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.

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.

Raleigh DWI Law | Delays in Blood Cases

So today's Raleigh DWI Attorney blog is going to deal with what happens when an individual facing a North Carolina DWI Charge either refuses to blow in the Intoxilzyer or are unable to and the State elects to draw the Defendant's blood to test for their blood/alcohol concentration. Commonly referred to as a 'blood case' these type of DWI's have some interesting ins and outs for a Raleigh DUI Lawyer or any other North Carolina DUI Lawyer. But, this blog post is not intended on covering all the issues that can come up with blood cases. No, today's blog post is going to deal with my frustration with the handling of these particular types of cases. You see, with blood cases in North Carolina, the blood is shipped off to the State Bureau of Investigation (SBI) to have then run the test to determine the Defendant's blood/alcohol concentration. In many of these types of North Carolina DWI cases, is very important to the State's case against the Defendant. However, the blood can take months for it to get back to the District Attorney's office. Since the State is reluctant to proceed without the blood results, they will continue the case multiple times until the blood results comes in. Now, as a Raleigh Criminal Attorney and Raleigh DWI Attorney, I am no stranger to continuances. In fact, both the Defense and the State will utilize continuances in order to get time to get their evidence together, work out pleas, etc. What my big frustration is that there seems to be a double standard in some counties when it comes to blood cases. You see, for some counties in the Research Triangle Area, DWI cases are required to be resolved very quickly. If the case is several months old, the Defense may not be granted a continuance, regardless of the reason for the motion to continue. Now, some attorneys may be asking for a continuance for selfish reasons, others may have legitimate reasons, like a necessary witness isn't available that day, or the Defendant needs more time to complete their Substance Abuse Assessment, get money together, or make arrangements should they be facing jail time. Regardless, if the case is outside the predetermined limitations for DWI Cases, the Judge can deny the Defendant's motion and they are forced to proceed. Now, shift gears to a blood case. In these same counties (one in particular comes to mind - though will not be named) if the DWI is a blood case, the State is given all the time in the world to get their evidence together. Now, I understand the District Attorney's office has their hands tied because they can't control the SBI, but that doesn't change the fact that the Defendant is being required to come to court multiple times on something they have been accused of (but not yet proven) in violation to their right to a speedy trial. As example, I was in this particular county this morning for a client who was charged with a North Carolina DWI November 6th. This client has had 5 court dates since that time, each time having to have a relative take off of work and drive them to court as they can't drive themselves. The Judge today granted State's motion, over my vigorous objection, but did mark the shuck last (meaning the State is not suppose to get another continuance on the new date). Now, some may say, what's a few months of waiting, the State needs to be able to convict these people and need these blood results in order to do it. But keep in mind, these individuals have only been ACCUSED of a crime. Though a Police Officer was suppose to determine that they had probable cause to charge the individual, that is not necessarily enough for a conviction. What if these blood results came back as a .02? Would you still feel it's appropriate that the State require these individual come to court five, six, eight times, take at least an hour at a time to figure out what is going to be done with the case, only to learn that there was not enough evidence to charge them, let alone convict them? There is good reason we have a Constitutional Right to a speedy trial, so that the State cannot bring charges and then make the Defendant wait around, and come to court under threat of arrest, until the State can make their case. If you are facing a Raleigh DUI Charge, Raleigh Criminal Charge, or Raleigh Traffic Ticket and are in need of a free consultation, contact the Matheson Law Office about your case at 919-335-5291.

Raleigh DWI Stops | Understanding the Checkpoints

So, today's Raleigh DWI Attorney Blog will discuss some aspects of the checkpoint and in what ways can they be challenged. Many people understand that, unfortunately, the Police have the ability to set up checkpoints. What many do not realize is the limited scope for which they can setup the checkpoint. As a Raleigh DUI Lawyer and Raleigh Traffic Lawyer, I have explored the various aspects of a check point and in what ways they can be challenged. This article will hopefully shed some light on this practice of law enforcement. First, in North Carolina certain case law has outlined the requirements of what constitutes a permissible North Carolina DWI Checkpoint. Under N.C. v. Rose, the courts found the Police in that particular case had improperly set up the checkpoint and therefore sent the case back to the lower courts to rule in accordance to their finding. Specifically, the court held that the Police did not set up the checkpoint for a specific reason, but rather set up it for 'general crime prevention.' This was in accordance with City of Indianapolis v. Edmond, where the U.S. Supreme Court held that for checkpoints to be Constitutional, the State must prove the primary purpose of the checkpoint was not for general crime prevention. From there, if the court finds the State proved the primary purpose of the DUI checkpoint was not for general crime prevention, then the court must determine the reasonableness of the checkpoint by applying the 'Lidster Analysis' which examines 1. The seriousness of the public concerns attended to by the seizure, 2. The degree to which the seizure assisted the public interest and 3. the gravity of the interference with individual liberty. The Police will normally set out a 'plan' which will outline the reason for the checkpoint and the means by which they conduct the checkpoint. In this plan, which must be authorized by some type of supervisor, there must be a set parameter by which the vehicles are stopped to ensure that no individuals are 'targeted.' Additionally, no one Police Officer may have authority to control or dictate the process by which the stops occur during the checkpoint. These restrictions are meant to ensure that the scope of these type of stops are very limited and very controlled. Remember, in America, we enjoy the right to Unlawful Search and Seizure, which normally requires a finding of Reasonable Suspicion to validate the temporary seizure. These checkpoints are a limited exception to this rule and therefore are strictly construed to very specific purposes. If you have received a North Carolina DUI Charge as a result of a Raleigh DUI Checkpoint or checkpoint anywhere else here in North Carolina, speak with a local DWI Attorney about your case. Disclaimer - Information and advice offered in this article is for informational and educational purposes only and is specific to North Carolina law. The viewing, receipt and/or exchange of information from this article does not constitute an Attorney-Client Relationship. For assistance regarding your particular legal question speak with an Attorney practicing in the field from which your questions derives.

