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Friday, October 26, 2012

Raleigh Traffic Law | Recent Changes to the 'Move Over' Requirement

So, to little fan fare and publicity, the North Carolina Traffic Law regarding the requirement to move over for emergency vehicles has recently changed. What requirements drivers face when approaching 'emergency vehicles' has changed to include new 'emergency personnel' that most people may not think to give consideration to. As a Raleigh Traffic Lawyer and Raleigh DWI Lawyer, I stay up-to-date on recent changes to the North Carolina Criminal codes so that I can better advise my clients. This change can have a lasting impact on those who are unaware of these new requirements. As most North Carolina drivers realize, when a Police Officer has someone pulled over on the side of the road, or there is an ambulance or fire truck on the side of the road, the driver is required to move over a lane and/or slow down and be prepared to stop until they have passed the police officer. However, the recent changes to the North Carolina Traffic Law N.C.G.S. 20-157 includes those same requirements for roadside assistance vehicles and emergency vehicles which have flashing yellow lights. The language of the statute does not specify a definition of 'emergency personnel' or which vehicles constitutes a 'safety vehicle.' However, given the law does specify the flashing yellow lights, it would seem to include government roadside assistant vehicles for those stranded on North Carolina roads, as well as possibly tow trucks assisting those same drivers. The changes to this law include spelling out what consequences a driver could face should they violate this law. Should the driver fail to move over and/or slow down, they would face an infraction with a two hundred and fifty dollar fine. If property damage to the emergency vehicle in excess of five hundred dollars or personal injury to the emergency personnel occur as a result of negligence of the driver, the the Driver will face a Class 1 Misdemeanor. Should serious bodily injury or death result, the driver would face a Class I Felony. These consequences can be serious for the Defendant and should not be taken lightly. If you are facing these charges, or any other traffic ticket in Wake County or other criminal charges, contact the Matheson Law Office for your free consultation.

Wednesday, October 3, 2012

Raleigh Drug Cases | Why Not to Trust Drug Tests

So, I realize it's been a while since my last blog post to the Raleigh DWI Attorney Blog. September was a hectic month and I really could not find time to breath. In truth, I'm still crazy busy with all of the Raleigh DWI Charges and Raleigh Criminal Charges I'm handling, but a recent article coming out of Boston warranted a blog post like no other. As covered by CBS and other news affiliates, a recent scandal at a Crime Lab in Massachusetts deals with a crime lab chemist who falsified test results. These results were not from tests to determine air quality or the impact of drilling on local streams or rivers. No, these results were from tests of potential drugs that were submitted to the STATE CRIME LAB to determine whether the individual in possession of them was, in fact, violating the law. What this means is, there are individuals who could currently be serving time for crimes they may not have committed. Now, certainly reading this, one would think it was likely some isolated incidents which were quickly discovered and rectified. In reality, this individual was a State Crime Lab Chemist for 9 years and tests over 60,000 drug samples. Well, it could be argued that perhaps there were simple mistakes made and not the intentional conduct of a State employee who could impact the conviction of every day citizens, right? Nope, this individual admitted to altering tests, going so far as to adding cocaine to some samples that came back as negative. Well, certainly her supervisors cannot be held accountable for her actions, how could they have known what she was up to, right? Well, where a normal Chemist in this office averaged processing 150 samples a month, this individual was processing 600. In fact, the staff at this State Crime Lab had nicknamed her 'Superwoman' for her ability to get so much done. Now, certainly the mistakes of an individual in Massachusetts does not impact those who are charged with violating North Carolina Drug Laws here. However, this situation goes to show that the system is imperfect. Where some may be quick to chastise someone charge and/or convicted of a North Carolina Law, they need to understand that our justice system is still a system designed, orchestrated and maintained by humans, who are prone to error. So, before you pass judgment on an individual under these situations, understand that there is the possibility that they are in fact innocent of the charges they face. If you are facing a Raleigh Misdemeanor Drug Charge or Raleigh Felony Drug Charge, contact the Matheson Law Office for a free consultation.

Thursday, August 16, 2012

Raleigh Traffic Law | New News on Red Light Cameras

So, of interest to myself, the remainder of the Raleigh Criminal Defense community, and hopefully the general public is the news that the town of Cary has decided to remove their Red Light Cameras. For those who don't know, Red Light Cameras are cameras set up at certain intersections which are suppose to document driver's running a red light. These cameras are operated by a third party who issues tickets for the city costing the driver $50 for this infraction. There are several issues I have with the Cameras. As a Raleigh Traffic Lawyer (which is addition to being a Raleigh DWI Attorney and criminal attorney) I've become fairly familiar with these systems. In addition, while in law School and had an entire class that was devoted to me writing and advocating the a North Carolina State Supreme Court Justice a case regarding these programs. That class explored the case of Shavitz v. High Point where the plaintiff had received a red light camera ticket. He filed suit on several grounds but was ultimately successful in District Court (and was upheld in Appellate Court) by arguing that the N.C. State Constitution requires the 'clear proceeds' from these tickets is required to go to local public schools. The court determined 'clear proceeds' is everything but nominal costs associated with processing these tickets. It DID NOT include the over 70% the third party companies hired to install and enforce these programs retained from each $50 ticket. For that reason, High Point, along with other municipalities elected to end their programs. In fact, only Raleigh, Cary, Knightdale and Wilmington retained their programs, which was (arguably) permissible due to new legislation. Certainly the fact that these third parties were keeping so much money, with so little going to area public schools is disturbing. Another issue I (along with most other Raleigh Criminal Defense Attorneys) have an issue with is the fact that there is no Police oversight to these programs. The Camera catches the image and a ticket comes in the mail. The problem with this is the fact that we each enjoy a 6th Amendment Constitutional right to confront our accuser; in this case the camera. It's kind of hard to question the camera on the accuracy of it's data, or whether anything else could have impacted the results that were not the Defendant's driving. Now, there are those who would say that since the picture captures the offense, there's no need for Police oversight. But, recently it was determined that there were over 30 cases of individuals who were issued these tickets when making a legal left-hand turn at a blinking yellow light. If, instead of a camera, a Police Officer was stationed at the intersection to try and catch the same offense, he/she would have known that the Driver was not running a red light and would not have issued the ticket. Hence, the need for police oversight in these programs. Finally, I feel having a third party company issuing citations to enforce state/city law is unethical. A part of the job of local government is the enforcement of the laws. Those who are commissioned to enforce them have been trained and are held to certain standards that is necessary when dealing with accusing someone of violating a crime. Having a third party issuing these tickets, who are not government officials, and who have a financial incentive in the issuing of these tickets, is unethical. Hopefully the remaining three cities in our great State of North Carolina will follow suit and end their programs as well. Until then, should you get one of these tickets, or any other Raleigh Traffic Ticket, Raleigh DWI Charge, or Raleigh Criminal Charge, contact the Matheson Law Office today for your free consultation.

