  • Motion:  This response (or 'Continuance' also works) is informing the DA that the Defendant wishes to continue the case to a later date.  Understand, the court is NOT obligated to grant a continuance every time it is requested.  Normally, the Judge will allow a couple of continuances for each side.  So, if the Defendant has continued their case several times, they may face a situation whereby the Judge will NOT grant the continuance and you will either have to plead Guilty or Not Guilty.
  • Attorney:  This response (you may also answer with your Attorney's name, i.e. "Attorney Matheson") informs the DA that you have representation.  This is important because, the DA is not permitted to speak directly with a Defendant who has procured legal representation; whether by hiring an attorney or having one appointed by the court.  Once the DA knows you have an attorney, they will wait until that attorney comes to court in order to handle your case.
  • Court-Appointed Attorney:  Lastly, this response is requesting the court appoint you an attorney.  Though this is a good option for some, there are several things that should be understood about requesting a court-appointed attorney.  First, the Defendant will be required to fill out an affidavit covering their financial situation.  This affidavit is used to determine whether you qualify as an indigent (poor) Defendant.  Second, the Judge will make a determination, based off of your affidavit, whether you qualify.  The Judge is NOT obligated to appoint the Defendant an attorney.  If the Judge feels the Defendant has the resources to hire their own attorney, they will deny the request.  Lastly, court-appointed attorneys are not necessarily free.  If the Defendant ends up pleading guilty or is found guilty, they will be required to reimburse the State for that attorney's costs.  
That covers the basics of Calender Call.  Whether you are facing a with a North Carolina DWI charge or a North Carolina Misdemeanor charge this review will apply.  Obviously, you should speak with an attorney about what options you have available to you before going to court for the first time.

Tuesday, September 27, 2011

North Carolina Field Sobriety Test: Horizontal Gaze Nystgamus

Previously on the Raleigh DWI Attorney Blog I have discussed North Carolina DWI Stops and the administration of Field Sobriety Tests; specifically the Walk and Turn Test and the One-Legged Stand Test.  I will now review the third test, known as the Horizontal Gaze Nystagmus Test.  As a Durham DWI Attorney and a Raleigh DWI Attorney, I believe having an understanding of each of these tests is important.

This test is familiar to most as the test whereby the Driver is asked to keep their head still while they track a stimulus as it moves in front of their face.  A common misconception regarding this tests is that it is designed to see whether you are able to follow the stimulus without moving your head.  And while that will likely be recorded if you are not able to do so, that is not the main purpose of the tests.  Below I will review how the test is administered as well as what 'clues' the Police Officer is looking for.

To begin, the officer asks the Driver to keep their head still.  The Officer should look to make sure the Driver's pupils are equal and that the eyes track evenly, that is, both eyes move together.  The Police Officer will then move the stimulus (normally a pen, small light, or their finger) from the center of the Driver's face towards the Driver's shoulders keeping it 10-12 inches from the Driver's face.  The Police officer will do this several times.  Eventually, the Police Officer will hold the stimulus out towards the outside of the Driver's Peripheral vision.

During the first part of the test, as the stimulus is moved back and forth, the Officer is looking for what is known as 'smooth pursuit.'  Smooth pursuit is where the eyes track the stimulus smoothly.  Someone who may be intoxicated may have trouble with this and their eyes will 'fall behind' and then 'catch up' to the stimulus.  

Next, the officer will look for what is called Nystagmus prior to the eyes reaching 45 degrees from the center of their face.  Nystagmus is an involuntary twitching of the eye.  This twitching can be caused by many things, but can be present when someone is intoxicated.    For this test, the Officer is looking for Nystagmus to appear in the eyes prior to the eye reaching the 45 degrees previously mentioned.

Lastly, the officer will hold the stimulus out to the edge of the Driver's vision.  The stimulus should be held there for at least 4 seconds.  The Officer is looking for 'distinct' Nystagmus when the eyes are looking to their peripherals.  Though this is normally present even in sober people, since the eye grows tired of holding that position, those that are intoxicated can have a more 'distinct' Nystagmus that Officers are trained to spot.  

