So, as I try and keep up with proposed changes to North Carolina Criminal and Traffic laws, we are seeing some interesting changes coming up that could be another burden to those facing the daunting effects of a DWI conviction. One of the biggest changes being proposed is requiring an Interlock Device for anyone convicted of a DWI, regardless of their Breath/Alcohol Concentration.
Let me explain, as it stands right now, anyone facing a DWI conviction who's BAC is a .14 or below does not have to have an Interlock Device installed on their vehicle as a part of their sentence. Those convicted with a .15 or above BAC are required to have one installed for one year. The changes being proposed would require the Interlock for all Impaired Offense charges (DWI and Driving After Consuming - the 'Baby DWI') regardless of your BAC, your history, or facts, etc.
You would think something as drastic as the headache of an Interlock Device for a year would be something maybe left to the discretion of the Judge. However, like most everything else regarding North Carolina Driving While Impaired charges, the Legislator has taken all deference out of the hands of the Judge and limited them to sentence according to very specific structured sentencing.
So, what's the big deal, you might ask. Interlocks seems like a sensible requirement for someone convicted of DUI. First, Interlocks are expensive, there is initial installation costs, monthly maintenance costs, and then any problems with the device requires paying for appointments to have the machines checked. On top of that, a part of the new changes to the laws being proposed would be an 'administrative fee' of up to $150 at the time of the installation. This 'Administrative Fee' is given to the State, so you can see the incentive driving this push for every DWI conviction to require an Interlock Device installed.
On top of the financial burdens, the reasoning by which the proponents of this change are arguing its necessity (because saying "it will make the State more money" doesn't make a good sound bite) is the deaths caused by DWI's in North Carolina. The problem with this argument is the Interlock device does, in my humble opinion, almost nothing to address the motor vehicle deaths occurring in NC as a result of DWI's; let me explain. First, the Interlock Device is only required for a one year period after the DWI conviction. This typically occurs immediately after the conviction, therefore the Interlock Device is only stopping someone from driving with alcohol in their system within one year from the date they were convicted of a DWI. I can tell you that most of my DWI clients would rather cut off their right hand then deal with the headaches that come with a DWI, even without an Interlock Device requirement. Even though most people convicted of a DWI are never repeat offenders, those that are, rarely repeat within one year of their conviction.
Second, if this is to serve as a deterrent to those who may Driving Under the Influence in North Carolina, understand there are PLENTY of other consequences that should already be deterrent enough. A DWI conviction in North Carolina will cost a driver no less then $500-$1000 out of pocket; not including attorney's fees (my cost for a low-level DWI is $1800) or insurance costs (they can go up by 400% for three years). Add to that an initial 30 day suspension period for the charge, a one year suspension for conviction, Substance Abuse Assessment and the headache of a Limited Driving Privilege, and you'll see how quickly it all adds up. Finally, understand that there are two circumstances under which a first time DWI offender could face jail time, regardless of their record. With all of that, people still drive drunk; the addition of the Interlock Device is not much more of a deterrent then what we already have. The fact is, it is not that we need more punishment on the books, it's that we need more education to the public.
So, be on the look out, cause this will likely pass.
Wednesday, April 15, 2015
Wednesday, January 14, 2015
The Problem with the DWI Caseload in Wake County
Recently, there have been several articles in local new papers addressing the issues the Wake County Courthouse faces addressing an influx of DWI cases. There have been Federal Grants awarded to local Law Enforcement to up their DWI investigation efforts. This includes additional officers, along with more check points and heavier presence on the roads during peak DWI periods.
The issue addressed in these articles is the fact that with increase police efforts towards DWI detection and arrest, comes increase load on the Wake County Justice Center. The Criminal Courthouse here in Wake county is already heavily overburdened. Some of this has been caused by these Federal Grants, others are more innocuous, we have a blooming population and at the same time, financial resources at the Wake County Justice Center are willfully inadequate. District Attorneys are not paid well to begin with and are a part of the Government employees who have seen little to no increase to their salary in the past few years (the same holds true for the Public Defenders Office, which is a wholly different discussion). Additionally, cuts have been made to support staff in the D.A. Office as a result of the funding limitations. As a Raleigh Criminal Attorney, I am appalled at the treatment of these civil servants and will be the first to say that these individuals are inadequately paid for their efforts and dedication to the office.
