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Wednesday, August 14, 2013

North Carolina DWI Law | Bumcombe County DWI Repeat Offender

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

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

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

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

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

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

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

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

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

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

Tuesday, July 23, 2013

Raleigh Traffic Law | The 'Flashing Light' warning

So, I recently got to read an article about a Missouri Driver who was cited for flashing his headlight to warn oncoming of a speed trap down the road.  As is a common practice among motorist, this driver observed a Police Officer on the side of the road checking people's speed with a radar gun.  The Driver decided to flash his headlights to oncoming traffic so they would be aware of the Police Officer and ideally would slow down (which is what the police want in the first place, right?).  The same police officer ended up pulling this driver over and ticketed him under some obscure local law dealing with flashing lights on certain vehicles.

As is completely and totally appropriate, the Driver has filed suit against the city for violating his free speech rights.  As his attorney explained in the article, his conduct of flashing his lights would be no different then stopping into a truck stop and mentioning it to other drivers.  The Government is EXTREMELY limited in it's ability to infringe on an individuals' free speech.  From the perspective of this Wake County Traffic Attorney, flashing his lights was a form of communication that the State has no justifiable reason to try and deter. 

Apparently, this was not the first time an individual was ticketed for flashing his lights.  There was a driver in Florida who filed suit in to 2011 for the same reason.  Apparently, that case was dropped after that police force issued an order requiring their officers to not issue tickets for someone flashing their lights.

Certainly, it can be frustrating for the Police Officers, when they are attempting to conduct traffic safety patrols and their efforts are thwarted by the public communicating with each other; here's the problem with that position.  1. The Police have A LOT of advantages in their efforts of citing and apprehending individuals for traffic and/or criminal matters.  The sheer wealth of knowledge they have with regards to investigating and the requirements to meet standards of proof put the general public at an extreme disadvantage, let alone all of the technology, research, etc. they have at their disposal.  2. A driver flashing their lights hopefully has the effect of causing drivers to slow down, and isn't that really the reason for the police presence on the road in the first place (at least, one of the reasons).  Unless, of course, it could be to issue tickets and generate revenue, but certainly that's not the case.

Honestly, all joking aside, this action by the police is disturbing.  There was no good reason for the police officer to pull this driver over and issue a ticket.  Their conduct, in no way, jeopardized other drivers, and did no violate any laws.  The only logical conclusion was to punish this driver, and deter others from the same conduct. 

If you are in need of a Wake County Traffic Attorney, the Matheson Law Office would be happy to discuss your case with you and provide you with a Free Consultation.  Contact us at 919-335-5291 and we'll go over your case with you.

Thursday, July 11, 2013

Raleigh DWI Law | Know Your Rights!

So, over the past few weeks I have been asked by several people about what actions they or others took during a traffic stop and whether they were correct or not.  There is a lot of confusion on what a driver can and cannot do during a traffic stop.  As a Raleigh Criminal Defense Attorney, I try and make sure my clients are aware of their rights, but if they are hiring me, it is often too late to preserve their rights for the present charges.  Therefore, I'm going to write this blog about what a driver should do during a traffic stop.

First, let me be clear that this post is for all traffic stops, not just DWI (even though it is on a DWI blog page).  Second, at no time do I recommend a driver to be short and/or rude with a Police Officer.  Regardless of what you may think of their conduct or whether you deserved to be stop or not, these are people just like you that are doing their job; it's never personal.   Additionally, being rude is almost a guaranteed way to make matters worse for you.

Okay, first thing everyone needs to know is YOU DO NOT HAVE TO ANSWER ANY QUESTIONS!  Some people think that if they have not been read their Miranda Rights, their statements cannot be used against them.  Miranda Rights only come into play once a Defendant is in custody AND they are being questioned by police (i.e. 'spontaneous statements,' even if made while in custody, are still admissible).  When a Police Officer approaches you and asks you a question, there is NO obligation that you answer it.  My recommendation to my clients is to politely tell the Officer "I respect what you do, but I refuse to answer any questions."