Monday, July 30, 2012

Raleigh DWI Law | Delays in Blood Cases

So today's Raleigh DWI Attorney blog is going to deal with what happens when an individual facing a North Carolina DWI Charge either refuses to blow in the Intoxilzyer or are unable to and the State elects to draw the Defendant's blood to test for their blood/alcohol concentration. Commonly referred to as a 'blood case' these type of DWI's have some interesting ins and outs for a Raleigh DUI Lawyer or any other North Carolina DUI Lawyer. But, this blog post is not intended on covering all the issues that can come up with blood cases. No, today's blog post is going to deal with my frustration with the handling of these particular types of cases. You see, with blood cases in North Carolina, the blood is shipped off to the State Bureau of Investigation (SBI) to have then run the test to determine the Defendant's blood/alcohol concentration. In many of these types of North Carolina DWI cases, is very important to the State's case against the Defendant. However, the blood can take months for it to get back to the District Attorney's office. Since the State is reluctant to proceed without the blood results, they will continue the case multiple times until the blood results comes in. Now, as a Raleigh Criminal Attorney and Raleigh DWI Attorney, I am no stranger to continuances. In fact, both the Defense and the State will utilize continuances in order to get time to get their evidence together, work out pleas, etc. What my big frustration is that there seems to be a double standard in some counties when it comes to blood cases. You see, for some counties in the Research Triangle Area, DWI cases are required to be resolved very quickly. If the case is several months old, the Defense may not be granted a continuance, regardless of the reason for the motion to continue. Now, some attorneys may be asking for a continuance for selfish reasons, others may have legitimate reasons, like a necessary witness isn't available that day, or the Defendant needs more time to complete their Substance Abuse Assessment, get money together, or make arrangements should they be facing jail time. Regardless, if the case is outside the predetermined limitations for DWI Cases, the Judge can deny the Defendant's motion and they are forced to proceed. Now, shift gears to a blood case. In these same counties (one in particular comes to mind - though will not be named) if the DWI is a blood case, the State is given all the time in the world to get their evidence together. Now, I understand the District Attorney's office has their hands tied because they can't control the SBI, but that doesn't change the fact that the Defendant is being required to come to court multiple times on something they have been accused of (but not yet proven) in violation to their right to a speedy trial. As example, I was in this particular county this morning for a client who was charged with a North Carolina DWI November 6th. This client has had 5 court dates since that time, each time having to have a relative take off of work and drive them to court as they can't drive themselves. The Judge today granted State's motion, over my vigorous objection, but did mark the shuck last (meaning the State is not suppose to get another continuance on the new date). Now, some may say, what's a few months of waiting, the State needs to be able to convict these people and need these blood results in order to do it. But keep in mind, these individuals have only been ACCUSED of a crime. Though a Police Officer was suppose to determine that they had probable cause to charge the individual, that is not necessarily enough for a conviction. What if these blood results came back as a .02? Would you still feel it's appropriate that the State require these individual come to court five, six, eight times, take at least an hour at a time to figure out what is going to be done with the case, only to learn that there was not enough evidence to charge them, let alone convict them? There is good reason we have a Constitutional Right to a speedy trial, so that the State cannot bring charges and then make the Defendant wait around, and come to court under threat of arrest, until the State can make their case. If you are facing a Raleigh DUI Charge, Raleigh Criminal Charge, or Raleigh Traffic Ticket and are in need of a free consultation, contact the Matheson Law Office about your case at 919-335-5291.

Thursday, July 19, 2012

Raleigh DWI Stops | Understanding the Checkpoints

So, today's Raleigh DWI Attorney Blog will discuss some aspects of the checkpoint and in what ways can they be challenged. Many people understand that, unfortunately, the Police have the ability to set up checkpoints. What many do not realize is the limited scope for which they can setup the checkpoint. As a Raleigh DUI Lawyer and Raleigh Traffic Lawyer, I have explored the various aspects of a check point and in what ways they can be challenged. This article will hopefully shed some light on this practice of law enforcement. First, in North Carolina certain case law has outlined the requirements of what constitutes a permissible North Carolina DWI Checkpoint. Under N.C. v. Rose, the courts found the Police in that particular case had improperly set up the checkpoint and therefore sent the case back to the lower courts to rule in accordance to their finding. Specifically, the court held that the Police did not set up the checkpoint for a specific reason, but rather set up it for 'general crime prevention.' This was in accordance with City of Indianapolis v. Edmond, where the U.S. Supreme Court held that for checkpoints to be Constitutional, the State must prove the primary purpose of the checkpoint was not for general crime prevention. From there, if the court finds the State proved the primary purpose of the DUI checkpoint was not for general crime prevention, then the court must determine the reasonableness of the checkpoint by applying the 'Lidster Analysis' which examines 1. The seriousness of the public concerns attended to by the seizure, 2. The degree to which the seizure assisted the public interest and 3. the gravity of the interference with individual liberty. The Police will normally set out a 'plan' which will outline the reason for the checkpoint and the means by which they conduct the checkpoint. In this plan, which must be authorized by some type of supervisor, there must be a set parameter by which the vehicles are stopped to ensure that no individuals are 'targeted.' Additionally, no one Police Officer may have authority to control or dictate the process by which the stops occur during the checkpoint. These restrictions are meant to ensure that the scope of these type of stops are very limited and very controlled. Remember, in America, we enjoy the right to Unlawful Search and Seizure, which normally requires a finding of Reasonable Suspicion to validate the temporary seizure. These checkpoints are a limited exception to this rule and therefore are strictly construed to very specific purposes. If you have received a North Carolina DUI Charge as a result of a Raleigh DUI Checkpoint or checkpoint anywhere else here in North Carolina, speak with a local DWI Attorney about your case. 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.

Monday, July 2, 2012

Raleigh DWI Defense | Understanding YOUR Case

So, today's Raleigh DWI Attorney Blog focuses on some of the fun questions I get as one of the Raleigh DWI Defense Lawyers in the area. As a practicing attorney, it is common place for people to approach you and ask for my thoughts on their case (or their friend's case, cousin's case, etc.). I also enjoy the hypothetical that comes with the position as well (what if......). Hypothetical questions are always fun because the person asking is usually looking for a professional view on a fictitious scenario and therefore has less at stake. However, for those that approach me about their Raleigh Criminal Charges, Raleigh DWI Charge or Wake County Traffic Ticket, they are very concerned about the outcome and therefore want me to give the best case options they have available to them. Normally, when speaking with the individuals, I have no problem sharing with them my opinion on how the case would be handled and what outcome I believe they could expect. What can become frustrating very quickly is when they questionor starts sharing with me what they have heard from friends and family. All-to-often, their cousin's friend's girlfriend had this exact charge dismissed. Or their Aunt in Wyoming faced something similar and the she got a slap on the wrist. It can be very difficult explaining to someone how those cases can be (or more often then not, are entirely) different from their current case. See, the reality of traffic, DWI, and Criminal Defense is there are so many variables that play into the outcome that any one individual's outcome can be entirely different from the next, even if they are in the same county. It's like asking why your surgery recovery time was different then someone 20 years younger then you who had the same surgery (or worse, had a different surgery). Being an Attorney, like most any other professional, requires an refined understanding of many minute variables which can impact the outcome of any one endeavour. For the practice of law, some of the more obvious are the State and county in which the charges were brought, the laws governing them, the prior criminal record of the Defendant, the District Attorney handling the case and the Judge if there is a trial. What a lot of people don't realize is there are many, many more factors that play into any one case. Who brought the charges, where there problems with the evidence, where there problems with the stop, what about any searches, any witnesses, are the witnesses for the State competent, are the present, etc.? As example, I provide free consultations for people calling about their Raleigh DWI charges, or any other North Carolina Criminal Charges or traffic tickets they received in the Research Triangle Area. The most popular by far are the North Carolina DUI/DWI Charge calls. Whenever I provide the potential client a case evaluation, I always tell them that I am making my best educated guess based on the facts as they have conveyed them to me. However, I won't know anything for sure until I have had an opportunity to speak with the Police Officer and take a look at their notes. I do this because, what the Defendant may remember about that night can be different then what the Officer remembers, and the Officer's Testimony is usually the one I have to work with (because putting a Raleigh DWI Defendant on the stand will lead to cross-examination about them drinking and driving and that hurts our case). In addition to someone else's experience with the same or similar charges, the other part of this is that of what other family or friends are telling the individual how the case should be handled. I always enjoy hearing what people with no prior legal experience are telling these individuals about the lawfulness of the Police Officer's conduct or how the case should proceed to lead to an out-right dismissal of charges. The reality is, you speak with an attorney about your case because they have an extensive education and (hopefully) experience in this area and can properly advice you about your individual case. So, this blog is dedicated to those who want legal advice but are letting what other people tell them influence their expectations. If you are facing charges in North Carolina, or anywhere else for that matter, speak with a local attorney about your case. If you have received charges in the Research Triangle Area, contact the Matheson Law Office today at 919-335-5291 for a free consultation.

