So, for anyone who's ever been through a DWI charge in Wake County, they may have heard a reference to a courtroom '5C.' As a Raleigh DWI Defense Attorney, I have resolved many cases in courtroom 5C and though it has gone through several revisions recently, it has come to be a tried and true way to try and resolve Wake County DWI trials in an efficient method.
First, for clarification, courtroom 5C is a courtroom set aside just for DWI trials. Now, in many cases DWI cases are plead in 5C for one reason or another, but for the most part, it's there for DWI trials. The purpose of courtroom 5C was to allow the State to organize their case so that on the date of trial, they had all necessary witnesses and the case would not be unnecessarily continued taking up the court and the Defendant's time. This differs from regular district court in that in regular court, the Defendant and/or Defense counsel come to court and if the State is not prepared to proceed to trial that day, the case will be continued. This option of a continuance goes both ways as the Defendant and/or their defense attorney can continue a case if they are not ready to proceed on the court date. Obviously, this cannot go on forever, so both sides can eventually run out of continuances and will be forced to proceed with their case at that time.
However, with courtroom 5C, was used to transpire was the State would motion to continue to place the case in 5C, where no date certain would be provided. Then, at a later point, once the State is certain they can proceed with the case, they set the court date and notify the Defendant. Well, this Wake County Defense Attorney, along with many others, took exception to this design as the State was being given an unfair advantage in setting the trial date at their leisure. As a result of the Defense Bar's complaints, Wake County Courthouse changed local rules so that once a matter was set to 5C, and administrative date was set, and on that date, the trial date would be set. This seemed to be a fair compromise as both the State and the Defendant were provided a date certain for their trial and could plan accordingly. Unfortunately, this has NOT been how this court has been handled recently.
Five times this year alone, and four in the last month, I have had DWI trials set in 5C. On those dates, myself, my clients and sometimes my clients family would show up to court on their date ready to argue our case. On these particular dates, the State was NOT ready proceed with their case and a District Court Judge granted the State's motion to continue to another date for trial. Now, you may be saying to yourself that certainly the State must have a good reason to continue the case from it's original trial date, which has been in place for months. Certainly there's some medical emergency or unforeseen circumstances in which the State could not have anticipated and therefore should be given another opportunity to try the case; NOPE! In each of these cases, the State had to try and continue the case because they failed to subpoena their witnesses; in other words, they weren't prepared for trial. And in each of these cases, the sitting Wake County District Court Judge granted State's motion to continue. Could you image if I, as a Raleigh DWI Attorney, stood up for that same Judge, in a courtroom with the State and State's witnesses ready to proceed, and asked to continue a case set for trial for the sole reason that, though I was aware of the trial date for months, I simply was not prepared to try the case because I didn't do my job?
What's worse, if the Judge had denied the State's motion, the State would have been forced to dismiss the case, but they would NOT be without recourse. The State enjoys the privilege, not only have being able to set the dates for trials, but also to refile charges against Defendants that have been dismissed without prejudice. So, the State, if they so chose, could have refiled the charges if they felt strongly enough about prosecuting my clients.
But alas, this is what has happened. My clients day in court was pushed off for lack of due diligence on the part of the State and the Judges rewarded this lack of preparedness by permitting the case to be continued. What is especially frustrating about this process is the fact that this is contrary to local rules. Certainly, Judge's enjoy the discretion in granting these motions, and under unforseen circumstances I would have no complaint. But the whole purpose of courtroom 5C was to allow the Defendant and the State to be given a date certain for trial in order to prepare accordingly and not waste precious judicial resources by needlessly continue cases over and over as both sides prepare.
So, from here forward, when my clients hire me as their Raleigh DWI Lawyer, I will fight vigorously in opposing in State's motions to move a case to 5C as the State enjoys the benefit of multiple bites at the apple to prepare for trial while the Defendant is left wondering why their case is not being heard when it is suppose to.
Monday, June 10, 2013
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.
