So, I recently got to read an article about a Missouri Driver who was cited for flashing his headlight to warn oncoming of a speed trap down the road. As is a common practice among motorist, this driver observed a Police Officer on the side of the road checking people's speed with a radar gun. The Driver decided to flash his headlights to oncoming traffic so they would be aware of the Police Officer and ideally would slow down (which is what the police want in the first place, right?). The same police officer ended up pulling this driver over and ticketed him under some obscure local law dealing with flashing lights on certain vehicles.
As is completely and totally appropriate, the Driver has filed suit against the city for violating his free speech rights. As his attorney explained in the article, his conduct of flashing his lights would be no different then stopping into a truck stop and mentioning it to other drivers. The Government is EXTREMELY limited in it's ability to infringe on an individuals' free speech. From the perspective of this Wake County Traffic Attorney, flashing his lights was a form of communication that the State has no justifiable reason to try and deter.
Apparently, this was not the first time an individual was ticketed for flashing his lights. There was a driver in Florida who filed suit in to 2011 for the same reason. Apparently, that case was dropped after that police force issued an order requiring their officers to not issue tickets for someone flashing their lights.
Certainly, it can be frustrating for the Police Officers, when they are attempting to conduct traffic safety patrols and their efforts are thwarted by the public communicating with each other; here's the problem with that position. 1. The Police have A LOT of advantages in their efforts of citing and apprehending individuals for traffic and/or criminal matters. The sheer wealth of knowledge they have with regards to investigating and the requirements to meet standards of proof put the general public at an extreme disadvantage, let alone all of the technology, research, etc. they have at their disposal. 2. A driver flashing their lights hopefully has the effect of causing drivers to slow down, and isn't that really the reason for the police presence on the road in the first place (at least, one of the reasons). Unless, of course, it could be to issue tickets and generate revenue, but certainly that's not the case.
Honestly, all joking aside, this action by the police is disturbing. There was no good reason for the police officer to pull this driver over and issue a ticket. Their conduct, in no way, jeopardized other drivers, and did no violate any laws. The only logical conclusion was to punish this driver, and deter others from the same conduct.
If you are in need of a Wake County Traffic Attorney, the Matheson Law Office would be happy to discuss your case with you and provide you with a Free Consultation. Contact us at 919-335-5291 and we'll go over your case with you.
Showing posts with label Raleigh Criminal Attorney. Show all posts
Showing posts with label Raleigh Criminal Attorney. Show all posts
Tuesday, July 23, 2013
Thursday, July 11, 2013
Raleigh DWI Law | Know Your Rights!
So, over the past few weeks I have been asked by several people about what actions they or others took during a traffic stop and whether they were correct or not. There is a lot of confusion on what a driver can and cannot do during a traffic stop. As a Raleigh Criminal Defense Attorney, I try and make sure my clients are aware of their rights, but if they are hiring me, it is often too late to preserve their rights for the present charges. Therefore, I'm going to write this blog about what a driver should do during a traffic stop.
First, let me be clear that this post is for all traffic stops, not just DWI (even though it is on a DWI blog page). Second, at no time do I recommend a driver to be short and/or rude with a Police Officer. Regardless of what you may think of their conduct or whether you deserved to be stop or not, these are people just like you that are doing their job; it's never personal. Additionally, being rude is almost a guaranteed way to make matters worse for you.
Okay, first thing everyone needs to know is YOU DO NOT HAVE TO ANSWER ANY QUESTIONS! Some people think that if they have not been read their Miranda Rights, their statements cannot be used against them. Miranda Rights only come into play once a Defendant is in custody AND they are being questioned by police (i.e. 'spontaneous statements,' even if made while in custody, are still admissible). When a Police Officer approaches you and asks you a question, there is NO obligation that you answer it. My recommendation to my clients is to politely tell the Officer "I respect what you do, but I refuse to answer any questions."
