Call (888) 543-2427
www.ibsenlaw.comFrequently Asked QuestionsContact Carilyn IbsenSitemap
Law Office of
Carilyn Ibsen PLLC
Defending Clients in North Carolina and South Carolina

Attorney Carilyn Ibsen's Blog

about Criminal Defense in North Carolina and South Carolina

 

Friday, April 24, 2015

Traffic Tickets and Fishing Expeditions


fishing expedition
noun, Informal.
1.  legal proceeding mainly for the purpose of interrogating an adversary, or of examining his or her property and documents, in order to gain useful information.
2.any inquiry carried on without any clearly defined plan or purpose in the hope of discovering useful information.

Nearly everyone has received a traffic ticket. Almost everyone has gone fishing. Are the two mutually exclusive? Not in criminal law.

Police officers give hundreds of traffic tickets. In North Carolina, State Troopers give thousands. What police agencies cannot do during a traffic stop is go on a "fishing expedition." An officer can issue a traffic ticket. However, once that ticket is issued, an officer may not continue the contact with the driver or passenger to investigate issues that were unrelated to the initial reason for the stop.

The US Supreme Court issued a substantial ruling this week in Rodriguez v. United States.

In Rodriguez, the defendant was initially stopped by a police officer for veering onto the shoulder of a state highway in Nebraska. After the officer did a license and warrant check on both the driver and the passenger came back clean, the officer issued a warning ticket to the driver. The officer then asked the driver for permission to allow his "drug dog" sniff around the vehicle. The driver did not consent to this search by the dog. Seven or eight minutes later a second officer arrived, dog sniff search was conducted and methamphetamine was discovered. UNC School of government wrote an excellent summary of the case here.

The Court ultimately held that an officer cannot extend a traffic stop beyond the time necessary to complete the "mission" of the stop; specifically, the time to "address the traffic violation that warranted the stop.. and attend to related safety concerns." A police officer's authority to detain a driver and his vehicle ends when the issues tied to the traffic infraction are completed or reasonably should have been completed. An officer cannot, as dictionary.com correctly defines, carry on a "fishing expedition" in the hope of discovering information.

Police officers will continue to use traffic stops as gateways to conduct full investigations.  However,  this important Supreme Court ruling will require police officers to justify their continued contact. True transparency will take place when all officers are equipped with cameras/voice recorders. Only then will we know the true extent of the expedition.

Criminal Law Updates provided by The Law Office of Carilyn Ibsen PLLC (888)543-2427








Labels: ,

posted by Carilyn Ibsen at 0 Comments Links to this post

Monday, April 20, 2015

Expert Testimony- An Alarming New Report Showing How Flawed It Really Is

The North Carolina Crime Lab is not the only agency that failed. In a newly released report , the Justice Department and the FBI acknowledged that examiners in an elite FBI forensic unit gave flawed testimony in almost all trials they testified for the prosecution over a twenty year period. Specifically, 26 of 28 employees overstated hair comparison results that favored prosecutors in more than 95 percent of trials. These cases included 32 defendants that were sentenced to death. 14 of the 32 have already been executed or have died in prison. As a result, the Justice Department and the FBI are now conducting one of the largest post conviction reviews of cases that fall within this period. You can read the article here.

When I was a prosecutor, calling my criminalist as my expert witness in a trial was one of the one less demanding tasks. For me, before commencing testimony of a criminologist was like pressing play on a DVD player. After the criminologist entered the courtroom carrying their briefcase, sat down at the witness stand and started organizing their paperwork, I "pressed play" beginning my robot request of their background, to provide background information to the jury, their education, their degrees, certifications and all the training they received from the day they started their career. Then we would explore the testing they conducted. At the end, I would ask for a conclusion.

At this point, jurors just wanted to hear the result after listening mind numbing data, sometimes for hours. They may not understand the science, flawed as it can be and which has become more confusing as technology advances, and if they don't, they cannot relate to the conclusion.

To convey that they do understand, jurors believe criminalist testimony. While they don't understand it, having listened to all of the 'experts' education and experience, they generally conclude "this person clearly knows what he/she is doing." They also believe the sworn expert is honest and not motivated to manage results. Jurors typically have not had bad "life experiences" with expert witnesses in a courtroom, unlike many which have had such bad experiences, outside the courtroom, with law enforcement where they are aware of victims of unfavorable treatment, witnesses to unfavorable treatment or heard stories on the news. Jurors see the criminologist as an impartial authority at work in "a laboratory", going to work each day to do their job.