Thursday, June 28, 2012

Raleigh Criminal Defense | Marketing Tactics

So, today's Raleigh DWI Blog is going to have less to do with the practice of defending someone facing a Raleigh Speeding Ticket, Cary DWI Charge or any other North Carolina Criminal Charge and more to do with the actual practice of running a criminal defense law firm (though really, this semi-rant can apply to any legal field and likely any other professional field). As I have launched the Matheson Law Office, Pllc, I have grown my practice in many different ways since first preparing to launch the business 2 years ago. One of the things that I and my staff focus on, as do anyone else running a small business is marketing. Marketing is where it is at when it comes to getting a business off the ground. Without a client base, all other preparations will fall apart. And, just like the time I spend marketing to my client base, I receive calls and emails from those marketing their services to me. In most instances, those that reach out to me are trying to sell me on a marketing product of theirs that is suppose to grow my business. They promise more contacts from those seeking Raleigh DUI Lawyers or to refer those individuals to my practice when contacted by them. I am certainly happy to entertain the speech on what their products are. If I feel they are selling something that is worthwhile to my practice, then I'll invest in it, if not, then I politely decline. What has become apparent to me is the level of deceit that is utilized by many of these operations. The most common one I get is when a company calls me telling me they work for so-and-so attorney in some other State and has some potential clients facing Raleigh DUI Charges and seeing that I am a Raleigh DWI Attorney, they want to refer me the work. Automatically, I know to inquire exactly who it is they work for, the specific name of the company. In every instance so far, they eventually (some take longer then others) admit that they work with a private company selling the referrals and only mentioned the so-and-so attorney as one of their clients. In reality, these companies have secured a valuable domain name (i.e. a web address that someone may type in when looking for representation in my area) and have established a website specific for referring clients nationally to attorneys in their areas. My frustration with this is with the misrepresentation that the referral is coming from another attorney. You see, it is common practice for attorneys to refer cases to other attorneys if the case is not in their geographical area or not in their practice area. So, there could be an attorney in Florida who found me on the web and wants to refer me a client of theirs who got Raleigh Misdemeanor Drug Charges. So, for those who don't inquire, they may actually sign up for this program thinking they are legitimate attorney referrals. Recently, I dealt with a twist on this concept that I found frustrating. I was contacted by a gentleman who claimed he worked for Apple and they were developing Apps to be used on the Iphone and Ipad for DWI and DUI charges. He wanted to set up an interview with one of their sales people to see if I 'qualified' to serve as an attorney the App referred to. I specifically asked this guy the name of the company he worked for and he said "Apple." I asked, as in Apple Computers and he said yes. So, extremely weary of this, I set an appointment for them to contact me today. Aside from the fact the call came over an hour late, I decided to take the call. During his speech, I picked up phrases like "work with Apple," "approved by Apple," etc. So, I asked him specifically what is his company's name, and he told me something like 'The App Store Development.' I asked what his affiliation was with Apple, and he told me they were a subsidiary of Apple. So, I asked him to elaborate on that. He went on to explain that there was an Apple Office down the street from them and that Apple gives them a heads up with new developments and how they were specially licensed by Apple to develop these Apps in certain areas. I asked how they were different from individual developers who make Apps and he told me that they had a 'premium license' with Apple and explained all that it means. So, I asked him whether his only affiliation with Apple was that his company carried a premium license for App Development, and he said that was correct. Needless to say, I told him that I found the sales tactics deceptive and misleading. I'm certain if someone wanted to go through the trouble of following through with it, there is a Deceptive Trade Practices Act violation in there somewhere, but honestly, not like much would come from it. Now, in reality, there is an allowable amount of 'puffery' when it comes to marketing. Certainly a turn-of-phrase or focus on the good and not the bad is all part of successful marketing. But that differs from an outright misrepresentation of the truth. For any attorneys out there that may read the Raleigh DWI Attorney blog, be very weary of these types of calls. Honestly, I find it humorous that one of the markets they focus on is an industry built on individuals who are inherently weary, untrusting and inquisitive. Unfortunately, this being the modern age, I'm certain there are members of the Bar who are older and not as familiar with the practice of internet marketing who may get taken for a ride.

Thursday, June 21, 2012

Raleigh Drug Charges | How Can We Trust The Tests?

Recently, I was looking through the news and happened upon a news story addressing drug testing, which applicable to this blog as North Carolina Drug Charges are big part of my law practice. The article in question, which can be read here explains that a common practices is for hospitals to do urinalysis of new born babies for the presence of drugs. One of the things they are looking for is THC, which is the active ingredient in Marijuana. Apparently, by identifying baby's who have been exposed to drugs, they can report the parents to local authorities. Likely, these parents will be charged with some form of child endangerment crime as well as likely struggle with Child Protective Services in maintaining custody of these children. While I certainly agree that it is important to protect children, especially new born babies, from a home where drugs are present, there is a flaw in all of this as the article explains. In the article, a hospital here in North Carolina was getting a high number of positives on these drug screen tests they were performing on the babies. After monitoring all the activity of the babies in this hospital, as well as the operations of all staff that interact with them, as well as all substances that the babies come into contact with, the study found out that it was baby shampoo that was causing the positive results. That's right, baby shampoo was causing these tests to indicate the presence of Marijuana in the babies' urine. In fact, there were four different kinds of baby shampoo from three different companies which caused these false positives. Now, let's stop and think, how many times do you think a parent has been accused of exposing their new babies to marijuana. How many have been charged with a crime, or worse, had their kids taken from them all from these types of tests which we now see are flawed. More importantly, if these tests can have a false positive as a result of baby shampoo, what other products can cause false positives that we don't know about? How does something like this get missed by those ensuring these tests are 100% accurate. I mention 100% accurate because certainly we would not convict someone of something as heinous as drug use, or exposing children to drugs, if the tests were not presented as 100% accurate. Because, you see, as far as this Raleigh Drug Defense Lawyer is concerned, if the tests are not 100%, then they should not be used. I would rather we have hundreds of potential convictions thrown out due to not having adequate testing which can meet the level necessary to convict, then to convict an innocent person of North Carolina drug possession or use as a result of one of these tests. Obviously, I'm not saying that the average drug user is bathing with baby shampoo, but again, if something as simple as this can cause a false positive, then the potential for other products doing the same thing is likely. The reality is as far as criminal prosecution goes, we as a society have turned over the responsibility of proving elements of crimes to machines. These machines are inherently flawed as anyone knows who has ever worked a copier/fax machine, DVR, or computer. Unfortunately, many believe that the science is somehow better at these levels then what we are used to. To some degree, they are better, but that doesn't mean they are infallible. In addition, regardless of how good they get, we all still enjoy a Constitutionally protected right to confront our witnesses. However, with most of this machinery, Criminal Defense Attorneys Raleigh or elsewhere are not given access to the code used for their programing in order to challenge it. Finally, the courts have just come to accept them as gospel, no matter how hard we try and show that they are prone to mistakes. This article should give pause to anyone, especially in the judicial field, from accepting accusations of criminal activity that involve scientific testing; including blood/urine/breath testing. If you are facing a North Carolina Drug Charge, or drug charges anywhere else, speak immediately with a local Criminal Defense Attorneys Raleigh or in your area to get specific advice about your case.