Second, YOU DO NOT HAVE TO CONSENT TO A SEARCH! Whether the Police Officer asks for your consent to search your person or your vehicle, you are under no obligation to consent. Now, it's important to remember that consenting to a search and prohibiting a search are two entirely different things. Under many circumstances, a Police Officer may be able to search you, your vehicle, your home, etc. whether you consented or not. However, if they lack any of the permissible reasons to search, then your consent is the only way they may be able to forward their investigation. Now, I often hear people say, "I have nothing to hide, so what's the harm?" Unless you are the only person in constant possession of your vehicle 24 hours a day, 7 days a week, is it really worth the risk? That valet, mechanic, friend, family member, etc. may have left something in your car that you were unaware of but you may be responsible for if it is found. Also, it's worth noting that I have had clients share with me that Police Officers have tried to persuade them to consent by using statements like "I'm going to search your vehicle, okay?" or "If you provide me with the (contraband) I'll only cite you, if I have to get a search warrant, I'm going to arrest you if I find anything." Ultimately it up to you whether you want to comply, but in many cases, the State may have not have had a case against the Defendant had they not consented to the search.
Third, YOU DO NOT HAVE TO PERFORM ANY FIELD SOBRIETY TESTS! Obviously this deals with Driving While Impaired more then any other traffic matter, but it also very important. The tests the Police Officer asks you to perform after the traffic stop, but before the arrest, are referred to as the Field Sobriety Tests. This can involve what is known as 'Pre-Exit Tests' which may include counting or the alphabet. Also included are the better known 'Standardized Field Sobriety Tests' which includes the Walk and Turn, the One-Legged Stand and the Horizontal Gaze Nystagmus tests (eye test). Additionally, the hand-held breathalyzer (commonly referred to as the 'Alcosensor) is included in the list of things you are not required to perform. Each one of these tests is used by the State to try and build evidence against the driver in order to convict them. Unless you are stone sober and have not had anything to drink, it's not recommended that you perform any of these tests. As mentioned before, I have received reports of some pretty tricky ways Police go about trying to convince drivers to go along with the tests. Statements like "I'm going to have you perform some tests for me, okay?" Or my favorite was "I'm probably just going to let you go, but do this one test for me so I can be sure."
I want to put in an important exception here: I am not recommending either way whether you should blow in the Intoxilyzer. The Intoxilyzer is the machine the Police ask you to blow in AFTER you have been arrested. It is a big machine on a table top and takes place at a Police Station. The reason I do not make a recommendation is, unlike everything else I have mentioned, there are consequences that come with refusing to blow in this machine. A refusal will lead to 6 months of license suspension. Additionally, the fact that you refused is admissible in court as a 'guilty conscious' and the State may end up drawing your blood anyways, so the refusal may not have done anything to assist you.
Now that we have discussed what you don't have to do during a traffic stop, let's talk about what you MUST DO. First, you must provide the Police Officer with your license and registration. By driving on a North Carolina street or highway, you consent to present these documents whenever requested by the Police. Second, if the Police ask you to exit your vehicle, you are required to do so. This request is being made for the safety of the Police Officer and refusal to exit will likely lead to a forced removal and a charge of Resist, Delay or Obstruct a Police Officer. Third, if the Officer tells you they are going to search your person, car, or ask you to stand or sit in a certain location, you are required to comply, even if you haven't consented. Again, there are many circumstances where a Police Officer may have the right to search you or your vehicle and refusing to consent won't change that, however refusing to comply will likely lead to an Obstruction charge.
So, these are the basics of how best to handle traffic stops. Certainly there are many other things that can affect the likelihood of a Driver being convicted beyond what actions they took after the stop. If you are facing a Wake County Traffic Ticket, DWI Charge or Criminal Charge, contact the Matheson Law Office for your free consultation.
First, let me be clear that this post is for all traffic stops, not just DWI (even though it is on a DWI blog page). Second, at no time do I recommend a driver to be short and/or rude with a Police Officer. Regardless of what you may think of their conduct or whether you deserved to be stop or not, these are people just like you that are doing their job; it's never personal. Additionally, being rude is almost a guaranteed way to make matters worse for you.
