Raleigh Traffic Law | Recent Changes to the 'Move Over' Requirement

So, to little fan fare and publicity, the North Carolina Traffic Law regarding the requirement to move over for emergency vehicles has recently changed. What requirements drivers face when approaching 'emergency vehicles' has changed to include new 'emergency personnel' that most people may not think to give consideration to. As a Raleigh Traffic Lawyer and Raleigh DWI Lawyer, I stay up-to-date on recent changes to the North Carolina Criminal codes so that I can better advise my clients. This change can have a lasting impact on those who are unaware of these new requirements. As most North Carolina drivers realize, when a Police Officer has someone pulled over on the side of the road, or there is an ambulance or fire truck on the side of the road, the driver is required to move over a lane and/or slow down and be prepared to stop until they have passed the police officer. However, the recent changes to the North Carolina Traffic Law N.C.G.S. 20-157 includes those same requirements for roadside assistance vehicles and emergency vehicles which have flashing yellow lights. The language of the statute does not specify a definition of 'emergency personnel' or which vehicles constitutes a 'safety vehicle.' However, given the law does specify the flashing yellow lights, it would seem to include government roadside assistant vehicles for those stranded on North Carolina roads, as well as possibly tow trucks assisting those same drivers. The changes to this law include spelling out what consequences a driver could face should they violate this law. Should the driver fail to move over and/or slow down, they would face an infraction with a two hundred and fifty dollar fine. If property damage to the emergency vehicle in excess of five hundred dollars or personal injury to the emergency personnel occur as a result of negligence of the driver, the the Driver will face a Class 1 Misdemeanor. Should serious bodily injury or death result, the driver would face a Class I Felony. These consequences can be serious for the Defendant and should not be taken lightly. If you are facing these charges, or any other traffic ticket in Wake County or other criminal charges, contact the Matheson Law Office for your free consultation.

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.

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.

Raleigh DWI Trial | Why Not Go To Trial?

Recently, I was having lunch with another North Carolina DWI Attorney. Included in this Attorney's practice is Raleigh/Durham DWI Defense. I was explaining to him a case I had coming up the following day. As we went over the facts, I explained to him that I intended to call this matter for trial. He reiterated to me the facts of the case I had just explained and asked me what there was to have a trial on. I explained to him my strategy for trial and that was the end of the conversation. As it turned out, neither of us were proven correct as I didn't get to trial. Rather, the Prosecutor was forced to dismiss my client's North Carolina DWI Charge due to the fact that the Police Officer was in training the day of trial and would not be able to make it. Now, when this normally happens, the State would just ask for a continuance, the Judge would grant it, and the State would get another opportunity to get their Police Officer in for this Durham DWI Trial. In this particular case, I had already called it for trial before and at that time, the Officer wasn't available, so the State was forced to continue it, and the Judge explained that it would not be continued again. Fast-Forward to the new court date, Officer isn't available, and the Judge denied State's motion. Though the State has the option of re-charging my client (which I find totally unconstitutional, but unfortunately, presently acceptable due to case law) my client and me are hoping that this will be the end of the ordeal. I write about this today because it struck me as odd that my friend would think it shouldn't be tried. First, I felt that my arguments I planned to make in my Pre-trial motions to suppress had a decent change of being persuasive, in which case, had the Judge granted my Motion to Suppress, the case would have had to been dismissed or the motion appealed (the latter being the more common practice in this particular county). But, more importantly, I feel like most DWI charges should be taken to trial. I believe there are many reasons for this, but most importantly is, the trial is the unknown; you never know what will happen. You may have a good idea as to what will happen, but can't be sure. But, you may ask, what about pleading them out instead of trial? Well, funny you should (rhetorically) ask. In the counties that I practice (Wake, Durham and Harnett) as I assume in all other North Carolina Counties, the Prosecutor will not plead out a North Carolina DWI Charge to something other then a DWI charge. They will almost always dismiss the other associated charges (like if they originally pulled you for speeding) but not the DWI. So, a Defendant's only hope of avoiding the DWI charge is trial. In my conversations with other Raleigh DWI Attorneys, I am starting to get the impression that my theory is more in the minority then the majority. If true, I find this very upsetting. I charge a middle-of-the-road rate for representing someone facing a North Carolina DWI Charge. My fee is, what I believe to be, a fair representation of the time and effort I put into a case (well, technically, I think I should earn more, but the market being what it is, I do have to be competitive). Every client I get who is facing a North Carolina DWI Charge I spend a good amount of time investigating their case in order to determine whether their are any try-able facts. Even if there is nothing to hang a Defense on, my recommendation is almost always trial, just to see what happens. The North Carolina DWI Sentence the DWI Defendant faces is the same whether they plead guilty or are found guilty. So, unless there are other charges which could be dismissed that the Defendant wants to avoid, the best bet is almost always trial. Which brings me back to my conversation with the other Durham DWI Lawyer. Granted, my client had indication of impairment at the time of the arrest (though not enough, in my assessment) and he blew above the limit. For all intents and purposes, my client was likely guilty of Driving While Impaired. However, I felt there were problems with the stop and the arrest (see my blog post about defending these types of Constitutional issues and why it is important) and decided to have a trial. For my efforts, my client has avoided a DWI conviction (though not without punishment, when you consider multiple trips to court - time and money, my cost, losing his driving privilege for 30 days, $100 for the implied consent offense fee, and he completed a Substance Abuse Assessment in anticipation of a conviction). I guess my point is, this is an instance where due diligence and an eye on trial paid off for my client and should be the practice of all Raleigh DWI Attorneys.