Monday, June 18, 2012

Raleigh DWI Defense | License Restriction

In the world of Raleigh DWI Defense the span of consequences is long and exhausting. Many realize that being convicted of a Raleigh DWI Charge will result in loss of license, an increase in insurance premiums and plenty of costs and fines. Some even know that there are consequences with even being CHARGED with a DWI, including loss of license for 30 days and a $100 civil revocation fee, even if you are not convicted. What some do not realize are the after affects of a North Carolina DWI Conviction which are less heard of. For starters, anyone with a blood/alcohol concentration of .15 or above will have the added requirement of having an Interlock device installed on their vehicle for one year at the point that they start driving after being convicted of a North Carolina Driving While Intoxicated charge. This device cost approximately $100 to install, and $60/month maintenance; all costs that are the burden of the Defendant. In addition to this requirement, where those with a blood/alcohol concentration below .15 (or who were convicted under the Appreciable Impairment portion of the statute) can receive a Limited Driving Privilege the same day as their conviction, those with a .15 BAC will have to wait 45 days before they can receive it AND have completed their Substance Abuse Assessment as well as all recommended treatment and show proof of the Interlock installation. Another thing to consider is any license restrictions which will be applied to the Defendant's driver's license once they get it back. A five-year restriction of DWI Convictions whereby the Defendant cannot be found driving with a blood/alcohol concentration of .04 or more. Though one would think after having been previously convicted of Driving Under the Influence in North Carolina, most would avoid drinking and driving anything, many people believe they are probably safe to drive after only one drink. In reality, depending on the individual, one drink can lead to a blow of .04. Recently, I was successful in getting an acquittal for a client charged with violating their license restriction. My client refused to provide a breath sample and the State elected not to obtain a blood sample. Since the State had no scientific evidence as to what, exactly my client's Blood/Alcohol Concentration was, I argued that the State failed to prove beyond a reasonable doubt that my client's BAC was at .04 or above. Lastly, and most importantly, in North Carolina, you DO NOT want to get a second DWI after having previously been convicted. If the prior DWI conviction was within the preceding 7 years prior to the new DWI, that is a Grossly Aggravating Factor. One North Carolina Grossly Aggravating Factor will result in a minimum mandatory jail sentence of 7 days. Obviously, there are other consequences, namely the fact that the conviction will show up on the Defendant's record. Obviously, it is recommended to never get charged with a DWI in North Carolina, but if you have been, seek legal counsel immediately. If you received a DWI, or any other Traffic or Criminal citation in the Research Triangle Area, contact the Matheson Law Office, Pllc for assistance.

Wednesday, May 30, 2012

Raleigh Criminal Defense | Difference Between 'What is Right' and 'What is Legal'

In my experience with North Carolina Criminal Defense I have the opportunity to meet with people from all walks of life and see cases that range from common to the very strange. One of the experiences I deal with often is trying to explain to someone how it is their conduct was considered to be in violation of some North Carolina Traffic Law or Criminal Law. While some people hope to just offer an explanation which could help them possibly avoid the conviction, some people are convinced that they should not be convicted because they were justified in their actions. In my talks with various DWI Defense Lawyers Raleigh and, it would seem my experience is not unique (not that I necessarily expected it to be). It seems that, regardless of the laws, some people just believe their conduct should have been excused simply because they feel they were right in their actions. Now, let me distinguish this from situations where the Defendant has a valid defense. Where the law, whether by statute or case law, states that the Defendant has an applicable defense, then those Defendants are correct in their assertion that they conduct was excusable. However, for others, there is not valid defense for their action, or at least not one that they fall squarely within. Because, regardless of the Defendant's 'good intentions' or lack of knowledge, the court usually does not make exceptions to violations of the law. Perhaps some examples in this discussion would help clarify what I mean. An associate of mine is representing an individual who is facing a Raleigh DWI Charge. The Defendant in this case was one of two passengers in a vehicle. Though he was intoxicated, he was not driving. However, at some point, the driver of the vehicle stopped the car in the middle of the road and walked away. With approaching traffic, the Defendant hopped in the Driver's seat and pulled the vehicle over to the shoulder. Unfortunately for the Defendant, the approaching traffic was a Police Officer, who eventually cited him for violating North Carolina Driving While Intoxicated Law. There is a defense called "Necessity" whereby, if the Defendant can prove to the court that his actions, though unlawful, were necessary to preserve the health and/or life of themselves or another from immediate danger, they may have their violation of the law excused. In the contrary, I was fortunate to observe a speeding ticket trial where the Defendant was 'pro se' (meaning he was representing himself). In this case, among many other things, one of the things the Defendant was arguing to the Judge was that his speeding was excusable under the concept of Necessity. Though the Defendant was very passionate about the necessity for his speeding (I want to say it was 50+ in a 25 MPH zone) his argument was not very convincing. You see, his 'necessity' was that he needed to get to a doctor's office where a family member was being seen for a broken bone and there was a rambunctious 2 year old family member who was hard to control in the waiting room. This, the Judge determined, did not rise to the level required for a necessity defense. And it's not just 'Necessity' which some people argue. The most common one I hear is for those cases where I serve as their Raleigh DUI Lawyer. The Defendant was okay to drive, though their blood/alcohol level was a .08 or above: unfortunately, the law does not make a distinction between the two. In fact, in North Carolina, .08 is written right into the North Carolina DUI Statute, stating that a .08 blood/alcohol concentration is prima facia evidence of violating the NC DWI Law. So, even if the DWI Defendant was driving perfectly, never showing any signs of impaired driving, but happen upon a DWI Checkpoint and the Police Officer's decide the driver is potential impaired and therefore have them blow or give blood, they can be convicted, regardless of how well they were able to drive. I guess I am saying all of this to say that, though you may have the best intentions, you may not be able to avoid a conviction if your conduct was unlawful, so tread carefully. If you are facing traffic, dwi or criminal charges in North Carolina, contact a local attorney for best advice on your case (if it's in the Research Triangle Area, contact the Matheson Law Office). 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, May 15, 2012

