Wednesday, May 30, 2012
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 http://mathesonlawoffice.com/north-carolina-criminal-defense/, 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
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
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.
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.