Raleigh Drug Cases | Why Not to Trust Drug Tests

So, I realize it's been a while since my last blog post to the Raleigh DWI Attorney Blog. September was a hectic month and I really could not find time to breath. In truth, I'm still crazy busy with all of the Raleigh DWI Charges and Raleigh Criminal Charges I'm handling, but a recent article coming out of Boston warranted a blog post like no other. As covered by CBS and other news affiliates, a recent scandal at a Crime Lab in Massachusetts deals with a crime lab chemist who falsified test results. These results were not from tests to determine air quality or the impact of drilling on local streams or rivers. No, these results were from tests of potential drugs that were submitted to the STATE CRIME LAB to determine whether the individual in possession of them was, in fact, violating the law. What this means is, there are individuals who could currently be serving time for crimes they may not have committed. Now, certainly reading this, one would think it was likely some isolated incidents which were quickly discovered and rectified. In reality, this individual was a State Crime Lab Chemist for 9 years and tests over 60,000 drug samples. Well, it could be argued that perhaps there were simple mistakes made and not the intentional conduct of a State employee who could impact the conviction of every day citizens, right? Nope, this individual admitted to altering tests, going so far as to adding cocaine to some samples that came back as negative. Well, certainly her supervisors cannot be held accountable for her actions, how could they have known what she was up to, right? Well, where a normal Chemist in this office averaged processing 150 samples a month, this individual was processing 600. In fact, the staff at this State Crime Lab had nicknamed her 'Superwoman' for her ability to get so much done. Now, certainly the mistakes of an individual in Massachusetts does not impact those who are charged with violating North Carolina Drug Laws here. However, this situation goes to show that the system is imperfect. Where some may be quick to chastise someone charge and/or convicted of a North Carolina Law, they need to understand that our justice system is still a system designed, orchestrated and maintained by humans, who are prone to error. So, before you pass judgment on an individual under these situations, understand that there is the possibility that they are in fact innocent of the charges they face. If you are facing a Raleigh Misdemeanor Drug Charge or Raleigh Felony Drug Charge, contact the Matheson Law Office for a free consultation.

Raleigh DWI Defense | License Restriction

In the world of Raleigh DWI Defense the span of consequences is long and exhausting. Many realize that being convicted of a Raleigh DWI Charge will result in loss of license, an increase in insurance premiums and plenty of costs and fines. Some even know that there are consequences with even being CHARGED with a DWI, including loss of license for 30 days and a $100 civil revocation fee, even if you are not convicted. What some do not realize are the after affects of a North Carolina DWI Conviction which are less heard of. For starters, anyone with a blood/alcohol concentration of .15 or above will have the added requirement of having an Interlock device installed on their vehicle for one year at the point that they start driving after being convicted of a North Carolina Driving While Intoxicated charge. This device cost approximately $100 to install, and $60/month maintenance; all costs that are the burden of the Defendant. In addition to this requirement, where those with a blood/alcohol concentration below .15 (or who were convicted under the Appreciable Impairment portion of the statute) can receive a Limited Driving Privilege the same day as their conviction, those with a .15 BAC will have to wait 45 days before they can receive it AND have completed their Substance Abuse Assessment as well as all recommended treatment and show proof of the Interlock installation. Another thing to consider is any license restrictions which will be applied to the Defendant's driver's license once they get it back. A five-year restriction of DWI Convictions whereby the Defendant cannot be found driving with a blood/alcohol concentration of .04 or more. Though one would think after having been previously convicted of Driving Under the Influence in North Carolina, most would avoid drinking and driving anything, many people believe they are probably safe to drive after only one drink. In reality, depending on the individual, one drink can lead to a blow of .04. Recently, I was successful in getting an acquittal for a client charged with violating their license restriction. My client refused to provide a breath sample and the State elected not to obtain a blood sample. Since the State had no scientific evidence as to what, exactly my client's Blood/Alcohol Concentration was, I argued that the State failed to prove beyond a reasonable doubt that my client's BAC was at .04 or above. Lastly, and most importantly, in North Carolina, you DO NOT want to get a second DWI after having previously been convicted. If the prior DWI conviction was within the preceding 7 years prior to the new DWI, that is a Grossly Aggravating Factor. One North Carolina Grossly Aggravating Factor will result in a minimum mandatory jail sentence of 7 days. Obviously, there are other consequences, namely the fact that the conviction will show up on the Defendant's record. Obviously, it is recommended to never get charged with a DWI in North Carolina, but if you have been, seek legal counsel immediately. If you received a DWI, or any other Traffic or Criminal citation in the Research Triangle Area, contact the Matheson Law Office, Pllc for assistance.

North Carolina DWI Law: Your Right to Refuse

I believe I have cased over this topic in previous blogs, but this is of such importance, I feel I need to go over it once more (and probably will periodically in hopes of it helping potential DWI Defendant's). For those faced with a North Carolina DWI Stop, and specifically a Raleigh DWI Stop many things happen very quickly for which you are likely not prepared for. As a Raleigh DWI Lawyer and Cary DWI Lawyer, most of my clients address their concerns with me regarding what happened during their stop and what it means. What I am speaking about specifically is the questioning, the pre-exit tests, Field Sobriety Test and the Portable Breathalyzer Test. Obviously, there is more to a DWI stop (and eventual arrest) for which a Defendant can be confused, but this article is going to focus on the pre-arrest steps that the Police Officer takes and what options you have available for you.