Friday, May 31, 2013
Raleigh Traffic Law | Recent Checkpoint Activities
Well, it's been a while since I posted, but thought it was necessary to get back on here and add some new insight to the world of serving as a Raleigh DWI Attorney. Recently, there's been an increase in police activities on the roads of Wake County. Mainly, I have seen more and more Wake County DWI checkpoints and license checkpoints in place. These checkpoints are an easy way for the State to try and catch those who could be violating the laws of North Carolina. What many driver's do not realize is what rights they have with regards to these checkpoints or any other traffic stop.
First, the general public needs to understand that your participation with MOST of these stops is voluntary, and your compliance could hamper your Apex DWI Attorneys efforts to avoid a conviction. Under our laws, you are required to stop, produce your license and registration and that is it. If the Police Office asks you to exit the vehicle, you do have to comply as it could be for safety reasons. Beyond those few things, you are not required to answer questions, consent to a search, attempt standardized field sobriety tests or submit to a preliminary breath test. Now, it's important to note at this point that the breath test performed AFTER a driver has been arrested, the one performed on an Intoxilzyer, is voluntary, but does come with consequences should you refuse, so decide carefully whether you want to refuse. However, beyond that, the walk and turn test, one legged stand test, the finger dexterity test, eye test, counting, alphabet, etc. are all voluntary. And the fact that this is voluntary is true whether it's a regular traffic stop or a check point. As a Raleigh DWI Lawyer, I always find it interesting to learn what the Police Officer's stated to my client to convince them to perform the tests. In most cases, the verbiage they use 'implies' that it's required and not voluntary. Statements like "I'm going to have you perform some tests" or "I need you to blow into this device." My favorite was a client who was told by an officer that he was probably going to let him go, but he needed my client to perform some tests just to be sure. Understand that Police Officers are not required to be honest with you. There is no law on the books that says police must always tell the truth to a Defendant they are investigating. The biggest mistake that the general public make when dealing with the police is thinking that you are smarter then the police and that you will not be outwitted by them. The reality is, this is their profession, they know all the best moves to try and get the evidence they need in order to arrest and ultimately convict you.
Another thing that has popped up across the Wake County area is more attempts to catch drivers speeding, texting, driving without a seatbelt, etc. Again, I was amazed at some of the creativity I have seen. Recently, on Highway 55 in Holly Springs, I have seen Police Officers set up on the overpass of 540 where they were using a radar to track the speed of the Defendant and radioing to other Police ahead on 55 to report who needs to be pulled over. Additionally, I saw Police set up around construction on 55 where traffic was narrowed from 4 lanes down to 2. This caused driver's to slow down, providing police enough opportunity to look into cars and see if the Driver had their seat belt on, or if they were texting. Certainly these type of tactics lead to many Driver's having to seek out a Wake County Traffic Attorney. All of this activity has resulted in an influx of Wake County residents contacting local attorneys looking for legal assistance. It's important to remember while out on the road, that the Police are always out there looking to catch driver's violating the law, so be careful.
If you do end up receiving a ticket or are arrested for a dwi, contact the Matheson Law Office. We have proudly served as the Raleigh DWI Lawyer for and traffic lawyer for hundreds of clients. We provide a free consultation when you call where you will speak directly with an attorney. Call us at 919-335-5291.
