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.  

Raleigh Traffic Law | New News on Red Light Cameras

So, of interest to myself, the remainder of the Raleigh Criminal Defense community, and hopefully the general public is the news that the town of Cary has decided to remove their Red Light Cameras. For those who don't know, Red Light Cameras are cameras set up at certain intersections which are suppose to document driver's running a red light. These cameras are operated by a third party who issues tickets for the city costing the driver $50 for this infraction. There are several issues I have with the Cameras. As a Raleigh Traffic Lawyer (which is addition to being a Raleigh DWI Attorney and criminal attorney) I've become fairly familiar with these systems. In addition, while in law School and had an entire class that was devoted to me writing and advocating the a North Carolina State Supreme Court Justice a case regarding these programs. That class explored the case of Shavitz v. High Point where the plaintiff had received a red light camera ticket. He filed suit on several grounds but was ultimately successful in District Court (and was upheld in Appellate Court) by arguing that the N.C. State Constitution requires the 'clear proceeds' from these tickets is required to go to local public schools. The court determined 'clear proceeds' is everything but nominal costs associated with processing these tickets. It DID NOT include the over 70% the third party companies hired to install and enforce these programs retained from each $50 ticket. For that reason, High Point, along with other municipalities elected to end their programs. In fact, only Raleigh, Cary, Knightdale and Wilmington retained their programs, which was (arguably) permissible due to new legislation. Certainly the fact that these third parties were keeping so much money, with so little going to area public schools is disturbing. Another issue I (along with most other Raleigh Criminal Defense Attorneys) have an issue with is the fact that there is no Police oversight to these programs. The Camera catches the image and a ticket comes in the mail. The problem with this is the fact that we each enjoy a 6th Amendment Constitutional right to confront our accuser; in this case the camera. It's kind of hard to question the camera on the accuracy of it's data, or whether anything else could have impacted the results that were not the Defendant's driving. Now, there are those who would say that since the picture captures the offense, there's no need for Police oversight. But, recently it was determined that there were over 30 cases of individuals who were issued these tickets when making a legal left-hand turn at a blinking yellow light. If, instead of a camera, a Police Officer was stationed at the intersection to try and catch the same offense, he/she would have known that the Driver was not running a red light and would not have issued the ticket. Hence, the need for police oversight in these programs. Finally, I feel having a third party company issuing citations to enforce state/city law is unethical. A part of the job of local government is the enforcement of the laws. Those who are commissioned to enforce them have been trained and are held to certain standards that is necessary when dealing with accusing someone of violating a crime. Having a third party issuing these tickets, who are not government officials, and who have a financial incentive in the issuing of these tickets, is unethical. Hopefully the remaining three cities in our great State of North Carolina will follow suit and end their programs as well. Until then, should you get one of these tickets, or any other Raleigh Traffic Ticket, Raleigh DWI Charge, or Raleigh Criminal Charge, contact the Matheson Law Office today for your free consultation.

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.

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.

What Not to Say in the Courtroom

This morning I was in Criminal Court in Durham, North Carolina and observed something that I have seen many times and decided to write an blog about it. I heard a criminal defendant, represented by a Criminal Defense Attorney speak directly to the Judge when he was addressing counsel. And before that, I observed a young law student who was in court on a misdemeanor larceny first-time offenders program try and talk his way out of having his status in the program revoked and face the original larceny charge. As a Raleigh Criminal Lawyer, Raleigh Traffic Attorney and a Raleigh DWI Attorney practicing in Durham, North Carolina and Raleigh, North Carolina, and formerly an Assistant District Attorney in Harnett County, North Carolina I have seen many Defendants speak up when they shouldn't have. Below, this article will stress why it is important to limit what you say and/or hire an attorney to speak for you.

The first incident that I saw today, where the Defendant spoke directly to the Judge was met immediately by an admonishment by the Judge. The Judge explained that she was represented by a quality Durham Criminal Attorney from the Public Defender's Office and should let her attorney do all the speaking for her. Afterwards, I observed the Public Defender express the same to the Defendant. She explained to the Defendant to not speak in court unless directly spoken to. I know this may sound belittling, and somewhat parent/childish, but it's true. Attorneys go through three years of law school, incur HUGE amounts of student loans, and ultimately face the bar exam to learn the law and learn how to be a lawyer. One of the many skill sets that attorneys learn is what should be said in court and what should not. If you have an attorney representing you in court, whether it's a Criminal Case, DWI Case, or a Traffic Case, let the Attorney do all the speaking for you, unless the agree that it is okay for you to speak up or you are called to testify.

