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Attorney Carilyn Ibsen's Blog

about Criminal Defense in North Carolina and South Carolina


Sunday, September 27, 2009

North Carolina Changes DUI/DWI Law

I wrote an earlier post addressing the recent case of Melendez-Diaz v. Massachusetts. The North Carolina legislature issued a response to the Supreme Court ruling in Melendez-Diaz. Four pages of single space text, that appears to be written in the English language, essentially changes the previous law that allowed the State to admit blood and breath test results in DUI/DWI cases without a witness. This is important because once the US Supreme Court issues an opinion ruling a law unconstitutional, the state must change the law. Here is the new statute- good luck reading!

With respect to blood and breath results in DUI/DWI cases in North Carolina, the State will now be required to notify the accused 15 business days before the date they intend to introduce the result in court and provide the accused with a copy of the result. The accused will then have five business days before the proceeding to file a written objection with the court. If the objection is not filed, the result can be admitted without any witness.

Jessica Smith from the UNC School of government does a great job explaining the new law. Here is the link to her summary-

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Getting Your License Back After DWI Conviction

My previous post addressed how to get a valid license when you have a DUI/DWI case pending. Now, assume you have pled guilty or were convicted of the DWI. A common question I receive is how do you go about getting your license back after a DWI conviction.

A limited driving privilege is available to most after conviction. Usually, a person's license will be suspended for 1 year after the date of conviction. If a person meets certain eligibility requirements, a limited privilege can be obtained from the courts. First, the driver must hold a valid license or had a license that was expired for less than one year at the time the DWI occurred. Second, the driver must not have any previous DWI convictions in the last seven years and not have any other DWI cases pending in the court system. Third, the driver must of received a level three, four, or five punishment from the judge. Finally, the driver must have valid insurance and filed a substance abuse assessment with the court.

Generally speaking, if granted, the driver will be allowed to drive to and from his/her place of employment, school, court ordered drug treatment programs, court ordered community service, emergency medical care and tasks related to the maintenance of his/her household.

A driver can apply for this privilege at the time of sentencing. However, if the driver was a .15 or above, the license will not be effective until 45 days after sentencing and the driver will only be allowed to drive to and from work, school, court ordered substance abuse programs, and the interlock service facility. North Carolina law will also require an ignition interlock device on the vehicle the driver operates.

The law that addresses this is GS 20-179.3. If you print this statute from your computer, it will be approximately 6 pages of single space information. It is full of exceptions, clauses, and confusing legal terminology.  Again, the punishment for driving on a suspended or revoked license is very severe. Every case is unique and different exceptions might apply making a person ineligible for the privilege. Court documents must be correctly filled out. Talk to an attorney before you get in a car and drive anywhere. Talk to an attorney before you go to the courthouse and try to do this yourself.

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Saturday, September 26, 2009

DWI- North Carolina's Pre Trial Limited Driving Privilege

You have been arrested for Driving While Intoxicated. The police officer took your drivers license. You now have a criminal case pending for DWI. Can you drive while your case is pending in the court system?  Under North Carolina law, a person arrested for DWI can apply for North Carolina's pretrial limited driving privilege.

A police officer will automatically take a person's license for a minimum of thirty days when they arrest and charge a person for DWI. For the first 10 days after arrest, the person is not allowed to drive. Generally speaking, after the 10th day, the person can file a motion with the court asking for a limited driving privilege for the remaining 20 days. Certain requirements must be met; at the time of the alleged offense, the person must have had a valid drivers license or have a license expired for less than 1 year, they cannot have any other DWI cases pending, and they must obtain a substance abuse assessment from a court approved program. A substance abuse assessment requires the person to go to a court approved provider and complete an interview with a counselor regarding their alcohol/drug use. If all criteria are met, the person must also present to the court a certified DMV Driving Record, a DL-123 proof of liability insurance, the substance abuse assessment, several copies of the court mandated limited driving privilege form, and, of course, a $100 civil filing fee. The judge will most likely grant the request and the person can drive for the remaining 20 days of the revocation.