The problem is they do make errors. They do make mistakes. Thus, reviews like this are absolutely necessary. However, they can't provide relief to the fourteen who were convicted and subsequently executed or died in prison.


Mecklenburg County Criminal Law Updates Provided by The Law Office of Carilyn Ibsen PLLC (888)543-2427



Labels:

posted by Carilyn Ibsen at 0 Comments Links to this post

Thursday, October 23, 2014

Should I Take Traffic School Before My Court Date?

Traffic school can be both a good and unnecessary option when you have received a speeding or other traffic violation. Confusion over this choice seems worth clarifying, since my office frequently receives calls regarding this subject.

The question begins when drivers in Mecklenburg County, or within the Charlotte area, receive a speeding ticket. During the traffic stop, the citing police officer suggests attending traffic school prior to the court date.

Traffic school can be required in some situations but not in the majority of traffic violations. For example, sometimes the District Attorney will require traffic school for a speed reduction. Other judges may require traffic school before a Prayer for Judgment (PJC) is granted.

Additionally, there are several different types of traffic school:
  • 4 hour (green school)
  • 8 hour (red school)
  • Alive at 25 for younger drivers, and recently added
  • "Behind the Wheel" traffic school where drivers complete parts of the class in vehicles. This new course is geared toward younger drivers who are historically higher risk drivers.
However, the majority of drivers who received a traffic ticket will not need to take traffic school. For example, drivers with good driving records or cited speeds slightly over the speed limit may not have to take traffic school.

A police officer is neither an attorney nor a judge. While perhaps meaning well (knowing full well that you are upset having received the speeding ticket), the officer issuing the ticket should not be giving legal advice during a traffic stop.

An attorney can be helpful in defining how each driver may best respond to the issuance of a traffic ticket.

For more information about traffic school in Mecklenburg, Gaston and Union county, click here.

Charlotte Traffic Updates are Provided By The Law Office of Carilyn Ibsen PLLC (888)543-2427

Labels: ,

posted by Carilyn Ibsen at 0 Comments Links to this post

Thursday, September 25, 2014

Speeding Ticket in Charlotte? Consider Insurance Points.

Callers to my law office after receiving a speeding ticket in Mecklenburg and surrounding counties often ask whether their ticket will affect their driving record.

"What can you do to help me? I don't want any point on my driving record." It is understandable, as all of us wish to maintain good driving records. But drivers need to be aware that points on their driving record are likely to also increase their cost of insurance.

Driver records are maintained by the DMV.  The DMV will assess points on driving records for moving violations. Separately, auto insurers will review DMV records and establish auto insurance rates. Insurance rates can be increased when a person is convicted of a traffic offense, specifically a moving violation.

North Carolina regulates car insurance rates. There is a reward for being a good driver in North Carolina. If a person is convicted of speeding 10 mph or less (not in a school zone) and there is not a moving violation in the past 3 years, no insurance points will be assessed. This is a situation where driving points will be assessed, however no insurance increase will result.

I often encourage people to review the North Carolina Consumer Guide to Automobile Insurance. You can view it here. Page 8 and 9 are most helpful.



Charlotte Traffic Ticket Updates Provided By The Law Office of Carilyn Ibsen PLLC (888)543-2427

Labels:

posted by Carilyn Ibsen at 0 Comments Links to this post

Friday, September 19, 2014

Do I Have To Come To Court For My Traffic Ticket?

Question: Do I need to come to court for my traffic ticket?

Police Officers issue hundreds of tickets daily in Charlotte. If the speed is over 15 mph, the police officer will likely state "Your appearance is mandatory. You can't pay this ticket online."  

However, most traffic tickets can be handled by an attorney without the defendant coming to court. NCGS 7A-148 acknowledges the necessity for courts to operate efficiently. As such, the North Carolina court system has a specific list of traffic tickets that can be resolved by an attorney without the client being present. A simple one page waiver signed by the client is sufficient for the court. 