Second, YOU DO NOT HAVE TO CONSENT TO A SEARCH!  Whether the Police Officer asks for your consent to search your person or your vehicle, you are under no obligation to consent.  Now, it's important to remember that consenting to a search and prohibiting a search are two entirely different things.  Under many circumstances, a Police Officer may be able to search you, your vehicle, your home, etc. whether you consented or not.  However, if they lack any of the permissible reasons to search, then your consent is the only way they may be able to forward their investigation.  Now, I often hear people say, "I have nothing to hide, so what's the harm?"  Unless you are the only person in constant possession of your vehicle 24 hours a day, 7 days a week, is it really worth the risk?  That valet, mechanic, friend, family member, etc. may have left something in your car that you were unaware of but you may be responsible for if it is found.  Also, it's worth noting that I have had clients share with me that Police Officers have tried to persuade them to consent by using statements like "I'm going to search your vehicle, okay?"  or "If you provide me with the (contraband) I'll only cite you, if I have to get a search warrant, I'm going to arrest you if I find anything."  Ultimately it up to you whether you want to comply, but in many cases, the State may have not have had a case against the Defendant had they not consented to the search.

Third, YOU DO NOT HAVE TO PERFORM ANY FIELD SOBRIETY TESTS!  Obviously this deals with Driving While Impaired more then any other traffic matter, but it also very important.  The tests the Police Officer asks you to perform after the traffic stop, but before the arrest, are referred to as the Field Sobriety Tests.  This can involve what is known as 'Pre-Exit Tests' which may include counting or the alphabet.  Also included are the better known 'Standardized Field Sobriety Tests' which includes the Walk and Turn, the One-Legged Stand and the Horizontal Gaze Nystagmus tests (eye test).  Additionally, the hand-held breathalyzer (commonly referred to as the 'Alcosensor) is included in the list of things you are not required to perform.  Each one of these tests is used by the State to try and build evidence against the driver in order to convict them.  Unless you are stone sober and have not had anything to drink, it's not recommended that you perform any of these tests.  As mentioned before, I have received reports of some pretty tricky ways Police go about trying to convince drivers to go along with the tests.  Statements like "I'm going to have you perform some tests for me, okay?"  Or my favorite was "I'm probably just going to let you go, but do this one test for me so I can be sure."

I want to put in an important exception here: I am not recommending either way whether you should blow in the  Intoxilyzer.  The Intoxilyzer is the machine the Police ask you to blow in AFTER you have been arrested.  It is a big machine on a table top and takes place at a Police Station.  The reason I do not make a recommendation is, unlike everything else I have mentioned, there are consequences that come with refusing to blow in this machine.  A refusal will lead to 6 months of license suspension.  Additionally, the fact that you refused is admissible in court as a 'guilty conscious' and the State may end up drawing your blood anyways, so the refusal may not have done anything to assist you.

Now that we have discussed what you don't have to do during a traffic stop, let's talk about what you MUST DO.  First, you must provide the Police Officer with your license and registration.  By driving on a North Carolina street or highway, you consent to present these documents whenever requested by the Police.  Second, if the Police ask you to exit your vehicle, you are required to do so.  This request is being made for the safety of the Police Officer and refusal to exit will likely lead to a forced removal and a charge of Resist, Delay or Obstruct a Police Officer.    Third, if the Officer tells you they are going to search your person, car, or ask you to stand or sit in a certain location, you are required to comply, even if you haven't consented.  Again, there are many circumstances where a Police Officer may have the right to search  you or your vehicle and refusing to consent won't change that, however refusing to comply will likely lead to an Obstruction charge.

So, these are the basics of how best to handle traffic stops.  Certainly there are many other things that can affect the likelihood of a Driver being convicted beyond what actions they took after the stop.  If you are facing a Wake County Traffic Ticket, DWI Charge or Criminal Charge, contact the Matheson Law Office for your free consultation.

Tuesday, July 2, 2013

Raleigh DUI Law | Use of 'Fake' Checkpoint Signs

So, recently in the news, I read where police officers in Cleveland, Ohio were using a ruse to try and apprehend individuals who may be driving on the road with drugs in their possession.  Having handled many kinds of Wake County Checkpoint Cases, I am aware of the restrictions the Police were operating within and how this little ploy was used to somewhat circumvent restrictions on their ability to randomly stop individuals on the road.