And that is where these articles end up, the court system needs more money to handle these higher case volumes, however I respectfully disagree. While more funding may allow for additional DWI-dedicated Assistant District Attorneys, Clerks and Judges, it would not be enough to fully mitigate the struggles all of us are dealing with at the court house. You see, while another DWI courtroom may provide some relief, it will always be limited by the fact that, while an individual officer may issue a hundred or more DWI's in a year, they can only testify at one trial at a time. A DWI trial on the best of days will take at least an hour or so. Typically they are closer to two or more. The more complex can take several hours or more, and all of this is in District Court. For a DWI trial in Superior Court, where a Jury is convened, a typical DWI will take a full day. So, no matter how many DWI dedicated courtrooms there may be, those that are called for trial are handled one at a time.
In one article, it mentions that for the current fiscal year in Wake County, it is estimated that there will be 7000 DWI citations issued. Even if only half of these cases are called for trial, they will not all be reached in a timely manner. Let's do the math, there is roughly 250 working days in a year, if only half were all called for trial during that year, it would require the court to resolve 14 cases a day. Given that there are presently 6 courtrooms that theoretically handle District Court matters, they would need to resolve a little more then 2 cases per courtroom, per day. And while that may seem feasilble, the reality is that would be doing little else other then DWI trials in all of the courtrooms to pull this off, which obviously is not feasible.
Which brings me to the point of this post. North Carolina is one of the toughest State's to receive a DWI charge in. The law as it is written, has absolutely not option for the State to offer an offender something less then a DWI conviction in a plea deal. Certainly one can envision circumstances where someone may receive a DWI that may deserve an outcome that is less serious then a DWI conviction. I would think low-level BAC (say a .09 or below) with no injury and no prior alcohol-related offenses could opt for a program, where perhaps they complete a number of community service hours, and/or pay a heft fine, for the opportunity to avoid a DWI conviction. See, as the law is currently written, the aforementioned set of facts is treated equally for conviction purposes as someone with much more serious set of facts. And while a DWI conviction does have standards for sentencing purposes to distinguish from the most egregious to the less, the fact remains that these drivers are still facing a DWI conviction. This is why many DWI clients elect to try their case instead of pleading it, there is no incentive for them to not take a 'bite at the apple.'
DWI's are extremely complicated and so are the politics that surround them. That being said, the problem is not going away and it's not getting better. Something needs to be done to serious address this problem at the courthouse and a solution that can help those who very benign facts deserve a better opportunity to avoid a DWI conviction short of trial.
The issue addressed in these articles is the fact that with increase police efforts towards DWI detection and arrest, comes increase load on the Wake County Justice Center. The Criminal Courthouse here in Wake county is already heavily overburdened. Some of this has been caused by these Federal Grants, others are more innocuous, we have a blooming population and at the same time, financial resources at the Wake County Justice Center are willfully inadequate. District Attorneys are not paid well to begin with and are a part of the Government employees who have seen little to no increase to their salary in the past few years (the same holds true for the Public Defenders Office, which is a wholly different discussion). Additionally, cuts have been made to support staff in the D.A. Office as a result of the funding limitations. As a Raleigh Criminal Attorney, I am appalled at the treatment of these civil servants and will be the first to say that these individuals are inadequately paid for their efforts and dedication to the office.
And that is where these articles end up, the court system needs more money to handle these higher case volumes, however I respectfully disagree. While more funding may allow for additional DWI-dedicated Assistant District Attorneys, Clerks and Judges, it would not be enough to fully mitigate the struggles all of us are dealing with at the court house. You see, while another DWI courtroom may provide some relief, it will always be limited by the fact that, while an individual officer may issue a hundred or more DWI's in a year, they can only testify at one trial at a time. A DWI trial on the best of days will take at least an hour or so. Typically they are closer to two or more. The more complex can take several hours or more, and all of this is in District Court. For a DWI trial in Superior Court, where a Jury is convened, a typical DWI will take a full day. So, no matter how many DWI dedicated courtrooms there may be, those that are called for trial are handled one at a time.
