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Attorney Carilyn Ibsen's Blog

about Criminal Defense in North Carolina and South Carolina

 

Sunday, August 30, 2009

More Police Officers- Less Crime???

Charlotte is using federal stimulus dollars to hire 50 more police officers this year. In addition, the City Council recently voted to use money that was originally slated to improve roads to hire 75 additional police officers. This sounds great- more police officers, less crime. Case closed. However, I don't believe it actually works out this way.

Spend a day at the courthouse and you will see the volume of cases that one day holds. In administrative courtroom 1130 you can see over 400 cases in one day. On the fourth floor, you will see the variety of misdemeanor assault and battery among thefts and driving while intoxicated. In courtroom 1150, attorneys wait for police reports so the District Attorney can decide whether to proceed with the case. Prosecutors deal with the heavy caseload. Defense attorneys handle each case individually and try to separate their clients from the masses.

Everyone wants the streets safer. No one likes crime. Put more police on the road. Yet, laws are enacted that are difficult to enforce, texting while driving in an example. Police bring more cases to the courthouse. Meanwhile, the Charlotte Observer reports that Governor Perdue ordered an additional 5 percent across the board budget cut two weeks ago from state agencies, which includes the court system. However, Mayor Pat McCrory called for the courts to speed up prosecutions. Mecklenburg County District Attorney Peter Gilchrist responded "You spend money on the Police Department to bring in more cases, but if the courts can't respond, then we're the bottleneck in the system".

http://www.charlotteobserver.com/local/story/915420.html?q=a plea for more

The overall goal of enhancing public safety by adding police officers is great in theory, but appears to come up short in everyday practice.

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North Carolina's Habitual Felon Act

North Carolina has an equivalent to "Three Strikes, You're Out". The Habitual Felon law was enacted in 1967, but wasn't used on a regular basis until the 1990's. Under the Act, a habitual felon is a person who has committed three or more felonies with each felony being committed after conviction of the previous felony. Here is a link to an article that highlights the problems with the law:
http://www.newsobserver.com/2979/story/1558666.html

This article explains how a three time offender who breaks into a parking meter or has a crack pipe with residue can be punished the same as a rapist. Recently, Mecklenburg County District Attorney Peter Gilchrist wrote an article in the Charlotte Observer stating he was forming a team of prosecutors to specifically evaluate each case that qualifies for habitual felon status. Prosecutors would evaluate each case in an attempt to prevent the thief from being punished the same as a rapist. Here is the link to the article:
http://www.charlotteobserver.com/opinion/story/664056.html

Sounds like a good place to start. With the Observer reporting that 200 inmates were sleeping on the floor of the jail due to overcrowding and the court system overloaded with new cases, dockets full, something needs to change.

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Saturday, August 29, 2009

Three Strikes and You're Out- California's Answer to Violent Crime

In my earlier blog on texting while driving, I briefly wrote about well intended laws that become impracticle to enforce. In California, the legislature enacted the three strikes law. It sounded great on its face- put serious and violent criminals away for life. Politicians loved it. In reality, it became problematic to enforce. As a prosecutor I had cases where an individual committed a robbery in the late 70's, went to jail and remained crime free for years. In 2002, the same individual made a poor decision and steals some clothing from a local store. The case comes to my desk with all strikes alleged, meaning the robbery incident from the 70's is alleged as prior and serious violent felonies. As charged, if convicted, this person was going away for 25 to life for a nonviolent offense of stealing clothes.

The prosecutor has the ability to 'strike' the strikes, and make the theft a straight misdemeanor or felony punishable by much less time. Here is the dilemma: a prosecutor is suppose to be tough on crime, while also acting 'in the interests of justice'. Do you strike the strikes and risk your career path at the Office and risk being viewed as soft on crime? But wait, the judge can also strike the strikes. Prosecutor tells defense attorney- ask the judge to strike the strikes. Defense attorney replies that this judge won't strike strikes. Defense attorney now has to find a judge to strike the strikes. As time went on, cases had to be looked at on an individual basis to determine if the case was appropriate for the three strikes law. Meanwhile politicians stated they supported the bill, but never saw how it actually was implemented in the everyday caseload of a prosecutor and defense attorney.