For these three tests, the officers are looking for 6 clues, 3 per eye: 1.  lack of smooth pursuit, Nystagmus prior to onset of 45 degrees, and Nystagmus at maximum deviation (looking at your peripherals).  

Occasionally, the Officers will also perform a Vertical Nystagmus test where they will hold the stimulus towards the upper part of the Driver's vision.  Nystagmus at this point tends to appear in those who are substantially impaired. 

Monday, September 19, 2011

North Carolina Field Sobriety Test: Walk and Turn Test

In my previous post, I discussed North Carolina DWI Stops and the North Carolina Field Sobriety Test:  known as the One-Legged Stand Test (I also added the Horizontal Gaze Nystagmus Test). I will now move on to a discussion regarding the Walk and Turn Test.

As explained before, there are three standard tests used by North Carolina Police Officers when conducting a stop for Driving While Intoxicated:  The One-Legged Stand Test, The Walk and Turn Test, and the Horizontal Gaze Nystagmus.  The Walk and Turn Test, like the One-Legged Stand Test, is both a balance test as well as a divided attention test.  Obviously, someone who is impaired above the legal limit will have some difficulty with their balance.  However, studies have shown that those that are intoxicated also have trouble dividing their attention between two tasks; specifically, maintaining their balance while concentrating on completing another task.

During the Administration of the Walk and Turn Test, the Driver is asked to stand, heel-to-toe on a either an actual line, or imaginary line, while the instructions are given.  They are told not to begin the test until the instructions are finished.  The Officer then explains that they want the Driver to take nine heel-to-toe steps along the line.  Once they reach step nine, the front foot stays in place while the other foot takes small steps around in a half circle until the Driver is turned 180 degrees.  They are then to take nine heel-to-toe steps back.  During the test, the Driver is to keep their hands at their side, look at their feet, and count to nine.  Normally, the Officer will demonstrate several steps as well as the turn as they give the instructions.

During the test, the Officer is looking for nine 'clues.'  Clues are actions taken by the Driver which are suppose to indicate some impairment.  For this test, only two clues are needed to qualify the Driver as having an impairment of .10 or more.  The nine clues are as follows:
  1. Cannot keep balance while listening to the instructions.
  2. Starts before the instructions are finished.
  3. Stops while walking to steady self (does not include merely walking slowly).
  4. Does not touch heel-to-toe (only if the gap is more than 1/2 inch).
  5. Steps off the line.
  6. Use arms to balance (only if the Driver raises one or both hands more than 6 inches from their body).
  7. Loses balance while turning.
  8. Incorrect number of steps.
  9. Cannot do the test (this will result in 9 clues being recorded against the Driver).

 As I will mention in each of these reviews, and as is more thoroughly covered on my Raleigh Criminal Attorney website, you should never agree to participate in any Field Sobriety Tests.  These tests are never 100% accurate and therefore can possibly lead to an arrest for someone not impaired.  Additionally, regardless of how well you think you will do, whatever happens during the test CAN and WILL be used against you should you be arrested.  There is no reason to provide the Officers and Prosecutors MORE evidence to use against you.  It is your CHOICE to perform the Field Sobriety Tests.  Eventually, I will blog about the Intoxilyzer and Intoximeter, which are the two different 'Breathalyzer' machines approved for used after arrest (not, this is different the the AlcoSensor, which is the machine used before arrest) and though it is your choice to provide a breath sample, refusing to do so carries with it consequences you should be aware of before you make that decision.  If you want an overview of these machines and consequences immediately, then you can go here for information: North Carolina Breathalzyer.