In one article, it mentions that for the current fiscal year in Wake County, it is estimated that there will be 7000 DWI citations issued. Even if only half of these cases are called for trial, they will not all be reached in a timely manner. Let's do the math, there is roughly 250 working days in a year, if only half were all called for trial during that year, it would require the court to resolve 14 cases a day. Given that there are presently 6 courtrooms that theoretically handle District Court matters, they would need to resolve a little more then 2 cases per courtroom, per day. And while that may seem feasilble, the reality is that would be doing little else other then DWI trials in all of the courtrooms to pull this off, which obviously is not feasible.
Which brings me to the point of this post. North Carolina is one of the toughest State's to receive a DWI charge in. The law as it is written, has absolutely not option for the State to offer an offender something less then a DWI conviction in a plea deal. Certainly one can envision circumstances where someone may receive a DWI that may deserve an outcome that is less serious then a DWI conviction. I would think low-level BAC (say a .09 or below) with no injury and no prior alcohol-related offenses could opt for a program, where perhaps they complete a number of community service hours, and/or pay a heft fine, for the opportunity to avoid a DWI conviction. See, as the law is currently written, the aforementioned set of facts is treated equally for conviction purposes as someone with much more serious set of facts. And while a DWI conviction does have standards for sentencing purposes to distinguish from the most egregious to the less, the fact remains that these drivers are still facing a DWI conviction. This is why many DWI clients elect to try their case instead of pleading it, there is no incentive for them to not take a 'bite at the apple.'
DWI's are extremely complicated and so are the politics that surround them. That being said, the problem is not going away and it's not getting better. Something needs to be done to serious address this problem at the courthouse and a solution that can help those who very benign facts deserve a better opportunity to avoid a DWI conviction short of trial.
Monday, January 5, 2015
Preconceptions about DWI's
So I received a call over the weekend that, though was not that uncommon for me, is probably shocking to the majority of you all. A husband was calling for a Raleigh DWI Attorney for his wife who was charged with a DWI over the weekend. She was involved in a fender-bender in a parking lot. Both his wife and the driver of the other vehicle agreed there was no damage and no need to involve the police. Regardless, the police showed up and ultimately charged this young lady with a DWI. What is surprising is the fact that she had a Breath-Alcohol Concentration of .06. Now, in all fairness, I haven't seen the police report yet, so there could be factors unknown to me that would cause the police to charge her with such a low BAC, but the reality is, whether there is or is not, this type of situation does happen, a lot.
You see, most people believe that only if you have a BAC of .08 or more, you will not receive a DWI charge in North Carolina. While the statute does state that a Defendant can be convicted with a BAC of .08, that is only half of the statute when it comes to impairment. You see, the statute allows for a conviction based on 'Appreciable Impairment.' Now, appreciable impairment is in place for those that may be impaired by something other then alcohol that may be hard to quantify to demonstrate it's impairing effects; like marijuana, cocaine, oxycodone, etc.
There are two problems with appreciable impairment; 1. it is a subjective concept to operate at the whim of the investigating officer and 2. it is used too often for alcohol related DWI's where the BAC was below a .08. Now, don't get me wrong, I understand the purpose of appreciable impairment. Proving impairment can be difficult without some test that supposedly gives a definitive level when someone is impaired or not (like a BAC of .08). But the reality is that too much deference is given to the officers in a lot of these cases where reasonable doubt should prevail. Worse though, is when an officer has a case with a low BAC, instead of letting common sense prevail, their go to is to charge.