Okay, first thing everyone needs to know is YOU DO NOT HAVE TO ANSWER ANY QUESTIONS! Some people think that if they have not been read their Miranda Rights, their statements cannot be used against them. Miranda Rights only come into play once a Defendant is in custody AND they are being questioned by police (i.e. 'spontaneous statements,' even if made while in custody, are still admissible). When a Police Officer approaches you and asks you a question, there is NO obligation that you answer it. My recommendation to my clients is to politely tell the Officer "I respect what you do, but I refuse to answer any questions."
Second, YOU DO NOT HAVE TO CONSENT TO A SEARCH! Whether the Police Officer asks for your consent to search your person or your vehicle, you are under no obligation to consent. Now, it's important to remember that consenting to a search and prohibiting a search are two entirely different things. Under many circumstances, a Police Officer may be able to search you, your vehicle, your home, etc. whether you consented or not. However, if they lack any of the permissible reasons to search, then your consent is the only way they may be able to forward their investigation. Now, I often hear people say, "I have nothing to hide, so what's the harm?" Unless you are the only person in constant possession of your vehicle 24 hours a day, 7 days a week, is it really worth the risk? That valet, mechanic, friend, family member, etc. may have left something in your car that you were unaware of but you may be responsible for if it is found. Also, it's worth noting that I have had clients share with me that Police Officers have tried to persuade them to consent by using statements like "I'm going to search your vehicle, okay?" or "If you provide me with the (contraband) I'll only cite you, if I have to get a search warrant, I'm going to arrest you if I find anything." Ultimately it up to you whether you want to comply, but in many cases, the State may have not have had a case against the Defendant had they not consented to the search.
Third, YOU DO NOT HAVE TO PERFORM ANY FIELD SOBRIETY TESTS! Obviously this deals with Driving While Impaired more then any other traffic matter, but it also very important. The tests the Police Officer asks you to perform after the traffic stop, but before the arrest, are referred to as the Field Sobriety Tests. This can involve what is known as 'Pre-Exit Tests' which may include counting or the alphabet. Also included are the better known 'Standardized Field Sobriety Tests' which includes the Walk and Turn, the One-Legged Stand and the Horizontal Gaze Nystagmus tests (eye test). Additionally, the hand-held breathalyzer (commonly referred to as the 'Alcosensor) is included in the list of things you are not required to perform. Each one of these tests is used by the State to try and build evidence against the driver in order to convict them. Unless you are stone sober and have not had anything to drink, it's not recommended that you perform any of these tests. As mentioned before, I have received reports of some pretty tricky ways Police go about trying to convince drivers to go along with the tests. Statements like "I'm going to have you perform some tests for me, okay?" Or my favorite was "I'm probably just going to let you go, but do this one test for me so I can be sure."
I want to put in an important exception here: I am not recommending either way whether you should blow in the Intoxilyzer. The Intoxilyzer is the machine the Police ask you to blow in AFTER you have been arrested. It is a big machine on a table top and takes place at a Police Station. The reason I do not make a recommendation is, unlike everything else I have mentioned, there are consequences that come with refusing to blow in this machine. A refusal will lead to 6 months of license suspension. Additionally, the fact that you refused is admissible in court as a 'guilty conscious' and the State may end up drawing your blood anyways, so the refusal may not have done anything to assist you.
Now that we have discussed what you don't have to do during a traffic stop, let's talk about what you MUST DO. First, you must provide the Police Officer with your license and registration. By driving on a North Carolina street or highway, you consent to present these documents whenever requested by the Police. Second, if the Police ask you to exit your vehicle, you are required to do so. This request is being made for the safety of the Police Officer and refusal to exit will likely lead to a forced removal and a charge of Resist, Delay or Obstruct a Police Officer. Third, if the Officer tells you they are going to search your person, car, or ask you to stand or sit in a certain location, you are required to comply, even if you haven't consented. Again, there are many circumstances where a Police Officer may have the right to search you or your vehicle and refusing to consent won't change that, however refusing to comply will likely lead to an Obstruction charge.
