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Attorney Carilyn Ibsen's Blog

about Criminal Defense in North Carolina and South Carolina

 

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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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. 

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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.

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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.

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Thursday, September 26, 2013

DWI/DUI & The Public Interest

Today's Charlotte Observer contained an article regarding a recent audit finding that North Carolina failed to make DWI/DUI court results accessible to the general public. Under a law enacted seven years ago, North Carolina Administrative Office of the Courts (AOC) is legally required to provide detailed information of conviction/acquittal rates in DWI cases in addition to detailed statistics on how judges and prosecutors handled cases. You can read the audit here.

To actually comply with the detailed requirements of this law, AOC would need an additional 25 million dollars in computer upgrades. In light of the AOC's technology budget being cut from 45 million dollars to 29 million, I don't see how this is going to happen.

Mecklenburg County Courthouse is a busy place. The dockets are heavy and the court staff is working with technology that is anything but cutting edge. Clerks and Attorneys use the antiquated green screen technology that resembles the computer system in the 1983 movie War Games or the MS-DOS system.

Asking the Courts to direct additional funds towards technology that focuses on a narrow set of cases should be questioned; every criminal case is fact specific. A DWI case can be dismissed for not only lack of evidence but also if the police officer is unavailable to testify. Charlotte Mecklenburg Police Officer Randall Kerrick is now facing charges of Voluntary Manslaughter in Mecklenburg County. If the District Attorney decides to dismiss all criminal cases where he was the primary police officer involved, would the court data reflect this specific reason for dismissal? Or, would the judge assigned to the courtroom where Officer Kerrick's cases were set for trial appear to be 'soft on crime' when dismissals were entered into the computer system?

Mecklenburg County Criminal Attorney Updates Provided by The Law Office of Carilyn Ibsen PLLC
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Sunday, August 11, 2013

Criminal Courts & The Mentally Ill

The Charlotte Observer ran a piece today highlighting the lack of resources for mentally ill children in North Carolina. The article does not specifically address the criminal justice system, but does briefly mention how they often intersect. However, any criminal defense attorney in Mecklenburg county will tell you there is a correlation between lack of services available for mentally ill patients and criminal behavior.

The article mentions the effects of budget cuts on available services for mentally ill children. With very few places for patients to stay, many are forced into environments that pose a high risk to family members and often result in criminal conduct. The young adult is then taken into custody and a criminal case ensues.


Mecklenburg County does have mental health court. Similar to drug courts, defendants are placed on probation, have probation officers and are required to come to court regularly to speak to the judge about their progress. Many find success in this structured setting. However, some individuals have such severe diagnoses, they require secured placement. This does not exist. Most placement facilities are forced to  have a revolving door policy;  New Hope of Carolinas is a short term facility- young adults are admitted, once they are stabilized, they must be released.


It is an ongoing issue I see regularly in both criminal courts and incompetency/guardianship proceedings. Finding solutions for these issues is an ongoing effort. I'm glad the Observer chose to highlight the issue today. 

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Sunday, June 30, 2013

Forced Blood Draws- A Video

Simple Justice "But for the Video, This won't hurt (me) a bit" has an eye opening video depicting several arrested for DWI/DUI undergoing a forced blood draw. It highlights the controversy around forced blood draws in DWI/DUI cases. The recent Missouri case handed down by the US Supreme Court paves the way for the necessity of a warrant in forced blood draws, however a warrant does nothing to diminish the severity of strapping citizens down, putting them in a head hold and forcing a needle in their arm.

I have blogged on the practice of forced blood draws. As a Deputy District Attorney, I handled these cases regularly and showed videos of them during jury trials. It is hard to describe how extreme, and in the words of Simple Justice, "barbaric" they are.  This video, although eight minutes in length, is worth watching.

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