In this particular case, the Police Force posted signs on a busy road indicating that a drug checkpoint with drug-sniffing dogs was ahead.  The problem is, there is no such thing as a drug checkpoint.  Under restrictions placed by our courts, including the Supreme Court, there are a limited number of reasons police can randomly stop drivers for a checkpoint.  In North Carolina, the police are only permitted to utilize checkpoints to investigate for drunk drivers or to check driver's licenses. 

So, if they cannot actually set up a 'drug checkpoint' what's the point of putting up signs indicating there is one ahead?  Well, within proximity of those signs, police are staked out to see if anyone does a quick U-turn or throws something from their window, which may indicate they are scared of being caught at the checkpoint with drugs.  See, since the majority of people do not realize that 'drug checkpoints' are illegal and unconstitutional, they assume the police to be truthful with these signs and act accordingly.

Okay, so this is creative and may not run afoul of the courts precedent that the checkpoint itself is not permitted.  However, there are a couple of issues this Raleigh DWI Defense Attorney has with this approach.  First, there is something inherently wrong with the police lying to the general public.  As disconcerting as it may be to everyone, the truth is police can lie.  If they are interrogating you, they can make up facts to try and persuade you to confess.  And while I do not approve of those practices, at least it is tailored to suspects.  However, by posting false information, in the hopes that individuals will 'show their cards' is something entirely different.  I kind of look at this as 'The Boy Who Cried Wolf.'  If the public comes to not trust signs posted by the police because they could be lies, what else should the police not trust in the conduct of their police? 

My second issue with this approach is there seems to be some inherent risk of some presumed 'reasonable suspicion' based on actions the police may not like.  You see, in order to justify a stop, regardless of the circumstances, the State must have articulable reasonable suspicion in order to justify the stop.  This is related to the 4th Amendment of the U.S. Constitution which prohibits unreasonable searches and seizures (the exception, of course, are the checkpoints).  So, when the police are staked out, looking for anyone who may want to avoid the imaginary checkpoint, or who otherwise may be doing something totally unrelated to the checkpoint, could be stopped because the police are purposefully looking for actions that otherwise may not amount to reasonable suspicion of criminal activity.  As was the case with a recent driver stopped during this checkpoint.  He reported that he pulled over to the side of the road twice to check his directions and was stopped by the police.  It wasn't until the drug dog came and they searched his car did the police realize that he was not transporting drugs and was being truthful when he explained his reason for stopping.  This individual was stopped for nothing more then because safety-minded by pulling over before verifying his directions - that does NOT amount to reasonable suspicion of criminal activity.

If you are facing a Wake County DWI Charge and are in need of quality legal representation, contact us at the Matheson Law Office for your free consultation.  We will be happy to discuss your legal options and ensure your rights are preserved.

Friday, June 28, 2013

Raleigh DWI Defense Attorney | Limited Driving Privilege Article on WRAL News

So, today's blog is going to be more of a vent fest then informative due to my frustration over a recent article on WRAL News.  The article in question, which can be found here, is suppose to be an investigatory piece on people who are operating a vehicle under a Limited Driving Privilege who may or may not be adhering to the restrictions placed on these Privileges. 

Now, as a Wake County DUI Attorney, I have drafted hundreds of these privileges and explained them to my clients so that they understand the restrictions they must adhere to.  Where a problem may arise is the section which permits driving from 6:00 am until 8:00 pm for 'work, school, or household needs.'  This is a a bit of a subjective concept as what constitutes 'household needs' can differ.  In all honesty, I do not believe that most police officers expect these drivers to not drive for anything but work, school and maintaining a house.  Even if they did, could getting gas for your car constitute maintaining a house?  What about going to the post office?  Restaurant?  etc.  I would like to believe that so long as they aren't driving after hours or on the weekend when they aren't suppose to, that the police would give them a break.  That being said, I'm certain there are some police officers out there that would cite someone for going out, during the week, within the hours, for some reason that the officer does not believe qualifies under the Privilege.  So, it comes as no surprise to me that the WRAL article found that of the 216 people charged with violating the privilege last year, 142 of those cases were dismissed.  I would assume that in those instances a DA looked at the facts and decided that it didn't rise to the level of criminal and/or that a trial would be a waste of taxpayer money trying to prove that the Driver wasn't operating within the Privilege.

