Monday, July 30, 2012
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
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
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.