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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



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Friday, May 8, 2015

Common Sense Justice- Raise the Age in North Carolina

Should 16 and 17 year olds accused of misdemeanors be prosecuted as adults?

Important legislation is pending in Raleigh that would change the way 16 and 17 year olds are treated in North Carolina’s criminal justice system. Click here to read the Youth Offenders Rehabilitation Act.

Shockingly, North Carolina and New York remain the only two states in the country that still prosecute 16 and 17 year olds, when accused of misdemeanors, as adults. New York is expected to pass legislation soon changing this law.

North Carolina should do likewise to avoid being the only State in the Union on the wrong side of common sense justice.

As a criminal defense attorney who has practiced criminal law for over 15 years, both as a prosecutor and defense attorney, I encourage elected officials to pass this legislation.

First, this legislation would only apply to 16 and 17 year olds accused of misdemeanor offenses; felony cases would remain in adult court. Also, the Bill’s passage is common sense: teenagers are not yet adults.

Juvenile cases are heartbreaking. They are heartbreaking for the families who see their 16 year old family member incarcerated with adults in the county jail. They are heartbreaking when an individual is reminded of the case every time a background check is completed. A bad decision made during youth can unfairly alter a life forever.

Absolutely, crimes that are committed are horrifying for those who have been victimized. As a prosecutor, I sat with many victims and remember their raw emotions and stories. I will never forget the victim whose husband was killed; I won’t forget her story of getting into her car to go look for him and drove upon the crime scene. I often wonder how their daughter is doing after losing her dad when she was still in elementary school. You don’t forget these cases. They stay with you. As a defense attorney, you will always feel empathy for crime victims.

Many argue those who commit particularly heinous crimes or young individuals with violent histories must be treated as adults. This legislation does not change that. The District Attorney has the discretion to ‘transfer’ cases to adult court if the facts and history of the case support it. This new law only applies to misdemeanors, not felonies cases that would qualify for transfer.

The majority of the cases in court everyday are not these violent cases. Most cases are teenagers who make a bad decision. Many cases involve teenagers that come from broken homes, troubled areas and lack any means to support themselves. Many are living below the poverty level and are not regularly attending school. They are raising themselves and sometimes a little brother or sister.

The existing system of adult justice for 16 and 17 year olds, resulting in conviction and incarceration as adults, unreasonably alters their futures. Giving teenagers longer access to the juvenile system where they have educational services, treatment and community programs is imperative and can ultimately allow them an opportunity to succeed.

NC Child and Council for Children’s Rights are two organizations worth mentioning. Both continue to work every day to “put children first” and their views advocating raising the age are worth visiting.

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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.

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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.


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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.

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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.



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