North Carolina Criminal Law | Catching a Break

Well, it's been a bit, but I am back to posting on the Raleigh DWI blog (hopefully a little more often then lately). I wanted to share with those that follow my blog about some sound advice that, for some reason, can sometimes fall on deaf ears.

Though I enjoy my practice as a Raleigh DWI Lawyer and Raleigh Criminal Lawyer, recently I have been attempting to take on more juvenile cases. This interest in helping the youth of our society has been something I have had an interest in since High School. Even back then, I volunteer as a Teach Assistant to a second grade class while I was a Junior in High School. I also volunteered as a 'Big Brother' to a young man in my community who was going through a tough time.

Not too long into my career as an Attorney, I decided that I wanted get back to giving back to our community by volunteering with youth focused programs. I actively participate with the Capital Area Teen Court Program as well as the North Carolina Bar Associations Lunch-with-a-Lawyer program. Through my participation with this program, I realized I could be doing more by trying to focus a part of my practice to representing juveniles and young adults facing their first offense.

Most of my cases stem from North Carolina Marijuana Possession, property crimes, and other minor misdemeanors. I make it a point to discuss with my clients the seriousness of their charges and what it is they could potential face if convicted, including what it will mean for the future.

In most cases, I can normally arrange my client to participate in some form of a first offender's type program which can lead to the charges ultimately being dismissed against them. These potential dismissals should serve as a wake-up call to my young clients as to the 'bullet' they just dodged and I encourage them to stay on the right path (which is also a requirement while they are participating in these programs).

Recently, I had a client who hired me after being charged with Misdemeanor Possession of Marijuana and Misdemeanor Drug Paraphernalia. I had made arrangements for this client to participate in my beloved Teen Court, which would have led to having her charges dismissed. Three weeks after hiring me, I received a frantic call over the weekend. My client was not only arrested with more Marijuana, but the levels were such that she faced two Felonies and another Misdemeanor charge.

Obviously, my client was upset, as was her mother. Though my client now faced some serious consequences which could have serious ramifications on the rest of her future, I was able to get both felonies and the new misdemeanor dropped after discussing the case with the D.A. (there was some issues with the stop).

I guess this blog is just a reminder to those out there who may have caught a break and were able to get a sweetheart deal in criminal court to not mess up again as it is not nearly as easy to avoid new charges once you have gotten out of some before.

Good luck out there!

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 Criminal Court | Why Is This Taking So Long?

This morning, I was sitting in Raleigh District Court on a small matter for one of my clients. As a Raleigh DWI Lawyer and a Raleigh Criminal Attorney this is something I do often, whether for a Raleigh DWI Ticket or a North Carolina Criminal Citation. As I was waiting for my turn to address this issue with the District Attorney, I overheard comments made by the gentlemen seated behind me in the general seating area for the general public. "Five minutes and they have only called up one case." "I've been here for almost an hour and they've only gone through 5 cases." "Why is this taking so long?"

The funny thing about these comments was, in the hour in which I was in court this morning, and these comments were being made continuously, the number of defendants in this same area was cut almost in half, even though the Judge probably only called up 10-15 cases (the calender for today probably had 80-90 names on it). The reality is, while these guys were sitting their complaining about what they thought was inactivity on the part of the court personnel, the reality was A LOT was going on right in front of them. Therefore, I decided today's post would be about what appears to be happening up front at court, and what really is going on.

Let me start by saying, not only have I observed the efforts of the District Attorneys, the Clerk of Courts and the Judges as a Defense Attorney, but also as a former Prosecutor, I know exactly what the District Attorneys are doing and why they are needed some consideration.

First, EVERY case on the calender that day MUST go through the District Attorney. Even if it is a simple continuance or guilty plea, the District Attorney must at least be made aware of what is attempting to be done with that case and either agree to it or put it up in front of the Judge for a ruling. So, when those 80-90 (or many times much, much more) names are read of at the beginning of court during Calender Call, remember that each one of those the District Attorney will have to deal with that day. And before you start complaining about how the State should provide more District Attorneys to move court along faster, I don't know that anyone would agree more then the District Attorneys themselves. Sadly, due to budget constraints and the public's opposition to Tax increases, these are how the court will have to be operated.