First, and most important, ALL requests of the Driver which occurs prior to the Driver being arrested CAN (AND SHOULD) BE REFUSED! That's right, refuse to answer questions, refuse to participate in pre-exit tests (normally in the form of counting, alphabet or finger dexterity tests), refuse to participate in any Field Sobriety Tests and refuse to blow into the Portable Breathalyzer Test (not to be confused with the Intoxilyzer or Intoximeter, which are the machines you blow in after your arrest). Each and every one of these functions of a DWI stop are done voluntarily and you have the right to refuse to do any of them. Though you may still be arrested if you refuse to participate, you are doing yourself a favor by refusing in assisting me with your North Carolina DWI Defense.

You see, these tests serve two purposes for the Police Officer: 1. they allow them to build enough evidence to find Probable Cause to justify your arrest and 2. they are used as evidence against you at your trial and/or North Carolina DWI Sentencing. Most people do not know that these questions and tests are participated in voluntarily and normally agree to do them for one of two reasons; either because they believe they are required to cooperate or they believe it will help them with their ticket. The fact is, there is no requirement to consent to any of these tests and no requirement to answer the Police Officer's questions. Additionally, unless you stone-cold sober, chances are performing these tests are not going to get you out of being arrested and certainly will not help if you have been drinking.

Worse then these misconceptions about what a Driver is required to do is the fact that Police Officers are aware that people have the misconceptions and use that to their advantage. I can't tell you how many times my clients have told me that an officer "asked" them to perform a test by simply saying "I'm going to have you perform some tests, okay?" The phrasing carries with it the tone that the Officer is acting within the scope of what they can have you do. I've even had one client tell me his Officer told him "I'm going to have you perform one more test, then I'll probably let you go." The Officer said this after each of the three Field Sobriety Tests and, as you can guess considering he is my client, ended up arresting him.

Lastly, just to be sure we are completely clear, what I have recommended with regards to refusing to participate in any pre-arrest questions and/or tests does not carry over to post-arrest where the Driver is asked to blow into the Intoxilyzer or Intoximeter. This request to blow is done under North Carolina's Implied Consent Law and carries with it a mandatory one-year suspension of driving privileges if you refuse. Additionally, the Driver will not be able to get a Limited Driving Privilege for the first 6 months. Lastly, if the Driver refuses, the Officer can still get a warrant and draw their blood for evidence. For these reasons, whether to refuse the Intoxilyzer or Intoximeter is a personal decision which every individual needs to make and I make no recommendations one way or the other.

So, if you are ever facing a DWI stop, remember to refuse to answer any questions and refuse to participate in any tests.

North Carolina Field Sobriety Test: Horizontal Gaze Nystgamus

Previously on the Raleigh DWI Attorney Blog I have discussed North Carolina DWI Stops and the administration of Field Sobriety Tests; specifically the Walk and Turn Test and the One-Legged Stand Test.  I will now review the third test, known as the Horizontal Gaze Nystagmus Test.  As a Durham DWI Attorney and a Raleigh DWI Attorney, I believe having an understanding of each of these tests is important.

This test is familiar to most as the test whereby the Driver is asked to keep their head still while they track a stimulus as it moves in front of their face.  A common misconception regarding this tests is that it is designed to see whether you are able to follow the stimulus without moving your head.  And while that will likely be recorded if you are not able to do so, that is not the main purpose of the tests.  Below I will review how the test is administered as well as what 'clues' the Police Officer is looking for.

To begin, the officer asks the Driver to keep their head still.  The Officer should look to make sure the Driver's pupils are equal and that the eyes track evenly, that is, both eyes move together.  The Police Officer will then move the stimulus (normally a pen, small light, or their finger) from the center of the Driver's face towards the Driver's shoulders keeping it 10-12 inches from the Driver's face.  The Police officer will do this several times.  Eventually, the Police Officer will hold the stimulus out towards the outside of the Driver's Peripheral vision.

During the first part of the test, as the stimulus is moved back and forth, the Officer is looking for what is known as 'smooth pursuit.'  Smooth pursuit is where the eyes track the stimulus smoothly.  Someone who may be intoxicated may have trouble with this and their eyes will 'fall behind' and then 'catch up' to the stimulus.  

Next, the officer will look for what is called Nystagmus prior to the eyes reaching 45 degrees from the center of their face.  Nystagmus is an involuntary twitching of the eye.  This twitching can be caused by many things, but can be present when someone is intoxicated.    For this test, the Officer is looking for Nystagmus to appear in the eyes prior to the eye reaching the 45 degrees previously mentioned.

Lastly, the officer will hold the stimulus out to the edge of the Driver's vision.  The stimulus should be held there for at least 4 seconds.  The Officer is looking for 'distinct' Nystagmus when the eyes are looking to their peripherals.  Though this is normally present even in sober people, since the eye grows tired of holding that position, those that are intoxicated can have a more 'distinct' Nystagmus that Officers are trained to spot.  

For these three tests, the officers are looking for 6 clues, 3 per eye: 1.  lack of smooth pursuit, Nystagmus prior to onset of 45 degrees, and Nystagmus at maximum deviation (looking at your peripherals).  

Occasionally, the Officers will also perform a Vertical Nystagmus test where they will hold the stimulus towards the upper part of the Driver's vision.  Nystagmus at this point tends to appear in those who are substantially impaired.