Now, that being said, those that are caught driving after hours, or weekends for reasons other then permitted is a different story.  Driving is only permitted during those days and times by written approval of the Judge for work or school needs, community service or to attend their Substance Abuse Assessment treatment as was court ordered.  I tell my clients that they better being coming to or from these locations otherwise they may get cited.

Anyways, back to the venting, what I first found frustrating was the way this article portrayed these individuals as flaunting their DWI judgment.  A DWI conviction is a serious matter from a serious mistake.  I will never make light of the act of Driving While Impaired, but North Carolina is already one of the more strict states when it comes to sentencing a DWI and they continue to push to make it harder.  The sentence a driver receives, even on a low BAC, first time offense is extremely serious and can be the same as someone with priors and a high BAC depending on circumstances.  Among the many things that comes with a conviction is a one year suspension of driving privileges.  In this day and age, the idea of not being able to drive for a year is a hard pill to swallow.  Fortunately North Carolina allows drivers to receive a Limited Driving Privilege under very specific circumstances, most important of which is to not have any alcohol in their system while operating a vehicle.  By limiting when these individuals can drive, the punishment continues without completely upending their lives completely.  The fact that these drivers are attempting to continue their lives, after being convicted of a DWI, within the presumed guidelines set out on the Privileges is not something that should be portrayed as snubbing their nose at their judgment.

However, my biggest issue with this piece was the fact that the reporter reached out to Mothers Against Drunk Driving for a quote.  In this quote, it was suggested by M.A.D.D. that, in order to try and prevent these types of 'violations' Drivers should have an 'ignition device' installed on their vehicle which controls when the vehicle can be driven.  Unfortunately, the only 'ignition device' this Raleigh DUI Defense Lawyer is aware of is an 'Interlock Device'.  The Interlock Device prohibits a driver from starting and/or operating their car should they have any alcohol on their breath.  Here's the problem, no where in the WRAL article was it alleged that these various examples they provided of individuals driving on their privilege where after having consumed alcohol.  No where did it say these investigative reporters saw an individual come out of a bar after having a drink then drive on their Privilege.  How in the world would installing an Interlock Device help prevent people from driving, STONE SOBER, outside the prescribed limits of their Privilege. 

No, what was suggested was to further punish those that are convicted of a DWI, utilizing a method that in no way addresses the issue at hand.  The reality is, if a Driver is convicted of a DWI in North Carolina, and it's proven they had a BAC of .15 or above, they'll have to get the Interlock Device regardless.  So, how does requiring a person who blew a .08 (or .07 or .06 - read this for further info) but was otherwise driving safely and did not demonstrate substantial impairment benefit from a device that won't let them drive after having taken cough medicine?

If you are facing a DWI in Wake County, please contact the Matheson Law Office for your free consultation at 919-335-5291.  We are happy to go over your case with you and discuss what options you have available.

Wednesday, June 26, 2013

Raleigh DWI Attorney | Cost of a DWI in North Carolina

So, recently I was having a discussion with my legal assistant about how much a DWI will cost a Driver and how I believe if more people realized the cost and hassle that comes from them, less people would be willing to risk catching one of these charges.

First, let me be very clear, as a Raleigh DUI Attorney, the more serious ramifications from driving while impaired are very well known to me.  The injuries, death, and property damage that can come from an auto accident is very serious and the likelihood of said accident is compounded when introducing alcohol.  That being said, most people do not think they will get in an accident ever, so arguing that point may not be as persuasive as what it will mean to their checkbook.  So, with that cleared up, let's discuss what can be expected if you are charged and convicted of a DWI.

So, for starters, if charged with a DWI, the headaches come fast and severe.  Even in a best case scenario, a Driver can expect they will lose their license for 30 days just for having been CHARGED with a DWI.  Now, most driver's are eligible to get a Limited Driving Privilege after 10 days, but that is still 10 days of not driving just for being charged.  Additionally, the Limited Driving Privilege requires the Driver to get a Substance Abuse Assessment ($100.00), a certified copy of their driving record ($11.00)  and the Privilege itself costs $100.00.  After 30 days, the Driver can get their license back, but that also costs $100.00.  So, just for starters, at a minimum, a DWI Charge will cost at least $100.00 to get back their license, and potentially another $111.00 for the ability to drive 19 of the 30 days of suspension period.

