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Attorney Carilyn Ibsen's Blog

about Criminal Defense in North Carolina and South Carolina

 

Wednesday, December 14, 2016

The Motion for Appropriate Relief

Unrepresented by counsel- a common phrase heard in courtrooms every day. This occurs when a person waives their constitutional right to an attorney and elect to represent themselves in a criminal proceeding.

I saw it this week in Mecklenburg County District Court. The judge called a young man up and asked what he wanted to do with his case. The young man said he wanted to plead not guilty and represented himself at trial. An hour later this young man was found guilty and now has a misdemeanor assault conviction on his record.

Attorneys that regularly take cases to jury trial are also well aware of the saying "You can't unring the bell". It is often heard in trial courtrooms outside the presence of the jury. It is an analogy that refers to the difficulty of forgetting information once it has been heard. When a jury hears inadmissible evidence in a trial, sometimes the damage is so prejudicial, a mistrial must be declared.

Contrary to the saying, there are times a North Carolina criminal attorney can unring a bell.

Depending on the facts of the case, an attorney can file a Motion for Appropriate Relief (MAR). It is a request to reopen the case based upon the fact that the defendant did not knowingly, voluntarily, and intelligently enter a guilty plea or waive the right to be unrepresented by counsel.

It often occurs in traffic cases. A person will come to court and unknowingly admit to a speeding violation that results in a license suspension. A letter from the North Carolina Department of Motor Vehicles will arrive approximately one month later stating their license is being suspended.  The person calls my office in a panic.

Time to unring the bell by filing a Motion for Appropriate Relief.

Depending on the facts of the case and the individual's driving history, this can be a successful tool to setting aside the conviction and the suspension.

MAR's are also filed in cases where a person pays a citation online, unaware of the consequences. A father did this with his son's alcohol possession case which you can read about here. We successfully file a MAR in that case and the case was ultimately dismissed.

If you have admitted to a traffic violation, a criminal misdemeanor such as larceny, shoplifting or unlawful concealment, contact an attorney to see if they can help you with a Motion for Appropriate Relief.

Most importantly, if you are facing a traffic violation or a criminal charge, talk to an attorney before you go to court. Don't find yourself sitting at counsel table in a courtroom by yourself.

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Thursday, November 10, 2016

Your Frequently Asked Questions Answered

A longtime friend recently received their jury summons in the mailbox. Not looking forward to completing their civic duty, they asked "Can you get me out of jury duty?". This question caused me put together a list of the some of the frequently asked questions I receive as a criminal defense attorney in Charlotte. On that note:

1. Can you get me out of jury duty? 

No. Everyone must complete their service. Depending on your county and circumstances, an extension can sometimes be requested but that must be handled through juror services at the courthouse. I can advise you on lunch places, where to park and let you know that Mecklenburg County has one of the nicer juror waiting rooms, but I cannot get you out of service. Try to enjoy it and the opportunity to see the system at work.

2. If the officer doesn't show up on my first court date, does my ticket get dismissed? 

No. In most North Carolina counties, including Mecklenburg, Gaston and Union County, your first court date is an administrative court date.  An officer is not subpoenaed to come to court on this date. If the case is not settled that day, it can be set for trial. The case will then be continued to one of the officer's two monthly court dates and the officer will be subpoenaed.

If the officer does not show on that date, the District Attorney will often be granted one additional continuance. However, the officer is usually present as they have numerous cases set that day, including DWI's, theft cases and assault cases. A judge will also find good cause for continuance if the officer has required training, approved vacation or military leave.

3. My speeding ticket states I have a mandatory appearance. Do I have to appear in court? 

Yes, unless you have an attorney appear for you by waiver of appearance. Attorneys regularly appear for clients in Mecklenburg County District Court for traffic tickets, theft cases and other misdemeanor offenses. Courtroom 1130 can have over 1000 cases set in one day. Talk to an attorney before you go to court. An attorney can often handle the case for you. If you live out of state, the cost will usually be less than the cost of an airline ticket.

4. Can I get my traffic ticket dismissed because the radar wasn't working correctly? 

Hundreds of traffic tickets are issued every day in North Carolina. Most state troopers and police officers do not rely exclusively on radar. Case law in North Carolina allows officers to testify to a visual speed based on their training and experience. Surprisingly, case law also permits a lay person to testify to speed estimates. Radar is not the only tool used by law enforcement.

5. My name is spelled wrong on my criminal or traffic citation. Can it get thrown out based on wrong spelling?

No. The District Attorney can request to amend to conform the pleadings at any time in the proceedings, including during trial. In most situations, this is permitted.

6. Can I pay a fine for my traffic ticket online so I don't have to hire an attorney or go to court? 

I always recommend consulting with an attorney before paying fines online. There can be adverse and unforeseen consequences.

