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.

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 to Do When You Decide You've Had Too Many

Alright everyone, let's take today's Raleigh DWI Attorney Blog to discuss those who were smart enough to realize they had too much to drink, but still ended up catching a North Carolina DWI Charge. In the best of all worlds, when someone realizes they shouldn't be driving (and when I say, 'shouldn't' that includes realizing that, though you are fine to drive, you could still be arrested and convicted of a DWI regardless of how you 'feel'). For those who figured out this important fact early, they never get behind the wheel and therefore never run the risk of getting a DWI charge. For those who come to this realization AFTER having started driving, this blog will discuss some very basic advice that should be followed to help you avoid getting a 'Driving' While Intoxicated, even though you are driving.

Once you realize you shouldn't be driving, get off the road as soon as you safely can. Preferably find a parking lot or side street where you can park safely. Once parked TURN OFF THE VEHICLE AND REMOVE THE KEYS FROM THE IGNITION! Under North Carolina DWI Law, a Driver can meet the element of 'driving' in the North Carolina Driving While Intoxicated law by having the keys in the ignition and the car running. I have even seen convictions for keys in the ignition and the car NOT running.

Next, get OUT OF THE DRIVER'S SEAT! It's hard to argue that you were driving the vehicle if you are not behind the wheel!

Then, either sleep it off, or call someone to come pick you up.

If the Police were to come by, here are some basic things you need to remember. First, DO NOT ADMIT ANYTHING, but especially do not admit DRIVING! If you have followed these simple suggestions AND you don't admit driving, it will be hard for the State to prove that part of a DWI charge, which will be required for a conviction. If the Police Officer asks you to perform any Field Sobriety Testf and/or ask you to blow into a portable breathalyzer, can you refuse those as well. In fact, the only thing you cannot refuse without consequence is the Intoxilyzer, which is the machine they have you blow in AFTER you have been arrested. If you refuse, you will have your license revoked for 1 year, so it's up to each person whether they refuse or not. However, if you have done what this Raleigh DWI Lawyer suggested and turn off the car, remove the keys, get in the passenger seat or back seat, then you've already done yourself a great favor. With the addition of "Laura’s Law" a DWI Conviction is getting more and more serious, you want to do your best to avoid it!

If you have received a Raleigh DWI Charge or other North Carolina DWI Charge in the area, and are in need of a good Raleigh DWI Lawyer, feel free to contact me at 919-335-5291 to discuss your case for free!

North Carolina Field Sobriety Test: Walk and Turn Test

In my previous post, I discussed North Carolina DWI Stops and the North Carolina Field Sobriety Test:  known as the One-Legged Stand Test (I also added the Horizontal Gaze Nystagmus Test). I will now move on to a discussion regarding the Walk and Turn Test.

As explained before, there are three standard tests used by North Carolina Police Officers when conducting a stop for Driving While Intoxicated:  The One-Legged Stand Test, The Walk and Turn Test, and the Horizontal Gaze Nystagmus.  The Walk and Turn Test, like the One-Legged Stand Test, is both a balance test as well as a divided attention test.  Obviously, someone who is impaired above the legal limit will have some difficulty with their balance.  However, studies have shown that those that are intoxicated also have trouble dividing their attention between two tasks; specifically, maintaining their balance while concentrating on completing another task.

During the Administration of the Walk and Turn Test, the Driver is asked to stand, heel-to-toe on a either an actual line, or imaginary line, while the instructions are given.  They are told not to begin the test until the instructions are finished.  The Officer then explains that they want the Driver to take nine heel-to-toe steps along the line.  Once they reach step nine, the front foot stays in place while the other foot takes small steps around in a half circle until the Driver is turned 180 degrees.  They are then to take nine heel-to-toe steps back.  During the test, the Driver is to keep their hands at their side, look at their feet, and count to nine.  Normally, the Officer will demonstrate several steps as well as the turn as they give the instructions.

During the test, the Officer is looking for nine 'clues.'  Clues are actions taken by the Driver which are suppose to indicate some impairment.  For this test, only two clues are needed to qualify the Driver as having an impairment of .10 or more.  The nine clues are as follows:

1. Cannot keep balance while listening to the instructions.
2. Starts before the instructions are finished.
3. Stops while walking to steady self (does not include merely walking slowly).
4. Does not touch heel-to-toe (only if the gap is more than 1/2 inch).
5. Steps off the line.
   
6. Use arms to balance (only if the Driver raises one or both hands more than 6 inches from their body).
   
7. Loses balance while turning.
   
8. Incorrect number of steps.
9. Cannot do the test (this will result in 9 clues being recorded against the Driver).

 As I will mention in each of these reviews, and as is more thoroughly covered on my Raleigh Criminal Attorney website, you should never agree to participate in any Field Sobriety Tests.  These tests are never 100% accurate and therefore can possibly lead to an arrest for someone not impaired.  Additionally, regardless of how well you think you will do, whatever happens during the test CAN and WILL be used against you should you be arrested.  There is no reason to provide the Officers and Prosecutors MORE evidence to use against you.  It is your CHOICE to perform the Field Sobriety Tests.  Eventually, I will blog about the Intoxilyzer and Intoximeter, which are the two different 'Breathalyzer' machines approved for used after arrest (not, this is different the the AlcoSensor, which is the machine used before arrest) and though it is your choice to provide a breath sample, refusing to do so carries with it consequences you should be aware of before you make that decision.  If you want an overview of these machines and consequences immediately, then you can go here for information: North Carolina Breathalzyer.