Violent crime is terrible. People should be punished appropriately for their actions. However, simply enacting a broad base law that doesn't take into account not just a person's criminal history, but also the years they remained crime free and the facts of the current case, whether violent or not, is not the answer. It sounded great on it's face, even had a great name, '3 strikes and you are out!'. In reality, difficult to manage.

North Carolina by comparison has the habitual felon law. More on this in the next post.

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Friday, August 28, 2009

All Hands on Deck for Charlotte Mecklenburg Police Department

As the Charlotte Observer highlighted in the today's local section, if you live or work in North Charlotte, be prepared for extra police on hand this weekend. Not 'Booze it or Loose It' this time, Charlotte Mecklenburg Police are calling it 'All Hands on Deck'. CMPD North Division will have approximately 80 officers on patrol tonight. That is double what is normally on patrol. There will also be checkpoints among the extra foot and motor patrol.

CMPD's North Division is approximately 94 square miles in size. It stretches from Lake Norman in the north all the way to the Derita neighborhood in the south.

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Sunday, August 23, 2009

DWI Checkpoints in Charlotte: Booze It and Lose It

Charlotte Mecklenburg Police Department is currently running their "Booze it and Lose It" campaign. DWI checkpoints are scheduled to be set up throughout Mecklenburg County through September 7th. Last night 114 drivers were arrested at a checkpoint station on South Boulevard near Pineville. Police arrested seven for DWI, issued three open container violations, forty five driving with a suspended license or driving with no license violations and one concealed weapon charge.

FYI: Booze it and lose it will be in full force this Saturday night in the Eastway division.

These checkpoints present defense attorneys and prosecutors with interesting legal issues. The US Supreme Court and North Carolina Courts have set forth constitutional guidelines that police must follow when running a checkpoint. If not followed, these cases can ultimately be dismissed upon the correct motion being heard in district court. I had a client last week charged with DWI. He was arrested several months ago at a license checkpoint ran by CMPD. I ran a motion to suppress for lack of probable cause to arrest and unconstitutional checkpoint. It worked out for him. The Court found lack of probable cause to arrest. All the evidence leading to his arrest that night was suppressed, leaving the District Attorney with no evidence to prove their case. The DWI is ultimately dismissed. These motions are an important tool that defense attorneys use in their DWI cases.

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Saturday, August 22, 2009

Mail Road Rage in Charlotte?

Have you noticed how your mail is delivered in some areas of Charlotte? Here is the scene: unmarked car, driver without uniform and a small obscure US MAIL sign hanging off one part of the car. Driver of the vehicle is sitting in the passenger seat with his/her left leg operating the accelerator and break pedals, left hand is holding the steering wheel, while right leg is on the passenger side and right arm is stuffing mailboxes. Does anyone else see this as a public safety issue? In our community, the mail delivery car swerves across yellow lines and medians to deliver mail on both sides of the street, performing an urban jungle cross county motion. Yesterday I saw a mail car driving on a heavily traveled road with two wheels on the sidewalk and two wheels on the road. My old hometown had marked USPS cars with the steering wheel on the passenger side. They also wore uniforms. I just find the Charlottean system of sub-contracting this essential service to be highly unusual at best and a public safety issue at worst.

I tried to find a video of this on You Tube, but no luck. I did find this video on how to speed up your mail delivery- interesting, but a lot of work. However, if you subscribe to an online stamp company, like stamps.com (my free endorsement), they do all the work for you.
http://www.youtube.com/watch?v=jPhXVrp0_oI
Anyway, more legal stuff next time.

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Sunday, August 16, 2009

Do U like 2 Text?

If you are one of millions who love to text and do it while you drive- you might soon have an unwelcomed encounter with a police officer at a traffic stop. On December 1st the new law will go into effect that makes texting while driving illegal. The fine will be $100 plus court costs. On a side note, court costs are currently $121, but as the budget woes are bound to continue, be prepared for those to increase as well.