Now, setting aside the cost of a defense attorney (this particular Raleigh DWI Attorney charges $1,500 for representation of a DWI Charge) let's discuss the absolute best outcome a driver could expect if they were convicted of the DWI (this is working on the assumption they don't fight the charge, in which case, they will definitely want a DWI attorney in their corner).  The best possible outcome for a DWI charge in Wake County, and I would assume anywhere else in the other 99 counties of North Carolina, is a Level 5.  While a friends, brothers, former boss may have a story about having it reduced to Careless and Reckless, those days have passed.  Additionally, North Carolina does not offer a 'First-Offender' DWI or a 'Low Blood/Alcohol Concentration' DWI, all DWI's are subject to the same sentencing structure whether it's your first or fifth or you have a BAC of .08 or .28. 

So, a Level 5 DWI carried with a fine of up to $200.00 and normally 24 hours of community service of 24 hours in jail (the Judge can elect to give you more community service or jail, but not less).  Most people elect the community service as they don't want to spend the night in jail, however the community service program costs $250.00.  With the addition of court costs and various other fines and fees that come with a DWI conviction, a Driver can expect to pay approximately $650.00-$750.00 for a Level 5 Judgment with community service. 

In addition to the costs associated with the conviction, there are other costs that come from a DWI Sentence.  First, if not already completed, the Driver will be required to complete a Substance Abuse Assessment ($100.00) and follow any recommended treatment.  If you have already done the Assessment before for the Limited Driving Privilege, then you will not have to do it again so long as you started treatment within 6 months of the Assessment.   The minimum recommended treatment is the Alcohol and Drug Education Traffic School ($160.00) but more intensive treatment may be recommended and cost will go up accordingly.  Also with a DWI conviction, the Driver will have their license suspended for 1 year.  During that period, the Driver may be eligible for a Limited Driving Privilege, with the same requirements as mentioned before, including the $100.00 cost to the court.  Lastly, a DWI conviction in North Carolina allows insurance providers to increase premiums as much as 400% for the following three years.  Therefore, an individual that pays $400.00/year can expect to pay $1,600.00 a year for the next three years (or the additional total cost of $3,600.00 over that three years).

It is also worth mentioning that for individuals with a BAC of .15 or above there are added burdens and costs that I won't get into now.

So, needless to say, even without the cost of hiring a Wake County DWI Attorney or DWI Attorney in your area, you can expect an exuberant amount of costs as a result of a DWI charge and conviction.

If you are need of legal representation in Wake county for traffic or criminal charges, please feel free to contact my office for a free consultation at 919-335-5291.   

Thursday, June 20, 2013

Raleigh DWI Attorney | Silence is NOT Golden for Criminal Defendants

So, recently there was a very important ruling by the U.S. Supreme Court in case that will have far reaching implications for those facing hiring this Wake County Criminal Defense Attorney,  as well as the rest of the country.  The case in questions, Salinas V. Texas, deals with an individual being questioned by police regarding a homicide.  The Defendant in this case was answering questions by the police but elected not to answer one specific question.  As a result, his silence was used to convicted him of murder. 

In this particular case, Mr. Salinas was being questioned by the police, but was not yet in custody.  This is a very important detail due to the fact that had he been in custody, the police would have been required to read him his 'Miranda Warning' prior to questioning him, otherwise his responses, or lack there of, would be inadmissible. 

Now, 'Miranda' can be a bit confusing as most people's understanding of this right derives from what they have seen on Law and Order, and that's not accurate.  It is very common for those hiring this Raleigh DWI Attorney and Criminal Attorney to think their case is solid because they were not 'Mirandized' but that is just not the case.  First, your right to remain silent and your right to have an attorney present for any question is in place regardless of when you are dealing with the police and whether you are in custody or not.  Most people do not realize that they are completely within their right to refuse to answer any questions by the police.  The second, and often times more confusing, issue with Miranda is exactly WHEN the police are required to inform you of your rights.  Even though TV cops always 'Mirandize' Defendants the second they take them into custody, the reality is, that is not required and not often practiced.  The point that police are required to inform you of your Miranda rights is when you are in custody AND you are being questioned by police.  I'm certain it would seem that just out of convenience, police would simply 'Mirandize' the Defendant when they are being arrested and then they can question them once the Defendant decides whether to invoke those rights or not.  The reality is, unfortunately, much more sinister.