I've heard from many clients (and officers as well) that Officers indicate some doubt they have as to the probability the defendant is guilty of the alleged crime, but elect to charge them anyways and 'let the court sort it out.' As if that will be an easy function for a Defendant to handle. The reality is, even a perfectly innocent person charged with a crime is going to have, at a minimum, a severe interruption to their life by having to go to court and try and convince someone of their innocence, and at worse, pay thousands of dollars to an attorney to see the case is dismissed. Worse still, what if the Defendant was arrested, now their mug shot is public record and WILL show up on line. Add to all of this that it will likely take multiple court visits to clear this matter up and you can start to see what a headache this can be. And for those who are charged with a DWI that probably shouldn't have been, they will face a 30 day license suspension just for having been CHARGED with the crime (as in, NOT convicted yet), plus a $100 civil revocation fee.
This idea that the officer believes they don't have a case but elect to charge an individual anyways is ludiciris. Officers are the first gatekeepers in our justice system and it is not their duty to 'pass the buck' as it were. If they have serious doubts about the guilt of the Defendant, they need to let the Defendant go. In a case where someone is charged with a DWI with a .06 BAC, there is absolutely no reason to proceed with charging them beyond some serious exigent circumstances. Perhaps that was the situation in this case. Perhaps this woman was under the influence of something other then alcohol. But I have seen these type of cases enough to know that it is likely the officer got certain the Defendant was driving while impaired and he wasn't going to let some little matter like a low BAC get in his way.
The point of the story is, understand that even perfectly innocent people get charged with a crime, so be careful out there and know your rights!
You see, most people believe that only if you have a BAC of .08 or more, you will not receive a DWI charge in North Carolina. While the statute does state that a Defendant can be convicted with a BAC of .08, that is only half of the statute when it comes to impairment. You see, the statute allows for a conviction based on 'Appreciable Impairment.' Now, appreciable impairment is in place for those that may be impaired by something other then alcohol that may be hard to quantify to demonstrate it's impairing effects; like marijuana, cocaine, oxycodone, etc.
There are two problems with appreciable impairment; 1. it is a subjective concept to operate at the whim of the investigating officer and 2. it is used too often for alcohol related DWI's where the BAC was below a .08. Now, don't get me wrong, I understand the purpose of appreciable impairment. Proving impairment can be difficult without some test that supposedly gives a definitive level when someone is impaired or not (like a BAC of .08). But the reality is that too much deference is given to the officers in a lot of these cases where reasonable doubt should prevail. Worse though, is when an officer has a case with a low BAC, instead of letting common sense prevail, their go to is to charge.
I've heard from many clients (and officers as well) that Officers indicate some doubt they have as to the probability the defendant is guilty of the alleged crime, but elect to charge them anyways and 'let the court sort it out.' As if that will be an easy function for a Defendant to handle. The reality is, even a perfectly innocent person charged with a crime is going to have, at a minimum, a severe interruption to their life by having to go to court and try and convince someone of their innocence, and at worse, pay thousands of dollars to an attorney to see the case is dismissed. Worse still, what if the Defendant was arrested, now their mug shot is public record and WILL show up on line. Add to all of this that it will likely take multiple court visits to clear this matter up and you can start to see what a headache this can be. And for those who are charged with a DWI that probably shouldn't have been, they will face a 30 day license suspension just for having been CHARGED with the crime (as in, NOT convicted yet), plus a $100 civil revocation fee.
This idea that the officer believes they don't have a case but elect to charge an individual anyways is ludiciris. Officers are the first gatekeepers in our justice system and it is not their duty to 'pass the buck' as it were. If they have serious doubts about the guilt of the Defendant, they need to let the Defendant go. In a case where someone is charged with a DWI with a .06 BAC, there is absolutely no reason to proceed with charging them beyond some serious exigent circumstances. Perhaps that was the situation in this case. Perhaps this woman was under the influence of something other then alcohol. But I have seen these type of cases enough to know that it is likely the officer got certain the Defendant was driving while impaired and he wasn't going to let some little matter like a low BAC get in his way.
The point of the story is, understand that even perfectly innocent people get charged with a crime, so be careful out there and know your rights!
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