So, these are the basics of how best to handle traffic stops. Certainly there are many other things that can affect the likelihood of a Driver being convicted beyond what actions they took after the stop. If you are facing a Wake County Traffic Ticket, DWI Charge or Criminal Charge, contact the Matheson Law Office for your free consultation.
Tuesday, July 2, 2013
Raleigh DUI Law | Use of 'Fake' Checkpoint Signs
So, recently in the news, I read where police officers in Cleveland, Ohio were using a ruse to try and apprehend individuals who may be driving on the road with drugs in their possession. Having handled many kinds of Wake County Checkpoint Cases, I am aware of the restrictions the Police were operating within and how this little ploy was used to somewhat circumvent restrictions on their ability to randomly stop individuals on the road.
In this particular case, the Police Force posted signs on a busy road indicating that a drug checkpoint with drug-sniffing dogs was ahead. The problem is, there is no such thing as a drug checkpoint. Under restrictions placed by our courts, including the Supreme Court, there are a limited number of reasons police can randomly stop drivers for a checkpoint. In North Carolina, the police are only permitted to utilize checkpoints to investigate for drunk drivers or to check driver's licenses.
So, if they cannot actually set up a 'drug checkpoint' what's the point of putting up signs indicating there is one ahead? Well, within proximity of those signs, police are staked out to see if anyone does a quick U-turn or throws something from their window, which may indicate they are scared of being caught at the checkpoint with drugs. See, since the majority of people do not realize that 'drug checkpoints' are illegal and unconstitutional, they assume the police to be truthful with these signs and act accordingly.
Okay, so this is creative and may not run afoul of the courts precedent that the checkpoint itself is not permitted. However, there are a couple of issues this Raleigh DWI Defense Attorney has with this approach. First, there is something inherently wrong with the police lying to the general public. As disconcerting as it may be to everyone, the truth is police can lie. If they are interrogating you, they can make up facts to try and persuade you to confess. And while I do not approve of those practices, at least it is tailored to suspects. However, by posting false information, in the hopes that individuals will 'show their cards' is something entirely different. I kind of look at this as 'The Boy Who Cried Wolf.' If the public comes to not trust signs posted by the police because they could be lies, what else should the police not trust in the conduct of their police?
My second issue with this approach is there seems to be some inherent risk of some presumed 'reasonable suspicion' based on actions the police may not like. You see, in order to justify a stop, regardless of the circumstances, the State must have articulable reasonable suspicion in order to justify the stop. This is related to the 4th Amendment of the U.S. Constitution which prohibits unreasonable searches and seizures (the exception, of course, are the checkpoints). So, when the police are staked out, looking for anyone who may want to avoid the imaginary checkpoint, or who otherwise may be doing something totally unrelated to the checkpoint, could be stopped because the police are purposefully looking for actions that otherwise may not amount to reasonable suspicion of criminal activity. As was the case with a recent driver stopped during this checkpoint. He reported that he pulled over to the side of the road twice to check his directions and was stopped by the police. It wasn't until the drug dog came and they searched his car did the police realize that he was not transporting drugs and was being truthful when he explained his reason for stopping. This individual was stopped for nothing more then because safety-minded by pulling over before verifying his directions - that does NOT amount to reasonable suspicion of criminal activity.
If you are facing a Wake County DWI Charge and are in need of quality legal representation, contact us at the Matheson Law Office for your free consultation. We will be happy to discuss your legal options and ensure your rights are preserved.
In this particular case, the Police Force posted signs on a busy road indicating that a drug checkpoint with drug-sniffing dogs was ahead. The problem is, there is no such thing as a drug checkpoint. Under restrictions placed by our courts, including the Supreme Court, there are a limited number of reasons police can randomly stop drivers for a checkpoint. In North Carolina, the police are only permitted to utilize checkpoints to investigate for drunk drivers or to check driver's licenses.