The Law Office of Carilyn Ibsen is familiar with this process. Clients are very relieved to hear that they will not need to take a day off work or travel from another state to have their ticket resolved. Many times these tickets can be resolved with an outcome that prevents any insurance increase. 

Charlotte Traffic Ticket Updates Provided By The Law Office of Carilyn Ibsen PLLC (888)543-2427


Labels:

posted by Carilyn Ibsen at 0 Comments Links to this post

Charlotte Traffic Ticket- What if the Police Officer doesn't show up?


My law office receives phone calls daily from people who received a speeding ticket in the Charlotte area. The two main questions asked are "What happens if the Officer doesn't show up in Court, Is my case then dismissed?" and "Do I need to come to court on my traffic ticket?".

I'll address the first question today.

Every traffic ticket citation will include a promise to appear in court. If the ticket is in Mecklenburg County, the first court date is in Courtroom 1130. Courtroom 1130 is an administrative courtroom where the defendant or the defendant's attorney negotiates the traffic ticket with the District Attorney. As such, in this courtroom, the police officer is not subpoenaed to come to court.

If the negotiation is not successful, the case is then set for trial which will be held on the fourth floor of the Courthouse. The date will be within six to eight weeks. The police officer is then subpoenaed to come to court on the trial date. For whatever reason, should the police officer not attend on the trial date or the District Attorney cannot call the case for trial due to a heavy docket, the case will likely be continued to a new date.

Gaston County traffic and speeding tickets are handled differently than Mecklenburg. The first appearance for a traffic ticket in Gaston County is in front of a Magistrate. There is no judge or District Attorney present. The case is continued for a trial date approximately six weeks later where the officer is subpoenaed.

People are often surprised to hear this multi-step procedure for traffic tickets in North Carolina. Many recall the old days of traffic court where police officers would line the court hallways with everyone waiting for their case to be called. If the officer wasn't present, the case was dismissed. Due to many factors, including the large number of traffic ticket cases each day, this "one-step" practice is understandably no longer feasible.  For example, Mecklenburg County Courtroom 1130 is an administrative courtroom that can docket up to 1300 cases a day.

Most traffic tickets in Mecklenburg, Gaston and Union County can be negotiated and resolved by an attorney without the person coming to court.  Before making a trip and spending all day waiting in court, call a traffic attorney in the Charlotte area to see if they can be of assistance.

Charlotte Traffic Ticket Updates Provided by The Law Office of Carilyn Ibsen PLLC (888)543-2427


Labels:

posted by Carilyn Ibsen at 0 Comments Links to this post

Thursday, September 18, 2014

DWI Arrest in Charlotte? What is a Portable Breath Test?

SITUATION: 
You have been pulled over by a police officer for DWI. The Officer asks you to exit the vehicle. Suddenly a small device is pulled from the patrol car. Officer asks you to blow in this device. What should you do?

This device is known as a Portable Breath Test- commonly called a PBT. Contrary to what some Police Officers will tell you, this is not the breath device licensed drivers are required to take under North Carolina implied consent laws. Actually, the numerical result of this test is not even admissible in court.

Portable Breath Devices were issued to police officers as a tool to determine whether probable cause exists to arrest a person for DWI. It is just one of several factors
among several others, including field sobriety tests, used in this determination.

In my opinion, police officers have become too reliant on the result of this test during the initial investigation of a DWI in the field. A Court of Appeals case issued just this week essentially reiterated this.

In State v. Overocker, it was held that a positive result for alcohol and admission by the driver that they consumed alcohol was not sufficient probable cause for arrest.

Remember, it is not illegal to drive with alcohol in your system, unless under 21 or in violation of specific terms of probation. It is illegal when drive when that alcohol has impaired your ability to drive safely or your blood alcohol level is .08 or above.

Returning to the questions presented at the beginning of the post- which test is a license driver required to take under North Carolina implied consent laws?

If a driver is stopped by a police officer under suspected DWI, the implied North Carolina implied consent law requires a person to submit to a breath or blood test after probable cause to arrest.
This breath test is usually administered at a police station under regulated conditions or the blood draw is administered at a hospital.

What happens if a person refuses to take this test- that is another post to come later- The DWI refusal.

Criminal Law Updates Provided by The Law Office of Carilyn Ibsen PLLC. (888)542-2427

Labels: ,

posted by Carilyn Ibsen at 0 Comments Links to this post