Raleigh DWI Attorney | Silence is NOT Golden for Criminal Defendants

So, recently there was a very important ruling by the U.S. Supreme Court in case that will have far reaching implications for those facing hiring this Wake County Criminal Defense Attorney,  as well as the rest of the country.  The case in questions, Salinas V. Texas, deals with an individual being questioned by police regarding a homicide.  The Defendant in this case was answering questions by the police but elected not to answer one specific question.  As a result, his silence was used to convicted him of murder. 

In this particular case, Mr. Salinas was being questioned by the police, but was not yet in custody.  This is a very important detail due to the fact that had he been in custody, the police would have been required to read him his 'Miranda Warning' prior to questioning him, otherwise his responses, or lack there of, would be inadmissible. 

Now, 'Miranda' can be a bit confusing as most people's understanding of this right derives from what they have seen on Law and Order, and that's not accurate.  It is very common for those hiring this Raleigh DWI Attorney and Criminal Attorney to think their case is solid because they were not 'Mirandized' but that is just not the case.  First, your right to remain silent and your right to have an attorney present for any question is in place regardless of when you are dealing with the police and whether you are in custody or not.  Most people do not realize that they are completely within their right to refuse to answer any questions by the police.  The second, and often times more confusing, issue with Miranda is exactly WHEN the police are required to inform you of your rights.  Even though TV cops always 'Mirandize' Defendants the second they take them into custody, the reality is, that is not required and not often practiced.  The point that police are required to inform you of your Miranda rights is when you are in custody AND you are being questioned by police.  I'm certain it would seem that just out of convenience, police would simply 'Mirandize' the Defendant when they are being arrested and then they can question them once the Defendant decides whether to invoke those rights or not.  The reality is, unfortunately, much more sinister.

Since people believe that, if they are being taken into custody, and have not been Mirandized, that they are safe.  At a minimum, most people believe that their statements can't be used, or worse that their whole arrest will be thrown out.  Actually, not only will your case not be dismissed because you weren't given your Miranda rights when being arrested, but any 'spontaneous statements' you made after your arrest are admissible in court.  'Spontaneous statements' are things Defendants say, after being taken into custody but without any questioning by the police.  Most of the time, these are things said by the Defendant in the back of the cruiser.  What's even worse, police know that most people have these misconceptions, and so they intentionally won't 'Mirandize' the Defendant, not ask them any questions, and record anything they say while in custody. 

This brings us full circle to the ruling in Salinas v. Texas.  The Supreme Court has ruled that a Defendant's refusal to answer a question can be used in their trial as evidence against them.  Now, in Salinas' case, it was a 'significant silence' in that he had been answering the questions of the police, except for one question dealing specifically with shell casing at his residence.  However, the fact that the court ruled the silence is admissible as evidence can have far reaching impacts in other cases.  The State may attempt to argue that any refusal to answer questions is evidence of a guilty conscious, though any defense attorney (including this Raleigh Criminal Defense Attorney) has argued that invoking the right to remain silent is evidences of a guilty conscious, rather it's simply a citizen enjoying the benefit of their Constitutional Rights.  From there, what the sitting Judge may do with this objection given the ruling in Salinas is hard to say.

Regardless, what is most important to take away from this recent ruling is 1. invoke your right to remain silent and to have legal representation early and without hesitation and 2. hire a capable defense attorney to represent your interest there after.

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.

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!