Ok, so here is my issue with the law- it is still legal to talk on your phone, dial a phone number, and check your messages. You are driving down the interstate and you see the little red light blinking every few seconds on your Blackberry. You reach down and grab your phone, unlock it, and start pressing buttons to check your messages. Officer traveling behind watches you do this. Should the officer pull you over? My long winded point- how does an officer tell if you are dialing a call or sending a text? How is this going to be enforced? Moreover, assume the officer has a strong case you are texting. He pulls you over. Does the officer have grounds to seize the phone? If he does, shouldn't the officer get a search warrant before he is legally permitted to access the history on your phone.

Don't get me wrong, texting while driving is extremely dangerous. A recent study in Britain found that texting while driving is more dangerous than driving while intoxicated. My issue is with the legislature passing a law that sounds great. They can boast about it as an accomplishment when they go for re-election and bombard us with our favorite election commercials. Meanwhile these well intended laws leave a mess for the police, judges, state prosecutors and defense attorneys to work out. More on well intended laws draining state resources later.. Hint.. 3 Strikes, You're Out.

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Wednesday, August 12, 2009

New requirement at the North Carolina DMV: A Library Card

Regardless of how many people warn you about your first trip to the DMV in Charlotte, nothing will quite prepare you for it. My mother-in-law recently moved to Charlotte from California. My husband and I both tried to adequately prepare her for the experience she was about to encounter at the Arrowood Road location. Putting aside the Ritz Carlton customer service she received, she subsequently walked out of the location with nothing really accomplished except an appointment in one month to take her driver's license exam and the corresponding license handbook to study.
The Library Card Requirement:
The DMV now requires you to sign for the handbook and informs you that you must return the handbook within two weeks of you signing for it. My mother in law asked the obvious question- "Can't I just return it when I take my exam in one month." The response: "No. It must be returned within two weeks."
The Penalty for an Overdue Handbook
Unknown. I asked my mother-in-law what the penalty was if it wasn't returned within the stated time period. She stated that she was afraid at that point to ask any more questions. I assured her as my mother-in-law I would defend her in any subsequent prosecution surrounding the late return of the DMV Handbook.

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When can my attorney appear for me in court?

Two of the most common questions asked by clients is "Can you appear for me?" and "Will I have to go to court?". My answer is a typical lawyer answer- depends.
An attorney can appear for you on most traffic offenses. The more serious the offense, the less likely the attorney will be able to appear for you. Here is a link to the page that describes what offenses require your appearance.
http://www.nccourts.org/Forms/Documents/1088.pdf
If you are facing of a general misdemeanor offense in Mecklenburg County, an example is driving while intoxicated or driving while license revoked, an attorney can appear for you at the administrative trial setting date. In Mecklenburg County this occurs on the first floor in courtroom 1130. If the case does not settle in 1130, the case is set for trial. Once this date is set, your presence will likely be required.

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Friday, August 7, 2009

Tax free weekend in North Carolina

I have to admit that I like Tax Free Weekend. It seems like there is a tax for anything on everything. With the new budget about to be signed by Governor Perdue, look for higher sales taxes among new taxes. I'll take a weekend without having to pay sales tax on a pack of pens.
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Thursday, August 6, 2009

How do I find my court date in Mecklenburg County?

You receive a traffic ticket or citation. You can't read anything on the papers given to you by the police. You don't know where to go. Here is some basic information:
Mecklenburg County Courthouse:
832 East Fourth Avenue
Charlotte, NC 28202

Finding your court date:
http://www1.aoc.state.nc.us/www/calendars/CriminalQuery.html

Your first appearance will most likely be on the first floor. If it's a traffic ticket or misdemeanor, it will be in room 1130. This is an administrative courtroom; your attorney can appear for you. If you have not hired an attorney, you must appear. Be prepared to wait- there can be as many as 1000 cases in that courtroom daily.
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Monday, August 3, 2009

Possession of deadly weapon case dismissed- police can't always search your car!

A few weeks back I wrote about the US Supreme Court case Arizona v. Gant. The Court took a very big step and limited car searches by police officers in certain circumstances. Last week, my client had her case dismissed due to the Arizona v. Gant ruling. Accused of possession of a deadly weapon, the police had found the knife as a result of a car search where her friend was arrested. I came to court with case in hand, ready to run my motion to suppress. However, I have to tip my hat to the Assistant District Attorney handling the case- he read the case, talked to the police officer, and dismissed my case. Something that didn't start well for my client, all ended well...
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