Raleigh Criminal Defense | Difference Between 'What is Right' and 'What is Legal'

In my experience with North Carolina Criminal Defense I have the opportunity to meet with people from all walks of life and see cases that range from common to the very strange. One of the experiences I deal with often is trying to explain to someone how it is their conduct was considered to be in violation of some North Carolina Traffic Law or Criminal Law. While some people hope to just offer an explanation which could help them possibly avoid the conviction, some people are convinced that they should not be convicted because they were justified in their actions. In my talks with various DWI Defense Lawyers Raleigh and http://mathesonlawoffice.com/north-carolina-criminal-defense/, it would seem my experience is not unique (not that I necessarily expected it to be). It seems that, regardless of the laws, some people just believe their conduct should have been excused simply because they feel they were right in their actions. Now, let me distinguish this from situations where the Defendant has a valid defense. Where the law, whether by statute or case law, states that the Defendant has an applicable defense, then those Defendants are correct in their assertion that they conduct was excusable. However, for others, there is not valid defense for their action, or at least not one that they fall squarely within. Because, regardless of the Defendant's 'good intentions' or lack of knowledge, the court usually does not make exceptions to violations of the law. Perhaps some examples in this discussion would help clarify what I mean. An associate of mine is representing an individual who is facing a Raleigh DWI Charge. The Defendant in this case was one of two passengers in a vehicle. Though he was intoxicated, he was not driving. However, at some point, the driver of the vehicle stopped the car in the middle of the road and walked away. With approaching traffic, the Defendant hopped in the Driver's seat and pulled the vehicle over to the shoulder. Unfortunately for the Defendant, the approaching traffic was a Police Officer, who eventually cited him for violating North Carolina Driving While Intoxicated Law. There is a defense called "Necessity" whereby, if the Defendant can prove to the court that his actions, though unlawful, were necessary to preserve the health and/or life of themselves or another from immediate danger, they may have their violation of the law excused. In the contrary, I was fortunate to observe a speeding ticket trial where the Defendant was 'pro se' (meaning he was representing himself). In this case, among many other things, one of the things the Defendant was arguing to the Judge was that his speeding was excusable under the concept of Necessity. Though the Defendant was very passionate about the necessity for his speeding (I want to say it was 50+ in a 25 MPH zone) his argument was not very convincing. You see, his 'necessity' was that he needed to get to a doctor's office where a family member was being seen for a broken bone and there was a rambunctious 2 year old family member who was hard to control in the waiting room. This, the Judge determined, did not rise to the level required for a necessity defense. And it's not just 'Necessity' which some people argue. The most common one I hear is for those cases where I serve as their Raleigh DUI Lawyer. The Defendant was okay to drive, though their blood/alcohol level was a .08 or above: unfortunately, the law does not make a distinction between the two. In fact, in North Carolina, .08 is written right into the North Carolina DUI Statute, stating that a .08 blood/alcohol concentration is prima facia evidence of violating the NC DWI Law. So, even if the DWI Defendant was driving perfectly, never showing any signs of impaired driving, but happen upon a DWI Checkpoint and the Police Officer's decide the driver is potential impaired and therefore have them blow or give blood, they can be convicted, regardless of how well they were able to drive. I guess I am saying all of this to say that, though you may have the best intentions, you may not be able to avoid a conviction if your conduct was unlawful, so tread carefully. If you are facing traffic, dwi or criminal charges in North Carolina, contact a local attorney for best advice on your case (if it's in the Research Triangle Area, contact the Matheson Law Office). Disclaimer - Information and advice offered in this article is for informational and educational purposes only and is specific to North Carolina law. The viewing, receipt and/or exchange of information from this article does not constitute an Attorney-Client Relationship. For assistance regarding your particular legal question speak with an Attorney practicing in the field from which your questions derives.