North Carolina DWI Law | What Factors are Considered for a DWI Sentence

Since this Raleigh DWI Attorney Blog deals with all facets of a North Carolina DWI Defense, in addition to the greater area of North Carolina Criminal Defense, it only makes sense that we review the factors which the court considers when setting a DWI Defendant's sentence.

In a previous post I reviewed North Carolina DWI Sentence Structure this article will be dedicated to explaining the three factors which the Judge considers for the purposes of setting a DWI Defendant's sentence within North Carolina DWI Sentencing Structure.

To start with, this blog will discuss Aggravating Factors and Mitigating Factors. These two factors are used when a Judge is considering setting a Defendant's sentence at a level 3, 4 or 5. That's not to say that these 'factors' can't be considered when setting a sentence at level 2, 1, or aggravated level 1, but these are set statutorily for the Judge to use for the purpose of setting sentences within level 3, 4, and 5. For these three levels, if a Defendant's aggravating factors greatly outweigh their mitigating factors, they are set at a level 3. If these two levels are even, the Defendant is set at a level 4. If the Defendant's mitigating factors greatly outweigh the aggravating factors, they are set at a level 5.

Aggravating Factors include: conviction of a prior DWI more than 7 years before the instant offense, two or more prior convictions for 3-point driving offenses within the preceding 5 years before the offense, gross impairment (.15 or above), especially reckless or dangerous driving, negligent driving leading to a reportable accident, passing a stopped school bus, conviction of speeding to elude apprehension, conviction of speeding at least 30 miles over the legal limit, or any other factor that aggravates the seriousness of the offense.

Mitigating factors include: voluntary submission to a Substance Abuse Assessment and participation in the recommended treatment, slight impairment (.09 or less), safe and lawful driving at the time of the offense, impairment which was caused by lawfully prescribed drugs within prescribed dosage, a statutorily safe driving record (no offense for which at least 4 points are assigned within 5 years of the date of the offense), or any other factor that mitigates the seriousness of the offense.

The other factor which is used by the court is referred to as Grossly Aggravating Factors. If any of these factors apply, then the Defendant is facing a DWI Sentence of Levels 2, 1 or Aggravated Level 1 (for stops from December 1, 2011 on). If the Defendant only has one Grossly Aggravating Factor, they will be sentenced at a level 2, if there are 2 Grossly aggravating Factors, the Defendant will be sentenced to a Level 1. If there are three or more Grossly Aggravating Factors and the Defendant was stopped prior to December 1, 2011, they will be sentenced to Level 1, but if the Driver was stopped December 1 or there after, they will be sentenced at the Aggravated Level 1.