Second, though it may appear that the District Attorney isn't doing anything, the reality they are doing A LOT. If they aren't talking to Defendant's who are representing themselves, they are negotiating with the many Criminal Defense Attorneys there, or processing paperwork for the Judge and/or Clerk of Court. Even if the District Attorney is just sitting there looking at his/her computer, chances are they are looking at a Defendant's record to make a decision on how to handle the case.

If you ever look at the demeanor of the Defense Attorneys who are present in court, you'll notice they are not frustrated or mad at how long it's taking for their case to be handled. These attorneys, who do this for a living, know what is going on and try to be as helpful to the D.A. as possible.

So, next time you are in court, try and think about what the court personnel are attempting to do and be as patient as you can be.

North Carolina Limited Driving Privilege| Out-of-State DWI Conviction

Recently, I was hired to assist a client who had received a DWI charge (well, technically, it wasn't called a DWI, but it was a similar charge) in another State. So, this client, who learned I was a Raleigh DWI Lawyer and a Durham DWI Lawyer through a mutual contact, reached out to me. This client completed the court ordered classes, paid his fines and court costs, and refrained from driving during the 6-month period in which he was ordered not to drive due to his conviction in the other State. Now, 8 months after the date of his conviction in this other State, he received a letter from the North Carolina DMV indicating his driving privileges here in this state were being suspended for ONE YEAR! Now, had he been convicted under North Carolina DWI Sentencing Structure statute (N.C.G.S. 20-179) he would have faced a one year suspension, however he wasn't convicted in NC. He was convicted under the statute of another state and paid his debt to that society for having driven intoxicated in their state.

Now, North Carolina decided to add to his burden by suspending his driving privilege here in North Carolina just for having been convicted of a charge similar to NC's DWI law in an entirely different jurisdiction. Alright, well, then, we need to get him a Limited Driving Privilege so that he can get back on the road as soon as possible; easier said then done. Though most Limited Driving Privileges in North Carolina are straight forward, one for an out-of-state DWI conviction is a monster all it's own. For starters, the fee is $250, instead of the usual $100 for other L.D.P.'s. Second, this has to be done through the civil division of the court (as oppose to the criminal side) since this isn't a court-ordered suspension, but rather a DMV-ordered. There are a couple more documents that must be filled out and the privilege must be approved by the Chief District Court just as oppose to any District Court Judge who would normally approve a Limited Driving Privilege.

However, what I found most telling about this little oddity was the lack of information available on it. I spent most of a day chasing around all the required documents, approvals and signatures in order to obtain this order. At every turn, no one seemed to have an understanding on how these are done. When speaking with other local attorneys, they (like myself) seemed confident that it was just like any other L.D.P. (some speaking with an absolute certainty). When discussing with the D.A. on what I was doing, as well as a Judge, both indicated there was no special requirements for what I was attempting. Additionally, when talking with the Clerks Office, the always helpful staff were at a loss on how this was done. It wasn't until I was directed to the Civil Division that I finally was told what all was needed.

Fortunately, I already had the necessary paperwork aside from the Petition and Civil Filing Form. So, aside from having to wait on the approval of the Chief District Court Judge and the added cost I had not anticipated, I was able to procure the Privilege for my client.

So, this blog post is to serve as a warning to other North Carolina DWI Attorneys attempting this great feat. Best of luck to you!

Why I Love Being a Criminal Defense Attorney

I have a confession to make, I enjoy the practice of Criminal Defense. As a Raleigh Criminal Lawyer and Durham Criminal Lawyer in North Carolina, I represent those charged with a crime, whether it's North Carolina Traffic Cases, North Carolina DWI Defense, North Carolina Misdemeanor cases or North Carolina Felony cases. As per the explanation I have heard from many people, I defend the 'scum of the earth.' Since deciding this was my area of practice as an attorney, I have heard from friends, family and even total strangers that my chosen profession is 'wrong,' 'despicable,' I've even been told what I do is "what's wrong with America." I try to have a legitimate discussion with these individuals to explain my decision to practice criminal defense. Sometimes, these discussion go well, other times they do not. In either case, publishing an article which conveys the rational of this Criminal Defense Attorney might provide some insight to those who otherwise do not understand, and certainly do not approve of, defending the accused.