Some traffic violations can be paid online. I do not recommend this as they often have insurance implications. Many are surprised to hear that a stop sign violation is 3 points in North Carolina. Many times an attorney can negotiate a result that does not cause a points or insurance premium increase.

Another example of paying a fine online involves underage drinking. I had a client charged with underage drinking. The parent went online and paid court costs. The case was closed. However, the parent was unaware that by paying the fine, the child admitted to the offense, had a criminal conviction, and DMV subsequently mailed notice of a yearlong license revocation.

The family contacted me for help. I was able to file a motion for appropriate relief (MAR), had the case reopened and the conviction set aside. The client committed a class for dismissal of the charge. The charge was later expunged and the case is sealed.


More commonly asked question to come later on Miranda rights and fingerprint evidence.

Traffic and Criminal Law Updates Provided by the Law Office of Carilyn Ibsen (888)543-2427



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Monday, October 31, 2016

Search Warrants & Cell Phones


According to a Reuters survey, most people cannot live without their cell phone, and if given a choice, would rather lose their wallet than their cell phone. Verizon Wireless recently conducted a lighthearted 'would you rather' survey' to determine how attached people are to their cell phone. Four percent said they would rather lose their hair than their cell phone and nine percent said they would rather lose vacation days than their phone.

The importance of our cell phones has become paramount in today's society. Our phones contain more than a detailed snapshot of our lives with all the photos, videos, emails and text messages they hold.

Police have found them equally valuable in criminal investigations. As a result, appellate courts across the country are issuing opinions on this frequently litigated issue in courtrooms today- do the police need a search warrant  to look at your cell phone.

The Fourth Amendment prohibits the unreasonable search and seizure of a person and their property absent probable cause or a search warrant. A person's cell phone squarely falls within the parameter of the Fourth Amendment. Most law enforcement routinely seek out a warrant to search a cell phone involved in their criminal investigation. However, the situation becomes more complicated for an officer when a crime occurs while they are on duty. Once the officer believes the suspect has committed a crime, does that provide probable cause to search the person's cell phone for evidence of the crime?

The Massachusetts Supreme Court  recently addressed this issue. Commonwealth v. Onyx found that a 'nexus' must exist between the crime and the cell phone to justify the search. In the Onyx case, the Court found probable cause did not exist and found the search violated the Fourth Amendment;
Here, prior to seizing the defendant's cellular telephone, police had received information that the robbery and homicide under investigation had been committed by several people, that the defendant likely was one of those people, and that he owned a cellular telephone. They also knew from experience that coventurers often use cellular telephones to communicate with each other, and that these devices may contain evidence of such communications. According to their own statements, however, the detectives here did not have any "information that [a] cell phone was used in the crime under investigation," nor did they claim that there existed a particular piece of evidence likely to be found on such a device. In essence, then, their decision to seize the defendant's cellular telephone was made because (a) they had reason to believe that the defendant had participated with others in the commission of a robbery-homicide and (b) their training and experience in cases involving multiple defendants suggested that the device in question was likely to contain evidence relevant to those offenses.
This, without more, does not satisfy the nexus requirement. "Information establishing that a person [may be] guilty of a crime does not necessarily constitute probable cause to search" or seize the person's cellular telephone, even where the police believe, based on their training and experience in similar cases, that the device is likely to contain relevant evidence. Commonwealth v. Pina, 453 Mass. 438 , 441 (2009). Rather, even where there is probable cause to suspect the defendant of a crime, police may not seize or search his or her cellular telephone to look for evidence unless they have information establishing the existence of particular evidence likely to be found there.
Most are not involved in complicated fact scenarios such as the robbery/homicide case above. A more common scenario asked by clients is whether an officer can look at a cell phone when issuing a traffic or speeding ticket. Some have asked if a police officer can look at their cell phone for evidence of a drinking pattern after a DWI arrest.

Generally speaking, most searches of a cell phone will require a warrant. However, if an officer asks you for permission to look at your phone and you consent, you have likely waived Fourth Amendment protection. Consent is a topic for another day...

Meanwhile, criminal courtrooms continue to litigate the definition of nexus, probable cause and the overall right to privacy. And cell phones will continue to be more important to some than their vacation days....

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





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Wednesday, October 26, 2016

Teens & Traffic Tickets

Last week was National Teen Driver Safety week, a week designated to remind us what we already know- the dangers of teen driving. I have represented many recently licensed teenagers who were involved in crashes, issued speeding tickets or cited with violating restricted license provisions.