North Carolina DWI Law | Finding the Right Lawyer

So, today in the world of this Raleigh DWI Attorney I witnessed something that had my interest. I watched as an attorney plead out a dwi charge for their client who had a prior DWI charge. Now, fortunately, for this North Carolina DUI Charge, the Defendant's Prior NC DUI Conviction was more then 7 years ago and therefore was not a Grossly Aggravating Factor, only an Aggravating Factor (side note: I find it silly that the legislation couldn't come up with different names for these two things so they aren't so close that they cause confusion to many clients as I try to explain the difference between them). However, this Defendant's license was revoked at the time of the current NC DWI and therefore had at least one Grossly Aggravating Factor. Now, aside from the fact that I thought the Defense Attorney could have argued better for sentencing, it wasn't what I found so interesting about this plea deal. What was interesting about this case was the fact that the Defendant was reported to the Police by an anonymous tip AND that the Defendant had refused to provide a breath sample to the Police Officer when they caught up with her. Now, let me preface what I am about to say, I do not know all the facts about this case. There may have been a very good reason to plea this case out; the Police Officer may have gotten reasonable suspicion before he stopped her, they may have drew blood, they may have other evidence that I am not privy to, or the Defendant may have just wanted to plea the case out and get it over with (almost had a client facing similar sentencing do this exact thing). But, given that the Defendant was facing a minimum jail sentence (they were actually sentenced above the minimum to 120 days active jail sentence) I find it difficult to understand why a trial was not had? First, for anonymous tips, there's extra steps the State must go through in order to justify the stop based on it, and even then there are certain challenges that can be made to try and prevent the testimony of what the tip was, which could prevent the State from entering any evidence as a result of the tip and possibly beating the case. Additionally, a case where the Defendant has refused to below is a very triable case. Understand, 'very triable' and 'very winnable' are two completely different things. But, at least with a refusal, the State has to either: 1. prove appreciable impairment, which is a subjective concept that a Raleigh Defense Attorney could cast doubt on or 2. it's a blood draw, in which case the Defense attorney could try and keep it out unless the State presents evidence of chain of custody as well as the presence of the person who drew the blood. Again, I say, I do not know all of the facts of the case, so I am not trying to be too critical of this particular case. But I am extremely curious as to why this was plead out and not tried. In my talks with other attorneys (given, only a handful when considering the large volume of attorneys doing Raleigh DWI Defense and Durham DWI Defense) it seems that many attorneys are quick to plea and avoid trial because they don't feel that there's much chance of winning. And while that is true (they can be hard to beat) there is little to no consequence to the Defendant if they decide on a trial and it is their only chance of beating the NC Driving While Intoxicated charge. I guess what I am trying to say is, when speaking with the Attorney you may potentially hire in this case, be sure you inquire as to whether they are prepared to try the case or are they just interested in a quick turn-around where they just plea out the case. 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.

Wednesday, May 9, 2012

Dangerous Conduct in the DUI News World

Though this didn't take place in North Carolina, and therefore does not involve a North Carolina DWI Charge, I find the following article 'blog-worthy.' The following article: DWI/DUI involves grandparents in Florida who decided, after knocking back a few, to tow their 7 year old behind their SUV, up and down an access road, in a hot wheels. The Driver was the young child's grandfather, and though the article did not mention what his blood/alcohol concentration was, it did indicate that this was his FOURTH DWI CHARGE! I have had clients before who have had previous been charged with North Carolina Driving While Intoxicated and it was not their first charge, but I have yet to have someone on their Fourth North Carolina DUI Charge. The grandmother in this case was seated in the cargo area of the vehicle with the hatch up, cheering on her young granddaughter as she was pulled behind the vehicle in a toy car. The grandmother was also impaired during this event (ideally, one would hope a sober person would not think a drunk driver pulling a child in a toy car behind a real car up and down the road was a good idea). The article mentions that the grandfather has been charged with Driving under the Influence, driving with a suspended license (similar to North Carolina Driving While License Revoked) and cruelty to a child. The Grandmother also faces cruelty to a child charge. From a Raleigh DWI Lawyers standpoint, I obviously do not condone this conduct. Driving While Impaired North Carolina is a serious charge and can be risky to yourself and those with you and/or around you. That being said, the DWI laws in North Carolina have become so strict that individuals who arguably were driving without signs of impairment (certainly less then those that insist on texting while driving or putting on make up as they drive) are catching serious charges with serious sentences. However, in this instance, I'm certain the grandfather will face very serious consequences for his actions. Not being familiar with Florida law, I can't say for sure, but certainly here in North Carolina he would be facing a jail sentence. It is never advisable to Driving Under the Influence North Carolina, but if you do, contact a local DWI attorney to best advice you on how to proceed. 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.

Raleigh Criminal Court | Missing Your Court Date

Recently, I was in a North Carolina District Court where I was having a discussion with a Judge regarding those Defendant's who have missed their court dates. As one of the Raleigh DWI Attorneys and Raleigh Criminal Lawyers, I handle this type of matter more then I would like. You see, when a Defendant misses their court date, a North Carolina Criminal Defense">North Carolina Failure to Appear will be marked on the 'shuck' (the envelope which contains the Defendant's paperwork) which carries with a $200 fine. After a few weeks, for most matters (the exceptions being minor traffic matters) an 'Order for Arrest' will be issued at which point the police can arrest the Defendant and bring them before a Magistrate where a bond may be set, which would have to be paid before the Defendant could get out of jail. Additionally, the court will notify the DMV of the Failure to Appear, and after notice is sent out to the Defendant, their license will eventually be revoked. Unfortunately, for clients of mine who have been charged with North Carolina Driving While License Revoked, it was a result of a missed court date and they were unaware that their license had been revoked. If they are convicted of the Driving While License Revoked, their license will be suspended for one-year. So, something as minor as a seatbelt ticket can result in court costs and fines from that ticket, costs and fines from the new Driving While License Revoked ticket, $200 FTA fee, and potentially having your license suspended for a year. As you can see, the judicial system takes very seriously a Defendant's court date. They take it seriously because it would be too detrimental to do otherwise. If they didn't take a hard line requiring the Defendant's attendance, then some individuals would abuse the system. That being said, I feel there could be more consideration taken to those who honestly couldn't make it to court. Though a Raleigh Traffic Ticket, Raleigh DWI Charge or Raleigh Criminal Charges are very serious, it is likely not the only thing in the Defendant's life for which requires their attendance. I believe the court tries to strike a balance by considering Motions for a new court date, but the court seems less receptive to most explanation short of a medical and/or family emergency. "But, what if I can't make it that day?" Well, in many cases, the court doesn't really care. If there are legitimate emergencies which prevent a Defendant from coming to court, then the court may continue the matter, but only with the representation of an Attorney to stand in for the Defendant. Additionally, if a Defendant does miss a court date, they have the option of filing a motion for a new court date, at which point, the Judge may or may not grant that motion. If not granted, the Defendant is left with little option but to turn themselves in. This can be a very serious matter and therefore a Defendant should do everything they can do appear in court and if not, speak with the Raleigh Criminal Defense Lawyers who represents them BEFORE THEIR COURT DATE! 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.

Thursday, April 26, 2012

Raleigh DWI Trial | Why Not Go To Trial?

