Search This Blog

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.