When the topic of DWI's comes up in any social setting, a typical opinion I hear is that these individuals need to be punished severely because they risk everyone's lives. While this statement is not wholeheartly incorrect, I believe the convictions need to be tempered.
You see, first and foremost, it is extremely unpopular to be 'pro-DWI' and certainly that is not the position I am taking. DWI's are serious and in some cases very dangerous matters. So people (and unfortunately Legislators) are very reluctant to take a reasonable approach to the discussion of DWI penalties for fear as being seen as 'soft on crime.'
On our website, you can find a run down of North Carolina DWI Sentencing, considered by many one of the most serious in America. The penalties for even First Time Offenders and/or low Blood/Alcohol Concentrations are serious at the minimum and borderline ridiculous at the maximum. Aside from a loss of your license for a year, court costs, fines, and some type of probationary sentence, you run the risk of a potential active sentence (i.e. jail time) all this along with a 400% increase to your insurance and the stigma that comes with a DWI conviction. Add to this the fact that there are NO first-time offender options or programs where someone with a benign set of facts, having never been in trouble before may be able to earn the right to avoid a DWI conviction like many other States have.
Most people believe these type of penalties are necessary to deal with what could have happened on that fateful day. The reality is, in North Carolina, we already have laws to handle those cases where people's fears are actually warranted. North Carolina has Felony laws that pertain to accidents involving Driving While Impaired where someone else was injured or killed: Felony Serious Injury by Vehicle (Class F Felony), Felony Aggravated Serious Injury by Vehicle (Class E Felony), and Felony Death by Motor Vehicle (Class D Felony). These laws have the potential of sentencing someone to a few months in jail up to 105 months in prison.
My point is, we are punishing people for the crime that could have happened and not what actually happened. Most DWI cases involve no accident, no injury, just a driver stopped for some reason that is found to be above the legal limit. I am fully aware that these laws are written under the premise that they are to serve as a deterrent to those who may consider driving drunk, but I find that argument not fully persuasive. True, criminal laws are part deterrent, part punishment, the deterrent part does NO good if no one is aware of them. I can honestly say that well over 90% of my clients had no idea the severity of their actions and had they, they would not have chosen to drive home that night. Perhaps more effort could be put into educating the public and less on punishing the unknowing public for actions that, while have the RISK of injuries to others, in most cases do no harm to anyone.
Again, I am no advocating against DWI Laws, I am simply requesting that common sense be applied to the laws. How many of the Thousand upon Thousands of people charged with DWI's in North Carolina would jump at the opportunity to avoid a DWI Conviction upon completion of Substance Abuse Treatment, Community Service and Outreach programs? Stand on a corner with a sign warning of the dangers, hand out pamphlets at local bars, pay a large fine that goes exclusively to a State Sponsored Designated Driver/Taxi Service? If we truly want to reduce drunk drivers on the road, over-punishing those who commit the crime is less effective in my humble opinion then additional community out reach and education.
Monday, December 15, 2014
Wednesday, August 14, 2013
North Carolina DWI Law | Bumcombe County DWI Repeat Offender
So recently, I read an article about a driver in Buncombe County who was recently convicted of his 17th DWI and was sentenced to 7 years in prison. Now, while many of you may expect it, this Raleigh DWI Attorney is not coming to the defense of the repeat offender and the harsh sentence he has received. Given the number of times he has been convicted, I honestly don't believe 7 years is necessarily inappropriate.
What bothered me more about this article was the quote from the District Attorney for that county, Ron Moore. He stated "In North Carolina for a first offense you don't serve a minute in jail. You generally get a 60-day suspended sentence. You can get a limited driving privilege, and you have to do 24 hours of community service. There is not a lot of deterrent value. If you had to spend a week in jail, then maybe it would deter you from that behavior."
This idea that North Carolina is somehow 'light' on DWI charges is ridiculous. North Carolina has very serious sentences for DWI convictions, including first offenders. Where before in North Carolina, as well as presently in other states, certain first offenders may be eligible for a reduction to a 'Careless and Reckless' charge, or to participate in some type of 'First-Offenders DWI' Program where the charges would be reduced upon successful completion. But not in present day North Carolina. No, if you are charged with a DWI, it has been the experience of this Wake County DUI Attorney that there are no opportunities for a reduction of the charge. In fact, your only chance of avoiding a DWI conviction is by winning at trial.