Recently, I was having lunch with another North Carolina DWI Attorney. Included in this Attorney's practice is Raleigh/Durham DWI Defense. I was explaining to him a case I had coming up the following day. As we went over the facts, I explained to him that I intended to call this matter for trial. He reiterated to me the facts of the case I had just explained and asked me what there was to have a trial on. I explained to him my strategy for trial and that was the end of the conversation. As it turned out, neither of us were proven correct as I didn't get to trial. Rather, the Prosecutor was forced to dismiss my client's North Carolina DWI Charge due to the fact that the Police Officer was in training the day of trial and would not be able to make it. Now, when this normally happens, the State would just ask for a continuance, the Judge would grant it, and the State would get another opportunity to get their Police Officer in for this Durham DWI Trial. In this particular case, I had already called it for trial before and at that time, the Officer wasn't available, so the State was forced to continue it, and the Judge explained that it would not be continued again. Fast-Forward to the new court date, Officer isn't available, and the Judge denied State's motion. Though the State has the option of re-charging my client (which I find totally unconstitutional, but unfortunately, presently acceptable due to case law) my client and me are hoping that this will be the end of the ordeal. I write about this today because it struck me as odd that my friend would think it shouldn't be tried. First, I felt that my arguments I planned to make in my Pre-trial motions to suppress had a decent change of being persuasive, in which case, had the Judge granted my Motion to Suppress, the case would have had to been dismissed or the motion appealed (the latter being the more common practice in this particular county). But, more importantly, I feel like most DWI charges should be taken to trial. I believe there are many reasons for this, but most importantly is, the trial is the unknown; you never know what will happen. You may have a good idea as to what will happen, but can't be sure. But, you may ask, what about pleading them out instead of trial? Well, funny you should (rhetorically) ask. In the counties that I practice (Wake, Durham and Harnett) as I assume in all other North Carolina Counties, the Prosecutor will not plead out a North Carolina DWI Charge to something other then a DWI charge. They will almost always dismiss the other associated charges (like if they originally pulled you for speeding) but not the DWI. So, a Defendant's only hope of avoiding the DWI charge is trial. In my conversations with other Raleigh DWI Attorneys, I am starting to get the impression that my theory is more in the minority then the majority. If true, I find this very upsetting. I charge a middle-of-the-road rate for representing someone facing a North Carolina DWI Charge. My fee is, what I believe to be, a fair representation of the time and effort I put into a case (well, technically, I think I should earn more, but the market being what it is, I do have to be competitive). Every client I get who is facing a North Carolina DWI Charge I spend a good amount of time investigating their case in order to determine whether their are any try-able facts. Even if there is nothing to hang a Defense on, my recommendation is almost always trial, just to see what happens. The North Carolina DWI Sentence the DWI Defendant faces is the same whether they plead guilty or are found guilty. So, unless there are other charges which could be dismissed that the Defendant wants to avoid, the best bet is almost always trial. Which brings me back to my conversation with the other Durham DWI Lawyer. Granted, my client had indication of impairment at the time of the arrest (though not enough, in my assessment) and he blew above the limit. For all intents and purposes, my client was likely guilty of Driving While Impaired. However, I felt there were problems with the stop and the arrest (see my blog post about defending these types of Constitutional issues and why it is important) and decided to have a trial. For my efforts, my client has avoided a DWI conviction (though not without punishment, when you consider multiple trips to court - time and money, my cost, losing his driving privilege for 30 days, $100 for the implied consent offense fee, and he completed a Substance Abuse Assessment in anticipation of a conviction). I guess my point is, this is an instance where due diligence and an eye on trial paid off for my client and should be the practice of all Raleigh DWI Attorneys.

Tuesday, April 17, 2012

North Carolina DWI Law | What to Do When You Decide You've Had Too Many

Alright everyone, let's take today's Raleigh DWI Attorney Blog to discuss those who were smart enough to realize they had too much to drink, but still ended up catching a North Carolina DWI Charge. In the best of all worlds, when someone realizes they shouldn't be driving (and when I say, 'shouldn't' that includes realizing that, though you are fine to drive, you could still be arrested and convicted of a DWI regardless of how you 'feel'). For those who figured out this important fact early, they never get behind the wheel and therefore never run the risk of getting a DWI charge. For those who come to this realization AFTER having started driving, this blog will discuss some very basic advice that should be followed to help you avoid getting a 'Driving' While Intoxicated, even though you are driving.

Once you realize you shouldn't be driving, get off the road as soon as you safely can. Preferably find a parking lot or side street where you can park safely. Once parked TURN OFF THE VEHICLE AND REMOVE THE KEYS FROM THE IGNITION! Under North Carolina DWI Law, a Driver can meet the element of 'driving' in the North Carolina Driving While Intoxicated law by having the keys in the ignition and the car running. I have even seen convictions for keys in the ignition and the car NOT running.

Next, get OUT OF THE DRIVER'S SEAT! It's hard to argue that you were driving the vehicle if you are not behind the wheel!

Then, either sleep it off, or call someone to come pick you up.

If the Police were to come by, here are some basic things you need to remember. First, DO NOT ADMIT ANYTHING, but especially do not admit DRIVING! If you have followed these simple suggestions AND you don't admit driving, it will be hard for the State to prove that part of a DWI charge, which will be required for a conviction. If the Police Officer asks you to perform any Field Sobriety Testf and/or ask you to blow into a portable breathalyzer, can you refuse those as well. In fact, the only thing you cannot refuse without consequence is the Intoxilyzer, which is the machine they have you blow in AFTER you have been arrested. If you refuse, you will have your license revoked for 1 year, so it's up to each person whether they refuse or not. However, if you have done what this Raleigh DWI Lawyer suggested and turn off the car, remove the keys, get in the passenger seat or back seat, then you've already done yourself a great favor. With the addition of "Laura’s Law" a DWI Conviction is getting more and more serious, you want to do your best to avoid it!

If you have received a Raleigh DWI Charge or other North Carolina DWI Charge in the area, and are in need of a good Raleigh DWI Lawyer, feel free to contact me at 919-335-5291 to discuss your case for free!

Tuesday, April 3, 2012

North Carolina Criminal Law | YOUR Court Date!

Back again to posting about my experience as a Raleigh DWI Lawyer and Raleigh Criminal Attorney. Today I found myself in a familiar, if not uncomfortable position. I was in court this A.M. for a court-appointed client. I waited one and a half hours for him to arrive, which he never did. I made a motion to continue the case, however the Judge denied my motion and issued an Order for Arrest. The Judge may have been willing to grant my motion had my client gotten in touch with me before his court date to let me know WHY he was unable to attend today. As it was, I had to admit to the Judge that I have had no contact with this client and could offer no explanation for his absence. To add insult to injury (which I obviously didn't share with the Judge) this client was over an hour late to his previous court date.

I realize coming to court is a big inconvenience. It's schedule during the week, when most people are working. To take time out of your work/life and come sit in a boring courtroom is nobody's idea of fun. But, regardless of how inconvenient it may be, it is still a REQUIREMENT that you attend. This is your court date, and your appearance is mandatory for most North Carolina Criminal Charges.

If, for some reason, you are unable to attend, it is imperative that you contact your Attorney BEFORE your court date so they may have a chance of getting the case continued without you present. Otherwise, you need to be seated in court, on time.

Something to consider, other then having an Order for Arrest being issued against you, is what your Failure to Appear in court can mean for your case. Your Shuck (the envelope which contains all the paperwork about your case) will be marked that you missed your court date. This is something that District Attorneys AND Judge's look at. They pay particular attention to it when being asked for a lenient plea or sentence for that individual's case. The court's position is, everyone else who is required to be there for your case was present, so why weren't you?

So, as a recommendation, do not miss your court date, and if you have something come up, contact your Raleigh DUI Attorney or Raleigh Criminal Attorney as soon as possible!

Friday, March 30, 2012

North Carolina Criminal Law | Catching a Break

Well, it's been a bit, but I am back to posting on the Raleigh DWI blog (hopefully a little more often then lately). I wanted to share with those that follow my blog about some sound advice that, for some reason, can sometimes fall on deaf ears.

Though I enjoy my practice as a Raleigh DWI Lawyer and Raleigh Criminal Lawyer, recently I have been attempting to take on more juvenile cases. This interest in helping the youth of our society has been something I have had an interest in since High School. Even back then, I volunteer as a Teach Assistant to a second grade class while I was a Junior in High School. I also volunteered as a 'Big Brother' to a young man in my community who was going through a tough time.

Not too long into my career as an Attorney, I decided that I wanted get back to giving back to our community by volunteering with youth focused programs. I actively participate with the Capital Area Teen Court Program as well as the North Carolina Bar Associations Lunch-with-a-Lawyer program. Through my participation with this program, I realized I could be doing more by trying to focus a part of my practice to representing juveniles and young adults facing their first offense.