So, if they cannot actually set up a 'drug checkpoint' what's the point of putting up signs indicating there is one ahead? Well, within proximity of those signs, police are staked out to see if anyone does a quick U-turn or throws something from their window, which may indicate they are scared of being caught at the checkpoint with drugs. See, since the majority of people do not realize that 'drug checkpoints' are illegal and unconstitutional, they assume the police to be truthful with these signs and act accordingly.
Okay, so this is creative and may not run afoul of the courts precedent that the checkpoint itself is not permitted. However, there are a couple of issues this Raleigh DWI Defense Attorney has with this approach. First, there is something inherently wrong with the police lying to the general public. As disconcerting as it may be to everyone, the truth is police can lie. If they are interrogating you, they can make up facts to try and persuade you to confess. And while I do not approve of those practices, at least it is tailored to suspects. However, by posting false information, in the hopes that individuals will 'show their cards' is something entirely different. I kind of look at this as 'The Boy Who Cried Wolf.' If the public comes to not trust signs posted by the police because they could be lies, what else should the police not trust in the conduct of their police?
My second issue with this approach is there seems to be some inherent risk of some presumed 'reasonable suspicion' based on actions the police may not like. You see, in order to justify a stop, regardless of the circumstances, the State must have articulable reasonable suspicion in order to justify the stop. This is related to the 4th Amendment of the U.S. Constitution which prohibits unreasonable searches and seizures (the exception, of course, are the checkpoints). So, when the police are staked out, looking for anyone who may want to avoid the imaginary checkpoint, or who otherwise may be doing something totally unrelated to the checkpoint, could be stopped because the police are purposefully looking for actions that otherwise may not amount to reasonable suspicion of criminal activity. As was the case with a recent driver stopped during this checkpoint. He reported that he pulled over to the side of the road twice to check his directions and was stopped by the police. It wasn't until the drug dog came and they searched his car did the police realize that he was not transporting drugs and was being truthful when he explained his reason for stopping. This individual was stopped for nothing more then because safety-minded by pulling over before verifying his directions - that does NOT amount to reasonable suspicion of criminal activity.
If you are facing a Wake County DWI Charge and are in need of quality legal representation, contact us at the Matheson Law Office for your free consultation. We will be happy to discuss your legal options and ensure your rights are preserved.
Wednesday, June 26, 2013
Raleigh DWI Attorney | Cost of a DWI in North Carolina
So, recently I was having a discussion with my legal assistant about how much a DWI will cost a Driver and how I believe if more people realized the cost and hassle that comes from them, less people would be willing to risk catching one of these charges.
First, let me be very clear, as a Raleigh DUI Attorney, the more serious ramifications from driving while impaired are very well known to me. The injuries, death, and property damage that can come from an auto accident is very serious and the likelihood of said accident is compounded when introducing alcohol. That being said, most people do not think they will get in an accident ever, so arguing that point may not be as persuasive as what it will mean to their checkbook. So, with that cleared up, let's discuss what can be expected if you are charged and convicted of a DWI.
So, for starters, if charged with a DWI, the headaches come fast and severe. Even in a best case scenario, a Driver can expect they will lose their license for 30 days just for having been CHARGED with a DWI. Now, most driver's are eligible to get a Limited Driving Privilege after 10 days, but that is still 10 days of not driving just for being charged. Additionally, the Limited Driving Privilege requires the Driver to get a Substance Abuse Assessment ($100.00), a certified copy of their driving record ($11.00) and the Privilege itself costs $100.00. After 30 days, the Driver can get their license back, but that also costs $100.00. So, just for starters, at a minimum, a DWI Charge will cost at least $100.00 to get back their license, and potentially another $111.00 for the ability to drive 19 of the 30 days of suspension period.