Also, the statements by District Attorney Moore over simplifies the reality of a DWI conviction. First, he is describing a Level 5 Sentence, which is the lowest possible sentence a Driver can receive for a DWI conviction in North Carolina. Depending on Aggravating and Grossly Aggravating Factors, a Driver can face a much more serious sentence then just 24 hours of community service. Even at a Level 5, a Defendant can expect to pay between $500-$700 in court costs and fines at the time of conviction, which does not include the 400% increase to the insurance premium for the next three years and any costs you incurred immediately after the arrest, including the cost of hiring an attorney. Additionally, all DWI convictions in North Carolina carry with it mandatory Substance Abuse Assessment and follow up treatment so Driver's are learning the risks of substance abuse.
In addition, a Limited Driving Privilege is no small slap on the wrist. The driver is limited to driving Monday - Friday from 6:00 am to 8:00 PM for 'work, school or household needs.' Now, there is some debate about what constitutes 'household needs' but some Police Officers may feel that a Driver out during those times, who isn't specifically driving for the benefit of his or her household is in violation of the privilege, which could lead to a revocation. Additionally, should a driver have a blood/alcohol concentration of .15 or above in North Carolina, they will not be eligible for a Limited Driving Privilege for the first 45 days after being convicted and are required to have an Interlock Device installed on the vehicle for one year, all at the cost to the Defendant. Imagine your life if you were not able to drive for a week, let alone a month and a half?!
Now, I'm sure some people think that I am minimizing the risks of Driving While Impaired, I can assure you I am not. Driving drunk is risky and endangers the lives of the Driver, their passengers, as well as the public in general. However, DWI's have gotten so built up that we are sentencing people for the damage they could have done, not what they actually did!
Rest assured, if a Drunk Driver causes a wreck, it will be factored into their sentencing so they can receive a harsher sentence then if they hadn't gotten in a wreck. Caused serious bodily injury? That's a Grossly Aggravating Factor and would be a minimum, mandatory 7 days in jail. Prior DWI in the last 7 years? Same thing. Passenger in the vehicle under the age of 18? Level 1, minimum, mandatory 30 days in jail! That means if you are a first time offender, with a BAC of .08 and a 17 year old in the car (think about high schoolers coming home from a party or prom) and they are convicted, 30 days in jail.
It's craziness to me that DWI's are treated this way. The fact that the Defendant is participating in a risky activity results in a sentence that would appear to address the potential harm, instead of the actual harm caused. Let's think of this in another way. North Carolina has passed laws against texting while driving. Some cities have even passed laws against using phones all together. There are those who believe that the use of a cell phone while driving is as dangerous as driving while impaired. Certainly there are plenty of stories out there about people who have been injured or killed because of someone texting or driving. Should we treat those who were caught texting and driving as harshly as those who have killed while texting and driving? Of course not, the punishment wouldn't fit the crime.
Here's another way to think of this. I have a client who was associated with a fight in school. One of the young boys broke the eye socket of another boy during the fight. That young boy was charged with Assault and Battery. Having never been in trouble before, will have his case dismissed after he participated in a First Offender's program, which includes community service and classes. There will be no monetary costs that he will incur from the criminal charge. However, most of my clients are first offenders, and many of those are low BAC DWI's who did not injure anyone at all and will have their life seriously disrupted, incur thousands of dollars in costs (once you add up court costs, legal fees, and insurance costs) and have their ability to drive restricted for the next year. How is this fair? If we take the DWI sentencing logic and apply it the fight, the boy should face a sentence that reflects the injury he could have cause as a result of the fight. The boy could have suffered brain injury or even death, so let's treat this case the same as if it did occur?
Okay, I think I have been up on my Soapbox long enough. Let me say again, I don't advocate Driving While Impaired or even think that people shouldn't face some of the consequences, but for a District Attorney to suggest that every single first-time offender of a Class 1 Misdemeanor should face a mandatory 7 day jail sentence is ludicrous. I think common sense needs to prevail and be applied to these cases. As it were, due to special interest groups (M.A.D.D. I'm looking at you), there is little chance that will ever happen.
What bothered me more about this article was the quote from the District Attorney for that county, Ron Moore. He stated "In North Carolina for a first offense you don't serve a minute in jail. You generally get a 60-day suspended sentence. You can get a limited driving privilege, and you have to do 24 hours of community service. There is not a lot of deterrent value. If you had to spend a week in jail, then maybe it would deter you from that behavior."