Grossly Aggravating Factors include: a Driving While License Revoked charge at the time of the current charge and where the license was suspended for a prior DWI, serious injury to another caused by the Defendant's impaired driving, a prior DWI conviction within the preceding 7 years, and having a child under 16 years of age in the vehicle at the time of the offense (as of December 1, the age is moved to passengers under 18 years old).

For a review of each North Carolina DWI Sentence Level, click on North Carolina DWI Sentence Structure.

Laura's Law Takes Affect | A Review of North Carolina's Sentencing Structure

Since this is a blog about North Carolina DWI Defense, written by a Raleigh DWI Attorney it would only make sense that I review North Carolina's Sentencing Structure. This is additionally important because, as of yesterday, North Carolina DWI Sentencing Structure has changed. I have previously written about Laura’s Law which not only adds a new, more serious sentencing level to North Carolina DWI Law, but also made a change to one of the factors which are presented by the North Carolina Assistant District Attorney, and will impact which level a Defendant will be sentenced.

Though this post will not address the three factors which determine where a Defendant will fall in North Carolina's DWI Sentencing Structure (a future post will cover them), quickly they are referred to as Mitigating Factors, Aggravating Factors, and Grossly aggravating Factors.

As of yesterday,December 1, 2011, North Carolina now has six sentencing levels for a Defendant convicted of Driving While Intoxicated. The breakdown for each is as follows:

Level 5 carries with it a fine up to $200, imprisonment for 24 hours to 60 days. If the sentence is suspended, the Judge must impose either 24 hours in jail or 24 hours of community service (or a combination of both).
- In order to be sentenced at a Level 5, the Defendant's Mitigating Factors must outweigh their Aggravating Factors and cannot have any Grossly Aggravating Factors.

Level 4 carries with it a fine up to $500, imprisonment for 48 hours to 120 days. If the sentence is suspended, the Judge must impose either 48 hours in jail or 48 hours of community service (or a combination of both).
- In order to be sentenced at a Level 4, the Defendant's Mitigating Factors must equal their Aggravating Factors and cannot have any Grossly Aggravating Factors.

Level 3 carries with it a fine up to $1,000, imprisonment for 72 hours to 6 months. If the sentence is suspended, the Judge must impose either 72 hours in jail or 72 hours of community service (or a combination of both).
- In order to be sentenced at a Level 3, the Defendant's Mitigating Factors must be outweighed by their Aggravating Factors and cannot have any Grossly Aggravating Factors.

Level 2 carries with it a fine up to $2,000, imprisonment for 7 days to 12 months. If the sentence is suspended, the judge must impose an active term of at least 7 days.
- In order to be sentenced at a level 2, the Defendant must have no more than 1 Grossly Aggravating Factors.

Level 1 carries with it a fine up to $4,000, imprisonment for 30 days to 24 months. If the sentence is suspended, the judge must impose an active term of at least 30 days.
- In order to be sentenced at a Level 1, the Defendant must have 2 Grossly Aggravating Factors.

Aggravated Level 1 carries with it a fine up to $10,000, imprisonment for 12 months to 36 months. Additionally, if the sentence is suspended, the Judge must impose an active term of at least 120 days and will not be eligible for early release from any jail sentence sooner then 4 months before the maximum range that the Defendant was sentenced. During those 4 months from release, the Defendant must not consume any alcohol and is required to wear an alcohol monitoring devise, paid for by the Defendant.

As you can see, any conviction of of a DWI in North Carolina, carries with it serious ramifications, those in the upper ranges can face jail time and serious fines. This is why a DWI should never be handled pro se (Defending yourself), rather you should hire a qualified DWI Defense Attorney to handle your case.