Now, setting aside the cost of a defense attorney (this particular Raleigh DWI Attorney charges $1,500 for representation of a DWI Charge) let's discuss the absolute best outcome a driver could expect if they were convicted of the DWI (this is working on the assumption they don't fight the charge, in which case, they will definitely want a DWI attorney in their corner). The best possible outcome for a DWI charge in Wake County, and I would assume anywhere else in the other 99 counties of North Carolina, is a Level 5. While a friends, brothers, former boss may have a story about having it reduced to Careless and Reckless, those days have passed. Additionally, North Carolina does not offer a 'First-Offender' DWI or a 'Low Blood/Alcohol Concentration' DWI, all DWI's are subject to the same sentencing structure whether it's your first or fifth or you have a BAC of .08 or .28.
So, a Level 5 DWI carried with a fine of up to $200.00 and normally 24 hours of community service of 24 hours in jail (the Judge can elect to give you more community service or jail, but not less). Most people elect the community service as they don't want to spend the night in jail, however the community service program costs $250.00. With the addition of court costs and various other fines and fees that come with a DWI conviction, a Driver can expect to pay approximately $650.00-$750.00 for a Level 5 Judgment with community service.
In addition to the costs associated with the conviction, there are other costs that come from a DWI Sentence. First, if not already completed, the Driver will be required to complete a Substance Abuse Assessment ($100.00) and follow any recommended treatment. If you have already done the Assessment before for the Limited Driving Privilege, then you will not have to do it again so long as you started treatment within 6 months of the Assessment. The minimum recommended treatment is the Alcohol and Drug Education Traffic School ($160.00) but more intensive treatment may be recommended and cost will go up accordingly. Also with a DWI conviction, the Driver will have their license suspended for 1 year. During that period, the Driver may be eligible for a Limited Driving Privilege, with the same requirements as mentioned before, including the $100.00 cost to the court. Lastly, a DWI conviction in North Carolina allows insurance providers to increase premiums as much as 400% for the following three years. Therefore, an individual that pays $400.00/year can expect to pay $1,600.00 a year for the next three years (or the additional total cost of $3,600.00 over that three years).
It is also worth mentioning that for individuals with a BAC of .15 or above there are added burdens and costs that I won't get into now.
So, needless to say, even without the cost of hiring a Wake County DWI Attorney or DWI Attorney in your area, you can expect an exuberant amount of costs as a result of a DWI charge and conviction.
If you are need of legal representation in Wake county for traffic or criminal charges, please feel free to contact my office for a free consultation at 919-335-5291.
First, let me be very clear, as a Raleigh DUI Attorney, the more serious ramifications from driving while impaired are very well known to me. The injuries, death, and property damage that can come from an auto accident is very serious and the likelihood of said accident is compounded when introducing alcohol. That being said, most people do not think they will get in an accident ever, so arguing that point may not be as persuasive as what it will mean to their checkbook. So, with that cleared up, let's discuss what can be expected if you are charged and convicted of a DWI.
So, for starters, if charged with a DWI, the headaches come fast and severe. Even in a best case scenario, a Driver can expect they will lose their license for 30 days just for having been CHARGED with a DWI. Now, most driver's are eligible to get a Limited Driving Privilege after 10 days, but that is still 10 days of not driving just for being charged. Additionally, the Limited Driving Privilege requires the Driver to get a Substance Abuse Assessment ($100.00), a certified copy of their driving record ($11.00) and the Privilege itself costs $100.00. After 30 days, the Driver can get their license back, but that also costs $100.00. So, just for starters, at a minimum, a DWI Charge will cost at least $100.00 to get back their license, and potentially another $111.00 for the ability to drive 19 of the 30 days of suspension period.
Now, setting aside the cost of a defense attorney (this particular Raleigh DWI Attorney charges $1,500 for representation of a DWI Charge) let's discuss the absolute best outcome a driver could expect if they were convicted of the DWI (this is working on the assumption they don't fight the charge, in which case, they will definitely want a DWI attorney in their corner). The best possible outcome for a DWI charge in Wake County, and I would assume anywhere else in the other 99 counties of North Carolina, is a Level 5. While a friends, brothers, former boss may have a story about having it reduced to Careless and Reckless, those days have passed. Additionally, North Carolina does not offer a 'First-Offender' DWI or a 'Low Blood/Alcohol Concentration' DWI, all DWI's are subject to the same sentencing structure whether it's your first or fifth or you have a BAC of .08 or .28.