Since people believe that, if they are being taken into custody, and have not been Mirandized, that they are safe.  At a minimum, most people believe that their statements can't be used, or worse that their whole arrest will be thrown out.  Actually, not only will your case not be dismissed because you weren't given your Miranda rights when being arrested, but any 'spontaneous statements' you made after your arrest are admissible in court.  'Spontaneous statements' are things Defendants say, after being taken into custody but without any questioning by the police.  Most of the time, these are things said by the Defendant in the back of the cruiser.  What's even worse, police know that most people have these misconceptions, and so they intentionally won't 'Mirandize' the Defendant, not ask them any questions, and record anything they say while in custody. 

This brings us full circle to the ruling in Salinas v. Texas.  The Supreme Court has ruled that a Defendant's refusal to answer a question can be used in their trial as evidence against them.  Now, in Salinas' case, it was a 'significant silence' in that he had been answering the questions of the police, except for one question dealing specifically with shell casing at his residence.  However, the fact that the court ruled the silence is admissible as evidence can have far reaching impacts in other cases.  The State may attempt to argue that any refusal to answer questions is evidence of a guilty conscious, though any defense attorney (including this Raleigh Criminal Defense Attorney) has argued that invoking the right to remain silent is evidences of a guilty conscious, rather it's simply a citizen enjoying the benefit of their Constitutional Rights.  From there, what the sitting Judge may do with this objection given the ruling in Salinas is hard to say.

Regardless, what is most important to take away from this recent ruling is 1. invoke your right to remain silent and to have legal representation early and without hesitation and 2. hire a capable defense attorney to represent your interest there after.

Monday, June 10, 2013

Raleigh DWI Lawyer | Wake County Courthouse's DWI Courtroom Not Adhering to Local Rules

So, for anyone who's ever been through a DWI charge in Wake County, they may have heard a reference to a courtroom '5C.'  As a Raleigh DWI Defense Attorney, I have resolved many cases in courtroom 5C and though it has gone through several revisions recently, it has come to be a tried and true way to try and resolve Wake County DWI trials in an efficient method.

First, for clarification, courtroom 5C is a courtroom set aside just for DWI trials.  Now, in many cases DWI cases are plead in 5C for one reason or another, but for the most part, it's there for DWI trials.  The purpose of courtroom 5C was to allow the State to organize their case so that on the date of trial, they had all necessary witnesses and the case would not be unnecessarily continued taking up the court and the Defendant's time.  This differs from regular district court in that in regular court, the Defendant and/or Defense counsel come to court and if the State is not prepared to proceed to trial that day, the case will be continued.  This option of a continuance goes both ways as the Defendant and/or their defense attorney can continue a case if they are not ready to proceed on the court date.  Obviously, this cannot go on forever, so both sides can eventually run out of continuances and will be forced to proceed with their case at that time.

However, with courtroom 5C, was used to transpire was the State would motion to continue to place the case in 5C, where no date certain would be provided.  Then, at a later point, once the State is certain they can proceed with the case, they set the court date and notify the Defendant.  Well, this Wake County Defense Attorney, along with many others, took exception to this design as the State was being given an unfair advantage in setting the trial date at their leisure.  As a result of the Defense Bar's complaints, Wake County Courthouse changed local rules so that once a matter was set to 5C, and administrative date was set, and on that date, the trial date would be set.  This seemed to be a fair compromise as both the State and the Defendant were provided a date certain for their trial and could plan accordingly.  Unfortunately, this has NOT been how this court has been handled recently.

Five times this year alone, and four in the last month, I have had DWI trials set in 5C.  On those dates, myself, my clients and sometimes my clients family would show up to court on their date ready to argue our case.  On these particular dates, the State was NOT ready proceed with their case and a District Court Judge granted the State's motion to continue to another date for trial.  Now, you may be saying to yourself that certainly the State must have a good reason to continue the case from it's original trial date, which has been in place for months.  Certainly there's some medical emergency or unforeseen circumstances in which the State could not have anticipated and therefore should be given another opportunity to try the case; NOPE!  In each of these cases, the State had to try and continue the case because they failed to subpoena their witnesses; in other words, they weren't prepared for trial.  And in each of these cases, the sitting Wake County District Court Judge granted State's motion to continue.  Could you image if I, as a Raleigh DWI Attorney, stood up for that same Judge, in a courtroom with the State and State's witnesses ready to proceed, and asked to continue a case set for trial for the sole reason that, though I was aware of the trial date for months, I simply was not prepared to try the case because I didn't do my job? 