After 30 days, the revocation period ends. At this point, the person can go to the courthouse and get their hard license back. In some counties, there will be an additional filing fee. In Mecklenburg County, the drivers license should be in the court file, called the shuck. Occasionally, however, the license is not there, somehow lost in the arrest and booking procedure. Or, the license will be stapled multiple times to different papers to a point of mutilation. In both cases, a person will have to go to the DMV and get a duplicate.

Once the 30 day revocation is over, assuming the license was valid before the offense, a person can legally drive once they have paid the revocation fee and obtained their license . Sometimes it is hard to understand how a person goes from being restricted from driving to being able to drive within 30 days after arrest; North Carolina statute states that if an officer has reasonable grounds to believe a person has violated an implied consent offense, a DWI, the officer is required to submit a revocation report to the court. However, once the revocation period ends, a person can legally drive because they have not been convicted of any offense. The person has only been accused and in our system a person is innocent until proven guilty. So while the case is pending, the person can drive.

If you are eventually convicted of the offense, your license will be revoked. More on this in the next post.

Warning- the punishment for driving on a revoked license when you have a DWI offense is very severe. A person does not want to face this charge. If a person is unsure if their license is suspended or revoked, I always recommend speaking to an attorney. Do not drive if your license is revoked.

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Saturday, September 19, 2009

Juvenile Crime Prevention- a Horse Lover's Opinion

Anyone who is an animal lover may be able to relate to this post. I grew up around horses. I started riding around 7 years old and didn't stop until the first year of law school. This week my family had to make the difficult decision to euthanize my competition horse Chrytique (The spelling is different- he was named after his father, Chrysos). I was introduced to Chrytique when he was three years old and started riding him competitively when he was seven. Needless to say he has been in our family for almost twenty years. His legs finally gave out on him this week and we had to say goodbye. So, in honor of Chrytique, I wanted to give a horse lover's opinion on juvenile crime prevention.

I have been an attorney for nearly ten years now. I have sadly seen many children work their way through the juvenile and subsequently the adult justice system. I have read many probation and sentencing reports. A common answer to why a young person committed a crime is that they felt like they didn't belong. They wanted to be part of something bigger.

Young adults must be involved in something. They must have something to be passionate about. It doesn't have to be sports- it can be art, writing, science, computers; anything that gives them a reason to do well in school and something to keep them busy after school. The Department of Education has reported that a juvenile is most likely to commit a crime between the hours of 2PM and 8PM, with crimes peaking at 3PM. Chrytique kept me out of trouble. I was responsible for something more than just myself. If I didn't do well in school, I knew someone else would have the privilege of being responsible for Chrytique. He taught me responsibility, how to focus on and reach a goal.  Most importantly, he showed me that I would fail sometimes and, excuse the analogy, how to get back on the horse again.

As a former prosecutor and now practicing defense attorney, I have had the opportunity to analyze crime from both perspectives. A District Attorney enforces the law, protects the citizenry and holds people accountable for their actions. A defense attorney protects the rights of their clients, advocates for their client in court and holds the state to their burden of proving cases beyond a reasonable doubt. When it comes to juvenile crime, it is imperative that the District Attorney, Judges, defense attorneys, and court counselors work together in a collaborative way to achieve an outcome that gives a child the opportunity to succeed. Don't set them up for failure by putting them in a court ordered program that doesn't address their needs.  I recently worked with a court counselor on a juvenile case; he proposed decreasing the minor's probation length by 30 days for every A he received in school. Great idea. Give kids a goal that they can accomplish and show them that they can succeed.

So, there you have it- A horse lover's opinion on juvenile crime prevention. Maybe a bit simplistic. Maybe a bit general. Didn't use a lot of statistics. Just reflected on a very special four legged friend.

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Monday, September 14, 2009

Driving While Intoxicated in North Carolina- Blood/Breath Test Admissibility

Anyone arrested for driving while intoxicated or a DUI immediately wants to know the result of their breath or blood test. Was I over a .08? Will I face charges if I was .07? These are all valid questions, but a central question right now for a defense attorney is how the District Attorney is going to have breath or blood results admitted at trial. A few months ago the US Supreme Court issued an important ruling in Melendez-Diaz v. Massachusetts that subsequently affects the way DWI/DUI cases are proceeding throughout North Carolina Courts.