So, a Level 5 DWI carried with a fine of up to $200.00 and normally 24 hours of community service of 24 hours in jail (the Judge can elect to give you more community service or jail, but not less). Most people elect the community service as they don't want to spend the night in jail, however the community service program costs $250.00. With the addition of court costs and various other fines and fees that come with a DWI conviction, a Driver can expect to pay approximately $650.00-$750.00 for a Level 5 Judgment with community service.
In addition to the costs associated with the conviction, there are other costs that come from a DWI Sentence. First, if not already completed, the Driver will be required to complete a Substance Abuse Assessment ($100.00) and follow any recommended treatment. If you have already done the Assessment before for the Limited Driving Privilege, then you will not have to do it again so long as you started treatment within 6 months of the Assessment. The minimum recommended treatment is the Alcohol and Drug Education Traffic School ($160.00) but more intensive treatment may be recommended and cost will go up accordingly. Also with a DWI conviction, the Driver will have their license suspended for 1 year. During that period, the Driver may be eligible for a Limited Driving Privilege, with the same requirements as mentioned before, including the $100.00 cost to the court. Lastly, a DWI conviction in North Carolina allows insurance providers to increase premiums as much as 400% for the following three years. Therefore, an individual that pays $400.00/year can expect to pay $1,600.00 a year for the next three years (or the additional total cost of $3,600.00 over that three years).
It is also worth mentioning that for individuals with a BAC of .15 or above there are added burdens and costs that I won't get into now.
So, needless to say, even without the cost of hiring a Wake County DWI Attorney or DWI Attorney in your area, you can expect an exuberant amount of costs as a result of a DWI charge and conviction.
If you are need of legal representation in Wake county for traffic or criminal charges, please feel free to contact my office for a free consultation at 919-335-5291.
Tuesday, June 4, 2013
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.
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.
Tuesday, April 3, 2012
North Carolina Criminal Law | YOUR Court Date!
Back again to posting about my experience as a Raleigh DWI Lawyer and Raleigh Criminal Attorney. Today I found myself in a familiar, if not uncomfortable position. I was in court this A.M. for a court-appointed client. I waited one and a half hours for him to arrive, which he never did. I made a motion to continue the case, however the Judge denied my motion and issued an Order for Arrest. The Judge may have been willing to grant my motion had my client gotten in touch with me before his court date to let me know WHY he was unable to attend today. As it was, I had to admit to the Judge that I have had no contact with this client and could offer no explanation for his absence. To add insult to injury (which I obviously didn't share with the Judge) this client was over an hour late to his previous court date.
I realize coming to court is a big inconvenience. It's schedule during the week, when most people are working. To take time out of your work/life and come sit in a boring courtroom is nobody's idea of fun. But, regardless of how inconvenient it may be, it is still a REQUIREMENT that you attend. This is your court date, and your appearance is mandatory for most North Carolina Criminal Charges.
If, for some reason, you are unable to attend, it is imperative that you contact your Attorney BEFORE your court date so they may have a chance of getting the case continued without you present. Otherwise, you need to be seated in court, on time.
Something to consider, other then having an Order for Arrest being issued against you, is what your Failure to Appear in court can mean for your case. Your Shuck (the envelope which contains all the paperwork about your case) will be marked that you missed your court date. This is something that District Attorneys AND Judge's look at. They pay particular attention to it when being asked for a lenient plea or sentence for that individual's case. The court's position is, everyone else who is required to be there for your case was present, so why weren't you?
So, as a recommendation, do not miss your court date, and if you have something come up, contact your Raleigh DUI Attorney or Raleigh Criminal Attorney as soon as possible!