What's worse, if the Judge had denied the State's motion, the State would have been forced to dismiss the case, but they would NOT be without recourse.  The State enjoys the privilege, not only have being able to set the dates for trials, but also to refile charges against Defendants that have been dismissed without prejudice.  So, the State, if they so chose, could have refiled the charges if they felt strongly enough about prosecuting my clients.

But alas, this is what has happened.  My clients day in court was pushed off for lack of due diligence on the part of the State and the Judges rewarded this lack of preparedness by permitting the case to be continued.  What is especially frustrating about this process is the fact that this is contrary to local rules.  Certainly, Judge's enjoy the discretion in granting these motions, and under unforseen circumstances I would have no complaint.  But the whole purpose of courtroom 5C was to allow the Defendant and the State to be given a date certain for trial in order to prepare accordingly and not waste precious judicial resources by needlessly continue cases over and over as both sides prepare.

So, from here forward, when my clients hire me as their Raleigh DWI Lawyer, I will fight vigorously in opposing in State's motions to move a case to 5C as the State enjoys the benefit of multiple bites at the apple to prepare for trial while the Defendant is left wondering why their case is not being heard when it is suppose to.

Tuesday, June 4, 2013

Wake County Criminal Defense | DNA Swabs of Arrestees

Well, it happened.  The Supreme Court has ruled in the case of Maryland V. King where an individual was arrested for an assault charge when his DNA was taken from a swab of his mouth and was used to convict him of an unresolved rape case.  While convicting a rapist is certainly good for the public, the broader issue of personal security and Constitutional rights against unreasonable searches leaves this Raleigh DWI Attorney with a heavy heart.

The issue at hand in this case was whether the swabbing of the mouth of an arrestee could be taken without first establishing probable cause to procure this evidence through a 'search.'  Now, the State argued that this did not constitute a 'search' in the Constitutional sense but rather that it was more of a booking process like finger printing and photos being taken of arrestees.  However, booking procedures are used to ensure identity of the individual they have in front of them.  If the person arrested gave a false name at the time of the arrest, the Officers can cross reference the name with a DMV photo and physical description and the finger prints can be verified against any prior finger prints taken from the arrestee and/or the person who's name was given.  DNA evidence, on the contrary is very limited in it's ability to verify the identify of the arrestee in that there is no running database of individuals DNA make up in addition to the fact that the testing is expensive makes this argument flawed.

However, regardless of where you may fall on the State's argument, the intrusion involved in this case cannot be understated.  The Constitution provides all people in America the protection from unreasonable searches and seizures.  For various levels of actions performed by the State, they must meet a 'standard of proof' which will justify an action that would otherwise be deemed unconstitutional.  Many people are aware of 'reasonable suspicion' and 'probable cause.'  These two standards of proof dictate when a police officer can stop an individual and when they can search that individual, their car, home, etc.  These standards of proof are in place to try and prohibit the State from acting without restriction in their pursuit of criminals.  We, as the general public, should not live in fear that we will be stopped for no good reason or searched just because.  If the State is unable to prove they had reasonable suspicion to stop or probable cause to search, then any evidence acquired as a result of these stops and/or searches is deemed inadmissible.  The routine swabbing of an individuals mouth to collect their DNA information of an ARRESTEE is unconstitutional and performed without probable cause.

In our great nation, an individual arrested for a crime enjoys the right of being held innocent until proven guilty.  The sheer fact that an individual has been arrested does not, in any way, imply they are guilty of the crime as far as our justice system is concerned.  Unfortunately, in our society, the perception is to the contrary and people assume those arrested are in fact guilty, otherwise why were they arrested in the first place.  However, after handling hundreds of cases as a Raleigh Criminal Defense Lawyer, I can tell you that innocent people do, in fact, get arrested.