Friday, September 16, 2011

North Carolina Field Sobriety Test: One-Legged Stand

So, this will be an overview of North Carolina DWI Field Sobriety Tests.  The three main Field Sobriety Tests used by police officers  are the One-Legged Stand, the Walk-and-Turn, and the Horizontal Gaze Nystagmus test.  Today's Raleigh DWI Attorney Blog will deal with the One-Legged Stand.  As a Raleigh DWI Attorney or DWI Attorney Raleigh, I have had ample opportunity to explore each of these tests.

Field Sobriety Tests are those tests  requested (note: NOT required) of people the Officer feel may be Driving While Impaired.  They are performed outside of the vehicle, normally on the side of the road or the nearest safe location.  The 'Standardized Field Sobriety Test' (as it is officially known) was created by the National Highway Traffic Safety Administration.  The purpose of the tests is to ascertain whether the person being tested is "appreciable impaired" such that they have violated the North Carolina DWI law.

First to be evaluated is the One-Legged Stand.  In this test, the Driver is requested to first stand with their feet shoulder-width apart as the instructions are given.  The Officer will explain the Driver is to stand on one foot, whichever the Driver chooses, while elevating the other foot 6-8 inches off the ground.  The elevated foot should be pointed straight up.  The Driver is to keep their hands at their side and stare at their foot while they count to 30 to themselves.  Once 30 has been reached, the Driver can put their foot down and the test is over.

During the test, the officer is looking for several 'clues.'  'Clues' are what is suppose to indicate whether the driver is appreciable impaired.  Obviously, the more 'clues' the Officer observes, the more likely the driver is impaired.  The clues for the One-Legged Stand are putting the elevated foot down before 30, swaying, using hands for balance, and hopping to maintain balance.

As I will mention in each of these reviews, and as is more thoroughly covered on my Raleigh Criminal Attorney website, you should never agree to participate in any Field Sobriety Tests.  These tests are never 100% accurate and therefore can possibly lead to an arrest for someone not impaired.  Additionally, regardless of how well you think you will do, whatever happens during the test CAN and WILL be used against you should you be arrested.  There is no reason to provide the Officers and Prosecutors MORE evidence to use against you.  It is your CHOICE to perform the Field Sobriety Tests.  Eventually, I will blog about the Intoxilyzer and Intoximeter, which are the two different 'Breathalyzer' machines approved for used after arrest (not, this is different the the AlcoSensor, which is the machine used before arrest) and though it is your choice to provide a breath sample, refusing to do so carries with it consequences you should be aware of before you make that decision.  If you want an overview of these machines and consequences immediately, then you can go here for information: North Carolina Breathalzyer.

Tuesday, September 13, 2011

Raleigh DWI Attorney Blog | "Run and Your Done" law explained

A new North Carolina Traffic Law, the “Run and You're Done” bill, has been approved and is ready to be fought out in court by Raleigh Traffic Attorneys.  This bill was signed by Governor Perdue June 23, 2011 (the same time as "Laura's Law").  This law, which will go into effect December 1, 2011, is meant to deter Felony Speeding to Elude.   The "Run and Your Done" law allows North Carolina police to impound the vehicle of a Defendant convicted of felony speeding to elude. The Defendant's car or truck will be auctioned off with the proceeds to be given to North Carolina School Systems.
Carrying a similar catchy name as "Booze it and Lose it" and "Click it or Ticket" the "Run or You're Done" law is meant to serve as notice to the general public.  The idea being that the name, being catch, will stick in the mind of anyone contemplating running from the police in a vehicle. 
In 2010 in North Carolina alone, over 2100 people were issued citations for Felony Speeding to Elude.  During that time, many people's lives were put at risk, and some deaths occurred.  Recently, a Defendant was found guilty of 2nd Degree Murder for the death of a police officer who crashed is cruiser while responding to a chase involving the Defendant.  In addition, many of these cases of Felony Speeding to Elude of involved Defendants exceeding 100 miles per hour.  In fact, just this June a Defendant was cited for going 160 miles per hour while trying to elude North Carolina State Highway Troopers on Highway N.C. 24
Luckily for some, there is an exception in the new law which protects innocent third parties.  If the vehicle the Defendant is driving during the Felony Speeding to Elude belongs to someone else, the owner can regain possession of their vehicle.  But, should that same owner have their vehicle used in a subsequent Felony Speeding to Elude by the Defendant, the vehicle will be taken and sold at auction.