It is important to understand the graduated license requirements in North Carolina. Shea Denning recently did an excellent summary in the NC Government blog. While your teenage driver may not remember their algebraic formula for the SAT, most teenage drivers I speak to can tell you exactly when, where and what time they can drive when they turn 16. The issue becomes whether they abide by the requirements. Many times young drivers were not engaging in reckless behavior when cited. Often they were only driving home from a babysitting job or a person's house. As a defense attorney handling these cases, it is important to separate these cases from the cases where reckless and careless behavior was engaged in.

Many parents ask if they should immediately enroll their teen in traffic school after receiving a traffic ticket or other traffic violation. I am often asked about Brakes traffic school in Mecklenburg County. Talk to an attorney first. Each case is different. As an attorney who handles traffic cases, I want to see the teen's driving record, speak to the driver, know how many family members are on the insurance policy and understand the circumstances around the case. Often overlooked is the teens performance in school. This is very helpful when negotiating a case.

Putting your teen behind the wheel likely ranks in the top three most anxious moments for parents. If the teen is then cited with a traffic ticket, it becomes extremely stressful for families.  As an attorney who works with teen drivers and parents regularly in North Carolina, there is often avenues that can be pursued which would prevent a license revocation or insurance increase. Talk to an attorney before going to court.

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Thursday, October 20, 2016

DWI on a Golf Cart?

As the Charlotte area grows and planned communities suddenly appear next to small two lane roads, so do the golf courses. However, many homeowners are investing in golf carts even when they don't play golf. Golf carts now appear at school bus stops, Harris Teeter parking lots and often times outnumber vehicles in retirement communities such as Sun City in Indian Land, SC.

However, drive with caution. In North Carolina, you can be arrested and charged with driving while impaired when operating a golf cart. If you are driving a cart on a public roadway, you are held to the same standards as if you were driving a vehicle. Surprising to many, there have even been impairment cases on bikes, lawnmowers and horses.

I recently handled a golf cart driving while impaired case in Mecklenburg County. My client was charged with DWI, reckless driving and hit and run.  The case was ultimately dismissed after I successfully argued a probable cause to arrest motion prior to trial. My client had allegedly driven a golf cart to a local restaurant, driven home and hit a parked car in an apartment complex. The court granted my motion to dismiss for lack of probable cause to arrest my client.

This case had a successful outcome for my client. However, this case was treated and argued the exact same way as a vehicle driving while impaired case. Proper motions were argued and relevant case law was utilized  to support our position.

Most importantly, police officers, the district attorney and judges do not consider it mitigating evidence that a person chose to get behind the wheel of a golf cart instead of a vehicle.

If you have been charged with a DWI or traffic case in the Charlotte area, contact the Law Office of Carilyn Ibsen for a legal consultation at (888)543-2427.





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Wednesday, May 4, 2016

Reliability of Nystagmus in a DWI/DUI Case

Horizontal gaze nystagmus is a common field sobriety test administered during a DWI/DUI investigation. The police officer holds a finger or pen a certain distance away from the person, making an assessment regarding their level of alcohol impairment. The officer testifies at trial to certain clues exhibited during the test that indicate impairment and then concludes whether the person is impaired for purposes of driving.  The results of this test are used in conjunction with results from other field sobriety tests administered at the scene.

Shea Denning at the UNC School of Government highlighted the recent appellate court case State v. Goodwin.  The Court concluded in Goodwin that a police officer must have sufficient experience, education and training in conducting and interpreting the results of the nystagmus test before the officer's testimony is admitted into evidence.

People will go back and forth regarding the accuracy of the nystagmus test.  Some police officers will tell you it is one of the most accurate field sobriety tests they give in the field. Other police officers state that the accuracy can depend on the conditions surrounding the test and the subject.


I have spoken to a notable ophthalmologist and retinal eye surgeon in North Carolina about this test. He told me that this test was designed to be given under controlled settings. While the test can be highly reliable in controlled settings when administered correctly, he questioned the reliability of the test when given in the field by police officers. Also, the test may be completely unreliable based on a person's own medical issues.


The test is suppose to take over a minute to complete. I have rarely seen this. I have included a video below showing how the test is correctly administered. What happens in the field is much different.
https://www.youtube.com/watch?v=selZ9WrD7ac




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Tuesday, April 26, 2016

The Heroin Epidemic

One constant in my 16 years of criminal practice, unfortunately, is heroin. As one judge correctly called heroin the "demon" of all drugs, I have witnessed heroin destroy families, empty bank accounts and send once productive citizen to jail cells.

Heroin has been in the news lately. 60 minutes had an excellent segment last Sunday. Take a moment to watch the piece and learn about drug courts. As I have said before, my perspective on addiction changed dramatically when I become involved in drug and DWI courts as a prosecutor in California. As a former prosecutor and now a practicing defense attorney, I am a supporter of drug courts.

Local news channels will be airing segments on this issue. I encourage everyone to watch these segment.  You can learn more about drug courts here



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

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