Individuals who are arrested, innocent or not, enjoy the same protection.  That protection includes the right which prohibits the State from performing a search without first determining there was probable cause to search.  The probable cause must be that it is more probable then not that the individual being searched or the items searched for, are related to the crime for which the individual is being charged or location being searched.  A routine swab of arrestees mouths is not with probable cause as the State, in most cases, will struggle in proving that the evidence of the individuals DNA makeup would futher assist them in their prosecution of the individual.

I'm certain that many proponents for this DNA swabbing are excited about the prospect of all the cold cases that may be solved as a result of this not, Supreme Court sanction actions.  However, convictions of crimes alone are not enough to justify the State exceeding their reach over our Constitutional Rights.  As Justice Scalia pointed out during arguments, a whole plethora of cases could be solved if we set aside standards of proof and allowed the State to proceed without limitations in their detaining and searching of individuals, but that end does not justify the mean.

As a Wake County DWI Attorney and Criminal Attorney, it has been my pleasure to serve as the defense attorney for individuals facing charges in the Raleigh Courthouse.  If you are in need of a criminal attorney, contact my office for a free consultation at 919-335-5291.  

Friday, May 31, 2013

Raleigh Traffic Law | Recent Checkpoint Activities

Well, it's been a while since I posted, but thought it was necessary to get back on here and add some new insight to the world of serving as a Raleigh DWI Attorney. Recently, there's been an increase in police activities on the roads of Wake County. Mainly, I have seen more and more Wake County DWI checkpoints and license checkpoints in place. These checkpoints are an easy way for the State to try and catch those who could be violating the laws of North Carolina. What many driver's do not realize is what rights they have with regards to these checkpoints or any other traffic stop.

First, the general public needs to understand that your participation with MOST of these stops is voluntary, and your compliance could hamper your Apex DWI Attorneys efforts to avoid a conviction. Under our laws, you are required to stop, produce your license and registration and that is it. If the Police Office asks you to exit the vehicle, you do have to comply as it could be for safety reasons. Beyond those few things, you are not required to answer questions, consent to a search, attempt standardized field sobriety tests or submit to a preliminary breath test. Now, it's important to note at this point that the breath test performed AFTER a driver has been arrested, the one performed on an Intoxilzyer, is voluntary, but does come with consequences should you refuse, so decide carefully whether you want to refuse. However, beyond that, the walk and turn test, one legged stand test, the finger dexterity test, eye test, counting, alphabet, etc. are all voluntary. And the fact that this is voluntary is true whether it's a regular traffic stop or a check point. As a Raleigh DWI Lawyer, I always find it interesting to learn what the Police Officer's stated to my client to convince them to perform the tests. In most cases, the verbiage they use 'implies' that it's required and not voluntary. Statements like "I'm going to have you perform some tests" or "I need you to blow into this device." My favorite was a client who was told by an officer that he was probably going to let him go, but he needed my client to perform some tests just to be sure. Understand that Police Officers are not required to be honest with you. There is no law on the books that says police must always tell the truth to a Defendant they are investigating. The biggest mistake that the general public make when dealing with the police is thinking that you are smarter then the police and that you will not be outwitted by them. The reality is, this is their profession, they know all the best moves to try and get the evidence they need in order to arrest and ultimately convict you.

Another thing that has popped up across the Wake County area is more attempts to catch drivers speeding, texting, driving without a seatbelt, etc. Again, I was amazed at some of the creativity I have seen. Recently, on Highway 55 in Holly Springs, I have seen Police Officers set up on the overpass of 540 where they were using a radar to track the speed of the Defendant and radioing to other Police ahead on 55 to report who needs to be pulled over. Additionally, I saw Police set up around construction on 55 where traffic was narrowed from 4 lanes down to 2. This caused driver's to slow down, providing police enough opportunity to look into cars and see if the Driver had their seat belt on, or if they were texting. Certainly these type of tactics lead to many Driver's having to seek out a Wake County Traffic Attorney. All of this activity has resulted in an influx of Wake County residents contacting local attorneys looking for legal assistance. It's important to remember while out on the road, that the Police are always out there looking to catch driver's violating the law, so be careful.

If you do end up receiving a ticket or are arrested for a dwi, contact the Matheson Law Office. We have proudly served as the Raleigh DWI Lawyer for and traffic lawyer for hundreds of clients. We provide a free consultation when you call where you will speak directly with an attorney. Call us at 919-335-5291.