Saturday, September 3, 2011

Raleigh DWI Attorney Blog | NY Times Stop-and-Frisk Article

So, not exactly dealing with what the Raleigh DWI Attorney blog normally deals with, this Raleigh DWI Attorney blog entry is dealing with a police stop called the "Stop-and-Frisk."  The NY Times Article that peaked my interest can be found here.

The Stop-and-Frisk is a means by which an officer can stop an individual based on "Reasonable Suspension" of some kind of 'criminal activity.'  Reasonable Suspension is a very low standard, and though it is commonly used for other stops, particularly a traffic stop, this particular issue is a little different.  In a common traffic stop, the officer has reasonable suspicion that a crime has, or is about to be, committed.  They can use the same explanation for the Stop-and-Frisk, the big difference is, in a traffic stop, the officer an identify what crime it is they suspect has, or is about to be, committed.
If an officer catches you speeding with a radar gun, they know you have violated a traffic law dealing with exceeding the speed limit.  If they run your plates and learn your registration is out of date, they can stop you for driving a vehicle that is not properly registered.  For a Stop-and-Frisk, the officer doesn't know specifically what crime is involved, just that the actions of the individuals may indicate some criminal activity.

So, let's back up and explain specifically what a Stop-and-Frisk entails.  When an Officer believes they have 'reasonable suspicion' that criminal activity is occurring, they can stop the individual to investigate.  Now, the stop, like all stops, is not to last any longer than is necessary to ascertain whether a crime is, in fact, being committed, has been committed, or is about to be committed.  Now, I can't say I'm particularly happy with this standard for an officer to interrupt a citizen who may very well be involved in perfectly legal activity.    The real big issue comes in with the 'Frisk.'  You see, during the stop, if an Officer has some reason to believe the individual is armed, they are permitted to frisk them.  During this frisk, the Officer can feel the outer garments of the individual(s).  If, during the frisk, they feel something that could be readily identified as contraband, they can seize it, and where necessary arrest the individual.

Now, you may be saying to yourself, "an Officer has a right to ensure their safety in the course of their duty."  And, in most instances, I will agree with you.  The problem with the Stop-and-Frisk is, the standard is so low for them to justify stopping an individual, they can readily come up with some 'action' on your part which constitutes possible "criminal activity."  In fact, the mere fact that you turn and walk away when you spot an officer, or a quick hand gesture (which, supposedly, could indicate the tossing of contraband) is enough.

So, in these instances, the officer has not seen a crime be committed, or a potential crime be committed, just some action which they deem suspicion, in order to justify the stop.  Once stopped, they can justify the 'frisk' with any number of reasons.  what I am saying is, even though there is a supposed 'standard' that must be met before this Stop-and-Frisk can occur, it is so low, it is paramount to a random Stop-and-Search.

For a history lesson on this topic, it derives from a case called "Terry v. Ohio."  It's an interesting case if you have the time to read it.  In the mean time, back to the grind.

Friday, September 2, 2011

Raleigh DWI Attorney Blog | Intros

So, in posting my first blog post, I jumped the gun and learned that an introductory blog is normally appropriate.  I am an attorney in North Carolina who handles Raleigh Criminal Defense and Durham Criminal Defense.  In addition to Criminal Defense, I also am a Raleigh Traffic Attorney, with a special focus on handling Raleigh DWI charges and Durham DWI charges.  Since this is a focus of my practice, I thought it practical the title of the blog be Raleigh DWI attorney blog, even though my area of practice is slightly more broad. 
This blog is to serve as a way to keep my clients, as well as potential clients and the general public on the happenings in the world of DWI; specifically North Carolina DWI information.  Hopefully, if you are reading this, you will find the information that will follow as useful.
Beyond my practice, I have several interests that I try to maintain.  First and foremost is my family, I am married with no children (yet).  We have two wonderful pups we rescued, Mungo and Molly; both mutts.  I enjoy automotive restoration and fabrication, almost any outdoor activities, and when time permits, cheering on my Carolina Hurricanes.  Recently, I have even taken up Adult amateur ice hockey, which I am really enjoying.
That is all for now, please subscribe, or just check back often as I intend to keep this blog updated constantly.