This idea that North Carolina is somehow 'light' on DWI charges is ridiculous. North Carolina has very serious sentences for DWI convictions, including first offenders. Where before in North Carolina, as well as presently in other states, certain first offenders may be eligible for a reduction to a 'Careless and Reckless' charge, or to participate in some type of 'First-Offenders DWI' Program where the charges would be reduced upon successful completion. But not in present day North Carolina. No, if you are charged with a DWI, it has been the experience of this Wake County DUI Attorney that there are no opportunities for a reduction of the charge. In fact, your only chance of avoiding a DWI conviction is by winning at trial.
Also, the statements by District Attorney Moore over simplifies the reality of a DWI conviction. First, he is describing a Level 5 Sentence, which is the lowest possible sentence a Driver can receive for a DWI conviction in North Carolina. Depending on Aggravating and Grossly Aggravating Factors, a Driver can face a much more serious sentence then just 24 hours of community service. Even at a Level 5, a Defendant can expect to pay between $500-$700 in court costs and fines at the time of conviction, which does not include the 400% increase to the insurance premium for the next three years and any costs you incurred immediately after the arrest, including the cost of hiring an attorney. Additionally, all DWI convictions in North Carolina carry with it mandatory Substance Abuse Assessment and follow up treatment so Driver's are learning the risks of substance abuse.
In addition, a Limited Driving Privilege is no small slap on the wrist. The driver is limited to driving Monday - Friday from 6:00 am to 8:00 PM for 'work, school or household needs.' Now, there is some debate about what constitutes 'household needs' but some Police Officers may feel that a Driver out during those times, who isn't specifically driving for the benefit of his or her household is in violation of the privilege, which could lead to a revocation. Additionally, should a driver have a blood/alcohol concentration of .15 or above in North Carolina, they will not be eligible for a Limited Driving Privilege for the first 45 days after being convicted and are required to have an Interlock Device installed on the vehicle for one year, all at the cost to the Defendant. Imagine your life if you were not able to drive for a week, let alone a month and a half?!
Now, I'm sure some people think that I am minimizing the risks of Driving While Impaired, I can assure you I am not. Driving drunk is risky and endangers the lives of the Driver, their passengers, as well as the public in general. However, DWI's have gotten so built up that we are sentencing people for the damage they could have done, not what they actually did!
Rest assured, if a Drunk Driver causes a wreck, it will be factored into their sentencing so they can receive a harsher sentence then if they hadn't gotten in a wreck. Caused serious bodily injury? That's a Grossly Aggravating Factor and would be a minimum, mandatory 7 days in jail. Prior DWI in the last 7 years? Same thing. Passenger in the vehicle under the age of 18? Level 1, minimum, mandatory 30 days in jail! That means if you are a first time offender, with a BAC of .08 and a 17 year old in the car (think about high schoolers coming home from a party or prom) and they are convicted, 30 days in jail.
It's craziness to me that DWI's are treated this way. The fact that the Defendant is participating in a risky activity results in a sentence that would appear to address the potential harm, instead of the actual harm caused. Let's think of this in another way. North Carolina has passed laws against texting while driving. Some cities have even passed laws against using phones all together. There are those who believe that the use of a cell phone while driving is as dangerous as driving while impaired. Certainly there are plenty of stories out there about people who have been injured or killed because of someone texting or driving. Should we treat those who were caught texting and driving as harshly as those who have killed while texting and driving? Of course not, the punishment wouldn't fit the crime.
Here's another way to think of this. I have a client who was associated with a fight in school. One of the young boys broke the eye socket of another boy during the fight. That young boy was charged with Assault and Battery. Having never been in trouble before, will have his case dismissed after he participated in a First Offender's program, which includes community service and classes. There will be no monetary costs that he will incur from the criminal charge. However, most of my clients are first offenders, and many of those are low BAC DWI's who did not injure anyone at all and will have their life seriously disrupted, incur thousands of dollars in costs (once you add up court costs, legal fees, and insurance costs) and have their ability to drive restricted for the next year. How is this fair? If we take the DWI sentencing logic and apply it the fight, the boy should face a sentence that reflects the injury he could have cause as a result of the fight. The boy could have suffered brain injury or even death, so let's treat this case the same as if it did occur?
Okay, I think I have been up on my Soapbox long enough. Let me say again, I don't advocate Driving While Impaired or even think that people shouldn't face some of the consequences, but for a District Attorney to suggest that every single first-time offender of a Class 1 Misdemeanor should face a mandatory 7 day jail sentence is ludicrous. I think common sense needs to prevail and be applied to these cases. As it were, due to special interest groups (M.A.D.D. I'm looking at you), there is little chance that will ever happen.
Tuesday, July 23, 2013
Raleigh Traffic Law | The 'Flashing Light' warning
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.
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.
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.
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