North Carolina DWI Law | Finding the Right Lawyer

So, today in the world of this Raleigh DWI Attorney I witnessed something that had my interest. I watched as an attorney plead out a dwi charge for their client who had a prior DWI charge. Now, fortunately, for this North Carolina DUI Charge, the Defendant's Prior NC DUI Conviction was more then 7 years ago and therefore was not a Grossly Aggravating Factor, only an Aggravating Factor (side note: I find it silly that the legislation couldn't come up with different names for these two things so they aren't so close that they cause confusion to many clients as I try to explain the difference between them). However, this Defendant's license was revoked at the time of the current NC DWI and therefore had at least one Grossly Aggravating Factor. Now, aside from the fact that I thought the Defense Attorney could have argued better for sentencing, it wasn't what I found so interesting about this plea deal. What was interesting about this case was the fact that the Defendant was reported to the Police by an anonymous tip AND that the Defendant had refused to provide a breath sample to the Police Officer when they caught up with her. Now, let me preface what I am about to say, I do not know all the facts about this case. There may have been a very good reason to plea this case out; the Police Officer may have gotten reasonable suspicion before he stopped her, they may have drew blood, they may have other evidence that I am not privy to, or the Defendant may have just wanted to plea the case out and get it over with (almost had a client facing similar sentencing do this exact thing). But, given that the Defendant was facing a minimum jail sentence (they were actually sentenced above the minimum to 120 days active jail sentence) I find it difficult to understand why a trial was not had? First, for anonymous tips, there's extra steps the State must go through in order to justify the stop based on it, and even then there are certain challenges that can be made to try and prevent the testimony of what the tip was, which could prevent the State from entering any evidence as a result of the tip and possibly beating the case. Additionally, a case where the Defendant has refused to below is a very triable case. Understand, 'very triable' and 'very winnable' are two completely different things. But, at least with a refusal, the State has to either: 1. prove appreciable impairment, which is a subjective concept that a Raleigh Defense Attorney could cast doubt on or 2. it's a blood draw, in which case the Defense attorney could try and keep it out unless the State presents evidence of chain of custody as well as the presence of the person who drew the blood. Again, I say, I do not know all of the facts of the case, so I am not trying to be too critical of this particular case. But I am extremely curious as to why this was plead out and not tried. In my talks with other attorneys (given, only a handful when considering the large volume of attorneys doing Raleigh DWI Defense and Durham DWI Defense) it seems that many attorneys are quick to plea and avoid trial because they don't feel that there's much chance of winning. And while that is true (they can be hard to beat) there is little to no consequence to the Defendant if they decide on a trial and it is their only chance of beating the NC Driving While Intoxicated charge. I guess what I am trying to say is, when speaking with the Attorney you may potentially hire in this case, be sure you inquire as to whether they are prepared to try the case or are they just interested in a quick turn-around where they just plea out the case. Disclaimer - Information and advice offered in this article is for informational and educational purposes only and is specific to North Carolina law. The viewing, receipt and/or exchange of information from this article does not constitute an Attorney-Client Relationship. For assistance regarding your particular legal question speak with an Attorney practicing in the field from which your questions derives.

Dangerous Conduct in the DUI News World

Though this didn't take place in North Carolina, and therefore does not involve a North Carolina DWI Charge, I find the following article 'blog-worthy.' The following article: DWI/DUI involves grandparents in Florida who decided, after knocking back a few, to tow their 7 year old behind their SUV, up and down an access road, in a hot wheels. The Driver was the young child's grandfather, and though the article did not mention what his blood/alcohol concentration was, it did indicate that this was his FOURTH DWI CHARGE! I have had clients before who have had previous been charged with North Carolina Driving While Intoxicated and it was not their first charge, but I have yet to have someone on their Fourth North Carolina DUI Charge. The grandmother in this case was seated in the cargo area of the vehicle with the hatch up, cheering on her young granddaughter as she was pulled behind the vehicle in a toy car. The grandmother was also impaired during this event (ideally, one would hope a sober person would not think a drunk driver pulling a child in a toy car behind a real car up and down the road was a good idea). The article mentions that the grandfather has been charged with Driving under the Influence, driving with a suspended license (similar to North Carolina Driving While License Revoked) and cruelty to a child. The Grandmother also faces cruelty to a child charge. From a Raleigh DWI Lawyers standpoint, I obviously do not condone this conduct. Driving While Impaired North Carolina is a serious charge and can be risky to yourself and those with you and/or around you. That being said, the DWI laws in North Carolina have become so strict that individuals who arguably were driving without signs of impairment (certainly less then those that insist on texting while driving or putting on make up as they drive) are catching serious charges with serious sentences. However, in this instance, I'm certain the grandfather will face very serious consequences for his actions. Not being familiar with Florida law, I can't say for sure, but certainly here in North Carolina he would be facing a jail sentence. It is never advisable to Driving Under the Influence North Carolina, but if you do, contact a local DWI attorney to best advice you on how to proceed. Disclaimer - Information and advice offered in this article is for informational and educational purposes only and is specific to North Carolina law. The viewing, receipt and/or exchange of information from this article does not constitute an Attorney-Client Relationship. For assistance regarding your particular legal question speak with an Attorney practicing in the field from which your questions derives.