I have known that I wanted to be a Criminal Defense Attorney ever since I took criminal law and evidence in law school. However, I didn't know why this profession was so important until I studied Constitutional Law. It is the Constitution which provides every one of us the freedoms which we enjoy today. Most people take these freedoms for granted, mainly due to the fact that they are not faced with a situation where these rights would protect them. Nevertheless, these rights remain available should they be needed. Examples of these rights include the Fifth Amendment right against self-incrimination and due process, the Fourth Amendment right against unreasonable searches and seizures and the Sixth Amendment right to counsel.

These Constitutional Rights were designed, and are upheld, in an attempt to ensure that innocent people are not convicted as a result of forced confessions, lack of legal representation or lack of due process. And though our system is imperfect, in that innocent people are still convicted, these Constitutional Rights are the best balance of providing protections to those accused while at the same time not overly limiting the Government's attempt to identify, arrest and ultimately prosecute those who are criminally responsible.

The beauty of these rights and how they are applied today is that not only are they the result of the brilliant minds of our forefathers who draft the Constitution, but they are applied as a result of centuries of caselaw precedent. What this means is, since their inception these rights have been argued in countless trials where a ruling was made as to exactly how they should be applied given certain facts. These rulings have been evaluated by higher appellate courts, including the Supreme Court of the United States. That means that an unimaginable number of legal scholars, from Defense Attorneys and government Prosecutors to Judges throughout the court system have come together to make a determination in exactly how they should be applied. And though occasionally precedents are overturned when given new facts, that should only provide greater comfort in knowing that, though not common, they can be overturned if circumstances have been changed since the precedent was set. As an example, think of how the internet has changed countless laws with regards to copyright, defamation, libel, Fifth Amendment, harassment, etc.

I mention these rights as they are what a Defense Attorney is truly defending. In my numerous discussions with those that have a problem with Criminal Defense, the other party normally falls into one of two categories: 1. they feel too many rights are given in our system and Criminal Defendants should have less protection or 2. they feel the rights are adequate and should be upheld, unless the Criminal Defendant is 'obviously guilty.'

As for the first category, these people normally hold this perception because they believe they would never face criminal prosecution and therefore the limitation of these rights would never apply to them. However, too many times innocent people are suspected of crimes and without these rights in place, they could face prosecution and ultimately conviction without these safeguards in place. A simple matter of 'wrong place, wrong time' can result in an innocent person being accused of crime. And as careful and lawful as one can attempt to live their life, there is ALWAYS the chance of a mistake identification or chance encounter which can turn a person's life upside down. As example, would you really feel comfortable if an Officer had the right to stop you on the highway solely because you look suspicious, search your car because he/she feels like it, and arrest you without first having established Probable Cause?

As for the second category, this idea of different standards for different people is a narrow, and more importantly incorrect view. These Constitutional Rights work only if EVERYONE is afforded the same protection. These rights are given to us by the Judicial Branch and limit the function of the Executive and Legislative Branches of our government in their handling of Americans. If the Government could all-of-a-sudden make their own determination of what rights are given to what Defendants, than the power of determining what limitations could potentially prohibit the prosecution of the Defendant is given to the same government entity who's job it is to prosecute the Defendant. In other words, the Prosecutors would be permitted to determine what Rights, and more specifically what potential problems with their case there are and whether they would permit the Defendant to utilize them. Though most people cannot imagine themselves in a place where they could potentially face criminal prosecution, in the oft chance that you are, would you really like that kind of power to be held by those entrusted with your prosecution?

As mentioned before, everyone sharing the exact same rights as everyone else is the only truly fair way to ensure our system is operating as effectively as possible. Do guilty Criminal Defendants get off as a result of these Constitutional Rights? Absolutely. But the second that our system overlooks a misstep by the Government (whether in the Police's attempt to gather evidence or with the Prosecutor's handling of the case) in order to convict an 'obvious' guilty Defendant, than forever will the same opportunity to 'overlook' these mistakes be available to those who are not so obviously guilty.

Though this discussion has many more facets and areas which can be debated, this was simply a taste of what justification I have, to do what I do with my head held high.