Most of my cases stem from North Carolina Marijuana Possession, property crimes, and other minor misdemeanors. I make it a point to discuss with my clients the seriousness of their charges and what it is they could potential face if convicted, including what it will mean for the future.

In most cases, I can normally arrange my client to participate in some form of a first offender's type program which can lead to the charges ultimately being dismissed against them. These potential dismissals should serve as a wake-up call to my young clients as to the 'bullet' they just dodged and I encourage them to stay on the right path (which is also a requirement while they are participating in these programs).

Recently, I had a client who hired me after being charged with Misdemeanor Possession of Marijuana and Misdemeanor Drug Paraphernalia. I had made arrangements for this client to participate in my beloved Teen Court, which would have led to having her charges dismissed. Three weeks after hiring me, I received a frantic call over the weekend. My client was not only arrested with more Marijuana, but the levels were such that she faced two Felonies and another Misdemeanor charge.

Obviously, my client was upset, as was her mother. Though my client now faced some serious consequences which could have serious ramifications on the rest of her future, I was able to get both felonies and the new misdemeanor dropped after discussing the case with the D.A. (there was some issues with the stop).

I guess this blog is just a reminder to those out there who may have caught a break and were able to get a sweetheart deal in criminal court to not mess up again as it is not nearly as easy to avoid new charges once you have gotten out of some before.

Good luck out there!

Thursday, March 1, 2012

North Carolina DWI Law: Your Right to Refuse

I believe I have cased over this topic in previous blogs, but this is of such importance, I feel I need to go over it once more (and probably will periodically in hopes of it helping potential DWI Defendant's). For those faced with a North Carolina DWI Stop, and specifically a Raleigh DWI Stop many things happen very quickly for which you are likely not prepared for. As a Raleigh DWI Lawyer and Cary DWI Lawyer, most of my clients address their concerns with me regarding what happened during their stop and what it means. What I am speaking about specifically is the questioning, the pre-exit tests, Field Sobriety Test and the Portable Breathalyzer Test. Obviously, there is more to a DWI stop (and eventual arrest) for which a Defendant can be confused, but this article is going to focus on the pre-arrest steps that the Police Officer takes and what options you have available for you.

First, and most important, ALL requests of the Driver which occurs prior to the Driver being arrested CAN (AND SHOULD) BE REFUSED! That's right, refuse to answer questions, refuse to participate in pre-exit tests (normally in the form of counting, alphabet or finger dexterity tests), refuse to participate in any Field Sobriety Tests and refuse to blow into the Portable Breathalyzer Test (not to be confused with the Intoxilyzer or Intoximeter, which are the machines you blow in after your arrest). Each and every one of these functions of a DWI stop are done voluntarily and you have the right to refuse to do any of them. Though you may still be arrested if you refuse to participate, you are doing yourself a favor by refusing in assisting me with your North Carolina DWI Defense.

You see, these tests serve two purposes for the Police Officer: 1. they allow them to build enough evidence to find Probable Cause to justify your arrest and 2. they are used as evidence against you at your trial and/or North Carolina DWI Sentencing. Most people do not know that these questions and tests are participated in voluntarily and normally agree to do them for one of two reasons; either because they believe they are required to cooperate or they believe it will help them with their ticket. The fact is, there is no requirement to consent to any of these tests and no requirement to answer the Police Officer's questions. Additionally, unless you stone-cold sober, chances are performing these tests are not going to get you out of being arrested and certainly will not help if you have been drinking.

Worse then these misconceptions about what a Driver is required to do is the fact that Police Officers are aware that people have the misconceptions and use that to their advantage. I can't tell you how many times my clients have told me that an officer "asked" them to perform a test by simply saying "I'm going to have you perform some tests, okay?" The phrasing carries with it the tone that the Officer is acting within the scope of what they can have you do. I've even had one client tell me his Officer told him "I'm going to have you perform one more test, then I'll probably let you go." The Officer said this after each of the three Field Sobriety Tests and, as you can guess considering he is my client, ended up arresting him.

Lastly, just to be sure we are completely clear, what I have recommended with regards to refusing to participate in any pre-arrest questions and/or tests does not carry over to post-arrest where the Driver is asked to blow into the Intoxilyzer or Intoximeter. This request to blow is done under North Carolina's Implied Consent Law and carries with it a mandatory one-year suspension of driving privileges if you refuse. Additionally, the Driver will not be able to get a Limited Driving Privilege for the first 6 months. Lastly, if the Driver refuses, the Officer can still get a warrant and draw their blood for evidence. For these reasons, whether to refuse the Intoxilyzer or Intoximeter is a personal decision which every individual needs to make and I make no recommendations one way or the other.

So, if you are ever facing a DWI stop, remember to refuse to answer any questions and refuse to participate in any tests.

Wednesday, February 8, 2012

North Carolina Criminal Court | Why Is This Taking So Long?

This morning, I was sitting in Raleigh District Court on a small matter for one of my clients. As a Raleigh DWI Lawyer and a Raleigh Criminal Attorney this is something I do often, whether for a Raleigh DWI Ticket or a North Carolina Criminal Citation. As I was waiting for my turn to address this issue with the District Attorney, I overheard comments made by the gentlemen seated behind me in the general seating area for the general public. "Five minutes and they have only called up one case." "I've been here for almost an hour and they've only gone through 5 cases." "Why is this taking so long?"

The funny thing about these comments was, in the hour in which I was in court this morning, and these comments were being made continuously, the number of defendants in this same area was cut almost in half, even though the Judge probably only called up 10-15 cases (the calender for today probably had 80-90 names on it). The reality is, while these guys were sitting their complaining about what they thought was inactivity on the part of the court personnel, the reality was A LOT was going on right in front of them. Therefore, I decided today's post would be about what appears to be happening up front at court, and what really is going on.

Let me start by saying, not only have I observed the efforts of the District Attorneys, the Clerk of Courts and the Judges as a Defense Attorney, but also as a former Prosecutor, I know exactly what the District Attorneys are doing and why they are needed some consideration.

First, EVERY case on the calender that day MUST go through the District Attorney. Even if it is a simple continuance or guilty plea, the District Attorney must at least be made aware of what is attempting to be done with that case and either agree to it or put it up in front of the Judge for a ruling. So, when those 80-90 (or many times much, much more) names are read of at the beginning of court during Calender Call, remember that each one of those the District Attorney will have to deal with that day. And before you start complaining about how the State should provide more District Attorneys to move court along faster, I don't know that anyone would agree more then the District Attorneys themselves. Sadly, due to budget constraints and the public's opposition to Tax increases, these are how the court will have to be operated.

Second, though it may appear that the District Attorney isn't doing anything, the reality they are doing A LOT. If they aren't talking to Defendant's who are representing themselves, they are negotiating with the many Criminal Defense Attorneys there, or processing paperwork for the Judge and/or Clerk of Court. Even if the District Attorney is just sitting there looking at his/her computer, chances are they are looking at a Defendant's record to make a decision on how to handle the case.

If you ever look at the demeanor of the Defense Attorneys who are present in court, you'll notice they are not frustrated or mad at how long it's taking for their case to be handled. These attorneys, who do this for a living, know what is going on and try to be as helpful to the D.A. as possible.

So, next time you are in court, try and think about what the court personnel are attempting to do and be as patient as you can be.