I realize coming to court is a big inconvenience. It's schedule during the week, when most people are working. To take time out of your work/life and come sit in a boring courtroom is nobody's idea of fun. But, regardless of how inconvenient it may be, it is still a REQUIREMENT that you attend. This is your court date, and your appearance is mandatory for most North Carolina Criminal Charges.
If, for some reason, you are unable to attend, it is imperative that you contact your Attorney BEFORE your court date so they may have a chance of getting the case continued without you present. Otherwise, you need to be seated in court, on time.
Something to consider, other then having an Order for Arrest being issued against you, is what your Failure to Appear in court can mean for your case. Your Shuck (the envelope which contains all the paperwork about your case) will be marked that you missed your court date. This is something that District Attorneys AND Judge's look at. They pay particular attention to it when being asked for a lenient plea or sentence for that individual's case. The court's position is, everyone else who is required to be there for your case was present, so why weren't you?
So, as a recommendation, do not miss your court date, and if you have something come up, contact your Raleigh DUI Attorney or Raleigh Criminal Attorney as soon as possible!
Friday, September 16, 2011
North Carolina Field Sobriety Test: One-Legged Stand
So, this will be an overview of North Carolina DWI Field Sobriety Tests. The three main Field Sobriety Tests used by police officers are the One-Legged Stand, the Walk-and-Turn, and the Horizontal Gaze Nystagmus test. Today's Raleigh DWI Attorney Blog will deal with the One-Legged Stand. As a Raleigh DWI Attorney or DWI Attorney Raleigh, I have had ample opportunity to explore each of these tests.
Field Sobriety Tests are those tests requested (note: NOT required) of people the Officer feel may be Driving While Impaired. They are performed outside of the vehicle, normally on the side of the road or the nearest safe location. The 'Standardized Field Sobriety Test' (as it is officially known) was created by the National Highway Traffic Safety Administration. The purpose of the tests is to ascertain whether the person being tested is "appreciable impaired" such that they have violated the North Carolina DWI law.
First to be evaluated is the One-Legged Stand. In this test, the Driver is requested to first stand with their feet shoulder-width apart as the instructions are given. The Officer will explain the Driver is to stand on one foot, whichever the Driver chooses, while elevating the other foot 6-8 inches off the ground. The elevated foot should be pointed straight up. The Driver is to keep their hands at their side and stare at their foot while they count to 30 to themselves. Once 30 has been reached, the Driver can put their foot down and the test is over.
During the test, the officer is looking for several 'clues.' 'Clues' are what is suppose to indicate whether the driver is appreciable impaired. Obviously, the more 'clues' the Officer observes, the more likely the driver is impaired. The clues for the One-Legged Stand are putting the elevated foot down before 30, swaying, using hands for balance, and hopping to maintain balance.
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.
Field Sobriety Tests are those tests requested (note: NOT required) of people the Officer feel may be Driving While Impaired. They are performed outside of the vehicle, normally on the side of the road or the nearest safe location. The 'Standardized Field Sobriety Test' (as it is officially known) was created by the National Highway Traffic Safety Administration. The purpose of the tests is to ascertain whether the person being tested is "appreciable impaired" such that they have violated the North Carolina DWI law.
First to be evaluated is the One-Legged Stand. In this test, the Driver is requested to first stand with their feet shoulder-width apart as the instructions are given. The Officer will explain the Driver is to stand on one foot, whichever the Driver chooses, while elevating the other foot 6-8 inches off the ground. The elevated foot should be pointed straight up. The Driver is to keep their hands at their side and stare at their foot while they count to 30 to themselves. Once 30 has been reached, the Driver can put their foot down and the test is over.
During the test, the officer is looking for several 'clues.' 'Clues' are what is suppose to indicate whether the driver is appreciable impaired. Obviously, the more 'clues' the Officer observes, the more likely the driver is impaired. The clues for the One-Legged Stand are putting the elevated foot down before 30, swaying, using hands for balance, and hopping to maintain balance.
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.
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