This brings me to my second point. If you are facing a Criminal Charge, DWI Charge, or a Traffic Charge you should always try and find a way to have an attorney at your side to represent you. Whether you request the court to appoint you an attorney, you ask an attorney who is your friend to help, or you hire a private criminal attorney, you need their expertise in making it through the case. Now, I'm not saying that there have not been successful Pro Se Defendants (that is the term used for Defendants who represent themselves). There have been successful cases, as an Assistant District Attorney, I observed a Defendant get a not guilty verdict in an assault case brought by the Defendant's Dad. But, if you are playing the percentages, you have a MUCH greater chance of being successful, and not making a mistake, if you have an attorney at your side. The young man today who was representing himself was saved when a local attorney stepped in and assisted him, for free. See, not all attorneys are blood-suckers!

North Carolina's new "Laura's Law"

And now recent news in the world of Raleigh DWI law from the perspective of a Raleigh DWI Attorney.  The North Carolina Legislation passed a new law referred to as "Laura's Law.'  This law, officially called House Bill 49, was signed into existence by Governor Purdue on June 23, 2011.  Created to added a greater degree of punishment then was previously available, this law seeks to increase jail time, fines as well as post-release requirements for those with certain, severe factors weighing against them.

This law was written in response to the tragic death of Laura Fortenberry.  Ms. Fortenberry, 17, was killed when the vehicle she was riding in was struck head on by Howard Pasour, who was intoxicated.  At the time of the accident, Mr. Pasour had three previous convictions of DWI on his record.

The new law now adds a 6th level of sentencing to the 1-5 levels previously available.  Referred to as "Aggrevated Level 1," this new level permits fines up to $10,000 with a jail sentence range between 12 months and 36 months.  The defendant would not be eligible for release any sooner then four months before the maximum range they were sentenced to.  Additionally, if the sentence is suspended (meaning the jail time the defendant is sentenced to is suspended on condition they meet other requirements), the defendant is still required to be imprisoned for 120 days.  Finally, upon release, the defendant is under supervised probation and required to abstain from alcohol consumption.  To ensure they do, the court requires they wear an alcohol monitoring device around their ankle for the four months; the cost of which is the defendant's burden to bear.

In order to be subject to this 'Aggravated Level 1' sentencing, the defendant must have three or more what is referred to as "grossly aggravating factors.  Under North Carolina law, the level of sentencing a DWI defendant faces depends on three things: mitigating factors, aggravating factors, and grossly aggravating factors.  Future blogs will cover these sentencing considerations in more depth, but for the purpose of this blog, grossly aggravating factors are: Prior DWI conviction in the previous 7 years, Driving While License Revoked conviction when the revocation was for impaired driving, serious injury to another caused by the defendant's impaired driving, and either:

1. a child under the age of 16 in the vehicle at the time of the offense (for offenses that occur before December 1, 2011), or
2. a child under the age of 18 in the vehicle at the time of the offense (for offenses that occur on or after December 1, 2011).

Prior to this new law, the worst someone with three grossly aggravating factors could face is a Level 1 sentence.  Level 1 consists of a fine up to $4,000, imprisonment between 30 days and 24 months.  If the active sentence is suspended, the defendant must be imprisoned for 30 days.

And now for some perspective.  As a Raleigh DWI attorney, I applaud this law.  Don't get me wrong, I'm not thinking in contrary to clients bests interests.  And if any of my clients face an Aggrevated Level 1, I will fight for the very best outcome possible, as I would for any of my other clients.  That being said, most DWI charges are a one-time thing.  Most people caught on their first DWI are not repeat offenders.  Unfortunately, like the rest of the criminal justice system, the Government relies heavily on the ignorance of the general public.  Too many people just do not understand the severity of a DWI charge and how easily one can be had.  So, they risk that one last drink, get behind the wheel, and get busted.  But, as most anyone ever charged with a DWI will tell you, it is an awful and VERY expense experience they do not ever intend to repeat.  As such, this law was not written for the general public, it was written for those who have serious drinking issues that haven't faced a severe enough consequence to deter them from continuing their action.  My hope is, with this new sentencing level serving as a deterrent, there will be very few that end up having to face it.