Wednesday, January 25, 2012

North Carolina Limited Driving Privilege| Out-of-State DWI Conviction

Recently, I was hired to assist a client who had received a DWI charge (well, technically, it wasn't called a DWI, but it was a similar charge) in another State. So, this client, who learned I was a Raleigh DWI Lawyer and a Durham DWI Lawyer through a mutual contact, reached out to me. This client completed the court ordered classes, paid his fines and court costs, and refrained from driving during the 6-month period in which he was ordered not to drive due to his conviction in the other State. Now, 8 months after the date of his conviction in this other State, he received a letter from the North Carolina DMV indicating his driving privileges here in this state were being suspended for ONE YEAR! Now, had he been convicted under North Carolina DWI Sentencing Structure statute (N.C.G.S. 20-179) he would have faced a one year suspension, however he wasn't convicted in NC. He was convicted under the statute of another state and paid his debt to that society for having driven intoxicated in their state.

Now, North Carolina decided to add to his burden by suspending his driving privilege here in North Carolina just for having been convicted of a charge similar to NC's DWI law in an entirely different jurisdiction. Alright, well, then, we need to get him a Limited Driving Privilege so that he can get back on the road as soon as possible; easier said then done. Though most Limited Driving Privileges in North Carolina are straight forward, one for an out-of-state DWI conviction is a monster all it's own. For starters, the fee is $250, instead of the usual $100 for other L.D.P.'s. Second, this has to be done through the civil division of the court (as oppose to the criminal side) since this isn't a court-ordered suspension, but rather a DMV-ordered. There are a couple more documents that must be filled out and the privilege must be approved by the Chief District Court just as oppose to any District Court Judge who would normally approve a Limited Driving Privilege.

However, what I found most telling about this little oddity was the lack of information available on it. I spent most of a day chasing around all the required documents, approvals and signatures in order to obtain this order. At every turn, no one seemed to have an understanding on how these are done. When speaking with other local attorneys, they (like myself) seemed confident that it was just like any other L.D.P. (some speaking with an absolute certainty). When discussing with the D.A. on what I was doing, as well as a Judge, both indicated there was no special requirements for what I was attempting. Additionally, when talking with the Clerks Office, the always helpful staff were at a loss on how this was done. It wasn't until I was directed to the Civil Division that I finally was told what all was needed.

Fortunately, I already had the necessary paperwork aside from the Petition and Civil Filing Form. So, aside from having to wait on the approval of the Chief District Court Judge and the added cost I had not anticipated, I was able to procure the Privilege for my client.

So, this blog post is to serve as a warning to other North Carolina DWI Attorneys attempting this great feat. Best of luck to you!

Wednesday, January 11, 2012

Why I Love Being a Criminal Defense Attorney

I have a confession to make, I enjoy the practice of Criminal Defense. As a Raleigh Criminal Lawyer and Durham Criminal Lawyer in North Carolina, I represent those charged with a crime, whether it's North Carolina Traffic Cases, North Carolina DWI Defense, North Carolina Misdemeanor cases or North Carolina Felony cases. As per the explanation I have heard from many people, I defend the 'scum of the earth.' Since deciding this was my area of practice as an attorney, I have heard from friends, family and even total strangers that my chosen profession is 'wrong,' 'despicable,' I've even been told what I do is "what's wrong with America." I try to have a legitimate discussion with these individuals to explain my decision to practice criminal defense. Sometimes, these discussion go well, other times they do not. In either case, publishing an article which conveys the rational of this Criminal Defense Attorney might provide some insight to those who otherwise do not understand, and certainly do not approve of, defending the accused.

I have known that I wanted to be a Criminal Defense Attorney ever since I took criminal law and evidence in law school. However, I didn't know why this profession was so important until I studied Constitutional Law. It is the Constitution which provides every one of us the freedoms which we enjoy today. Most people take these freedoms for granted, mainly due to the fact that they are not faced with a situation where these rights would protect them. Nevertheless, these rights remain available should they be needed. Examples of these rights include the Fifth Amendment right against self-incrimination and due process, the Fourth Amendment right against unreasonable searches and seizures and the Sixth Amendment right to counsel.

These Constitutional Rights were designed, and are upheld, in an attempt to ensure that innocent people are not convicted as a result of forced confessions, lack of legal representation or lack of due process. And though our system is imperfect, in that innocent people are still convicted, these Constitutional Rights are the best balance of providing protections to those accused while at the same time not overly limiting the Government's attempt to identify, arrest and ultimately prosecute those who are criminally responsible.

The beauty of these rights and how they are applied today is that not only are they the result of the brilliant minds of our forefathers who draft the Constitution, but they are applied as a result of centuries of caselaw precedent. What this means is, since their inception these rights have been argued in countless trials where a ruling was made as to exactly how they should be applied given certain facts. These rulings have been evaluated by higher appellate courts, including the Supreme Court of the United States. That means that an unimaginable number of legal scholars, from Defense Attorneys and government Prosecutors to Judges throughout the court system have come together to make a determination in exactly how they should be applied. And though occasionally precedents are overturned when given new facts, that should only provide greater comfort in knowing that, though not common, they can be overturned if circumstances have been changed since the precedent was set. As an example, think of how the internet has changed countless laws with regards to copyright, defamation, libel, Fifth Amendment, harassment, etc.

I mention these rights as they are what a Defense Attorney is truly defending. In my numerous discussions with those that have a problem with Criminal Defense, the other party normally falls into one of two categories: 1. they feel too many rights are given in our system and Criminal Defendants should have less protection or 2. they feel the rights are adequate and should be upheld, unless the Criminal Defendant is 'obviously guilty.'

As for the first category, these people normally hold this perception because they believe they would never face criminal prosecution and therefore the limitation of these rights would never apply to them. However, too many times innocent people are suspected of crimes and without these rights in place, they could face prosecution and ultimately conviction without these safeguards in place. A simple matter of 'wrong place, wrong time' can result in an innocent person being accused of crime. And as careful and lawful as one can attempt to live their life, there is ALWAYS the chance of a mistake identification or chance encounter which can turn a person's life upside down. As example, would you really feel comfortable if an Officer had the right to stop you on the highway solely because you look suspicious, search your car because he/she feels like it, and arrest you without first having established Probable Cause?

As for the second category, this idea of different standards for different people is a narrow, and more importantly incorrect view. These Constitutional Rights work only if EVERYONE is afforded the same protection. These rights are given to us by the Judicial Branch and limit the function of the Executive and Legislative Branches of our government in their handling of Americans. If the Government could all-of-a-sudden make their own determination of what rights are given to what Defendants, than the power of determining what limitations could potentially prohibit the prosecution of the Defendant is given to the same government entity who's job it is to prosecute the Defendant. In other words, the Prosecutors would be permitted to determine what Rights, and more specifically what potential problems with their case there are and whether they would permit the Defendant to utilize them. Though most people cannot imagine themselves in a place where they could potentially face criminal prosecution, in the oft chance that you are, would you really like that kind of power to be held by those entrusted with your prosecution?

As mentioned before, everyone sharing the exact same rights as everyone else is the only truly fair way to ensure our system is operating as effectively as possible. Do guilty Criminal Defendants get off as a result of these Constitutional Rights? Absolutely. But the second that our system overlooks a misstep by the Government (whether in the Police's attempt to gather evidence or with the Prosecutor's handling of the case) in order to convict an 'obvious' guilty Defendant, than forever will the same opportunity to 'overlook' these mistakes be available to those who are not so obviously guilty.

Though this discussion has many more facets and areas which can be debated, this was simply a taste of what justification I have, to do what I do with my head held high.