First, the general public needs to understand that your participation with MOST of these stops is voluntary, and your compliance could hamper your Apex DWI Attorneys efforts to avoid a conviction. Under our laws, you are required to stop, produce your license and registration and that is it. If the Police Office asks you to exit the vehicle, you do have to comply as it could be for safety reasons. Beyond those few things, you are not required to answer questions, consent to a search, attempt standardized field sobriety tests or submit to a preliminary breath test. Now, it's important to note at this point that the breath test performed AFTER a driver has been arrested, the one performed on an Intoxilzyer, is voluntary, but does come with consequences should you refuse, so decide carefully whether you want to refuse. However, beyond that, the walk and turn test, one legged stand test, the finger dexterity test, eye test, counting, alphabet, etc. are all voluntary. And the fact that this is voluntary is true whether it's a regular traffic stop or a check point. As a Raleigh DWI Lawyer, I always find it interesting to learn what the Police Officer's stated to my client to convince them to perform the tests. In most cases, the verbiage they use 'implies' that it's required and not voluntary. Statements like "I'm going to have you perform some tests" or "I need you to blow into this device." My favorite was a client who was told by an officer that he was probably going to let him go, but he needed my client to perform some tests just to be sure. Understand that Police Officers are not required to be honest with you. There is no law on the books that says police must always tell the truth to a Defendant they are investigating. The biggest mistake that the general public make when dealing with the police is thinking that you are smarter then the police and that you will not be outwitted by them. The reality is, this is their profession, they know all the best moves to try and get the evidence they need in order to arrest and ultimately convict you.
Another thing that has popped up across the Wake County area is more attempts to catch drivers speeding, texting, driving without a seatbelt, etc. Again, I was amazed at some of the creativity I have seen. Recently, on Highway 55 in Holly Springs, I have seen Police Officers set up on the overpass of 540 where they were using a radar to track the speed of the Defendant and radioing to other Police ahead on 55 to report who needs to be pulled over. Additionally, I saw Police set up around construction on 55 where traffic was narrowed from 4 lanes down to 2. This caused driver's to slow down, providing police enough opportunity to look into cars and see if the Driver had their seat belt on, or if they were texting. Certainly these type of tactics lead to many Driver's having to seek out a Wake County Traffic Attorney. All of this activity has resulted in an influx of Wake County residents contacting local attorneys looking for legal assistance. It's important to remember while out on the road, that the Police are always out there looking to catch driver's violating the law, so be careful.
If you do end up receiving a ticket or are arrested for a dwi, contact the Matheson Law Office. We have proudly served as the Raleigh DWI Lawyer for and traffic lawyer for hundreds of clients. We provide a free consultation when you call where you will speak directly with an attorney. Call us at 919-335-5291.
Friday, October 26, 2012
Raleigh Traffic Law | Recent Changes to the 'Move Over' Requirement
So, to little fan fare and publicity, the North Carolina Traffic Law regarding the requirement to move over for emergency vehicles has recently changed. What requirements drivers face when approaching 'emergency vehicles' has changed to include new 'emergency personnel' that most people may not think to give consideration to. As a Raleigh Traffic Lawyer and Raleigh DWI Lawyer, I stay up-to-date on recent changes to the North Carolina Criminal codes so that I can better advise my clients. This change can have a lasting impact on those who are unaware of these new requirements.
As most North Carolina drivers realize, when a Police Officer has someone pulled over on the side of the road, or there is an ambulance or fire truck on the side of the road, the driver is required to move over a lane and/or slow down and be prepared to stop until they have passed the police officer. However, the recent changes to the North Carolina Traffic Law N.C.G.S. 20-157 includes those same requirements for roadside assistance vehicles and emergency vehicles which have flashing yellow lights. The language of the statute does not specify a definition of 'emergency personnel' or which vehicles constitutes a 'safety vehicle.' However, given the law does specify the flashing yellow lights, it would seem to include government roadside assistant vehicles for those stranded on North Carolina roads, as well as possibly tow trucks assisting those same drivers.
The changes to this law include spelling out what consequences a driver could face should they violate this law. Should the driver fail to move over and/or slow down, they would face an infraction with a two hundred and fifty dollar fine. If property damage to the emergency vehicle in excess of five hundred dollars or personal injury to the emergency personnel occur as a result of negligence of the driver, the the Driver will face a Class 1 Misdemeanor. Should serious bodily injury or death result, the driver would face a Class I Felony.
These consequences can be serious for the Defendant and should not be taken lightly. If you are facing these charges, or any other traffic ticket in Wake County or other criminal charges, contact the Matheson Law Office for your free consultation.
Wednesday, October 3, 2012
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.
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