Wednesday, August 31, 2011

North Carolina's new "Laura's Law"

And now recent news in the world of Raleigh DWI law from the perspective of a Raleigh DWI Attorney.  The North Carolina Legislation passed a new law referred to as "Laura's Law.'  This law, officially called House Bill 49, was signed into existence by Governor Purdue on June 23, 2011.  Created to added a greater degree of punishment then was previously available, this law seeks to increase jail time, fines as well as post-release requirements for those with certain, severe factors weighing against them.

This law was written in response to the tragic death of Laura Fortenberry.  Ms. Fortenberry, 17, was killed when the vehicle she was riding in was struck head on by Howard Pasour, who was intoxicated.  At the time of the accident, Mr. Pasour had three previous convictions of DWI on his record.

The new law now adds a 6th level of sentencing to the 1-5 levels previously available.  Referred to as "Aggrevated Level 1," this new level permits fines up to $10,000 with a jail sentence range between 12 months and 36 months.  The defendant would not be eligible for release any sooner then four months before the maximum range they were sentenced to.  Additionally, if the sentence is suspended (meaning the jail time the defendant is sentenced to is suspended on condition they meet other requirements), the defendant is still required to be imprisoned for 120 days.  Finally, upon release, the defendant is under supervised probation and required to abstain from alcohol consumption.  To ensure they do, the court requires they wear an alcohol monitoring device around their ankle for the four months; the cost of which is the defendant's burden to bear.

In order to be subject to this 'Aggravated Level 1' sentencing, the defendant must have three or more what is referred to as "grossly aggravating factors.  Under North Carolina law, the level of sentencing a DWI defendant faces depends on three things: mitigating factors, aggravating factors, and grossly aggravating factors.  Future blogs will cover these sentencing considerations in more depth, but for the purpose of this blog, grossly aggravating factors are: Prior DWI conviction in the previous 7 years, Driving While License Revoked conviction when the revocation was for impaired driving, serious injury to another caused by the defendant's impaired driving, and either:
  1. a child under the age of 16 in the vehicle at the time of the offense (for offenses that occur before December 1, 2011), or
  2. a child under the age of 18 in the vehicle at the time of the offense (for offenses that occur on or after December 1, 2011).
Prior to this new law, the worst someone with three grossly aggravating factors could face is a Level 1 sentence.  Level 1 consists of a fine up to $4,000, imprisonment between 30 days and 24 months.  If the active sentence is suspended, the defendant must be imprisoned for 30 days.

And now for some perspective.  As a Raleigh DWI attorney, I applaud this law.  Don't get me wrong, I'm not thinking in contrary to clients bests interests.  And if any of my clients face an Aggrevated Level 1, I will fight for the very best outcome possible, as I would for any of my other clients.  That being said, most DWI charges are a one-time thing.  Most people caught on their first DWI are not repeat offenders.  Unfortunately, like the rest of the criminal justice system, the Government relies heavily on the ignorance of the general public.  Too many people just do not understand the severity of a DWI charge and how easily one can be had.  So, they risk that one last drink, get behind the wheel, and get busted.  But, as most anyone ever charged with a DWI will tell you, it is an awful and VERY expense experience they do not ever intend to repeat.  As such, this law was not written for the general public, it was written for those who have serious drinking issues that haven't faced a severe enough consequence to deter them from continuing their action.  My hope is, with this new sentencing level serving as a deterrent, there will be very few that end up having to face it.