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.
Friday, June 28, 2013
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.
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.
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.
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.
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.
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