Prior to the Melendez-Diaz ruling, state law permitted the District Attorney to admit breath or blood test results by a simple affidavit. The person who administered the breath test would never testify. The chemical analysis of a blood result or breath test was submitted on paper and defense attorneys were not given the opportunity to cross examine the witnesses that performed these crucial tests. A defense attorney could always subpoena the witnesses themselves, but many felt they shouldn't have to. The US Supreme Court essentially agreed and stated in the Melendez-Diaz opinion that the burden "is on the prosecution to present it's witnesses, not on the defendant to bring those adverse witnesses into court." Remember, when a person is accused of a crime, it is the prosecution's burden to prove every element of an offense and everyone is presumed innocent until proven guilty. Prior to this case, I felt the law permitting a blood or breath test result admissible by affidavit essentially shifted the burden to the defense to show that the test was wrong. This effectively made defendants prove their innocence, rather than the prosecution proving their guilt.

So how does this change things on a practical level? The District Attorney must call additional witnesses at trial and cannot rely on an affidavit to prove a breath or blood result. Starting October 1st, there will be additional changes to this law. More on that later. Meanwhile, the District Attorney is sending out extra subpoenas.

Here is a short YouTube video on the subject. Looks like this was done before the Supreme Court issued the opinion:

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Saturday, September 12, 2009

Your Stimulus Dollars Hard At Work

For those of you who live and travel the I-85 in Gaston County, a smoother ride is coming your way. Well, for 1.7 miles at least. The I-85 interstate from mile marker 22 through 24 was selected to receive $805,000 of federal stimulus money to resurface the battered road.

$805,000 for 1.7 miles? My Google toolbar performed the math for me; there are 2992 yards in 1.7 miles. We are paying just over $269.00 for every yard of asphalt. Yes, jobs are being created by this, but someone's pocket is getting padded somewhere. Reminds me of the cost to install a traffic light in Mecklenburg County- approximately $220,000.

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Friday, September 11, 2009

Is That Really A Police Car Behind Me?

There was a recent story in the Charlotte Observer about a person who allegedly impersonated a police officer in Mint Hill by trying to initiate a traffic stop on a motorist. The story stated that an individual was driving towards Charlotte on Lebanon Road when a Mercedes pulled up beside him with flashing lights. The Mercedes pulled in front of him and attempted to get the motorist out of the vehicle.

I don't know anything about this case except what was written in the Observer, but it brings up an interesting point about police cars, specifically state troopers. Am I the only one who has a hard time telling if a state trooper car is actually a police car? I see them pulled over on the side of the interstate issuing citations. Many times they are a dull brown color with very little writing on the vehicles. Some barely have any overhead lights on the vehicle. If you travel on the I-40 to Asheville, the troopers drive black Pontiac type sports cars with little writing and lights. What ever happened to traditional black and white or blue/ white police cars?

Check out this You Tube video. Someone put together all the state trooper cars from the 50 states. Many of them are actual sports cars.  I don't know how a person could tell these were actually state trooper cars behind them when traveling at night on a dark road or interstate.

Finally, have you ever been travelling down the interstate at night and you see a car pull behind you with dim lights flashing. You're not sure if that actually is a police car. Do you use your cell phone, call 911, hear the phone ring 50 times before any operator actually picks up, and tell the 911 operator that you don't know if that is actually a police car behind you. I guess when 3 additional cars suddenly appear with all lights flashing and you find yourself arrested in the back of the police car you originally questioned, you will probably know it was a cop.

Although I'm confident the budget doesn't allow police officers to be driving Mercedes, I'm just saying that the a person should be a little nervous about the lights flashing behind them sometimes.

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Friday, September 4, 2009

DWI Checkpoints in Charlotte this Labor Day Weekend

Labor Day weekend is here, summer is officially coming to an end. The usual Friday morning hustle was ending earlier than usual at the Mecklenburg County Courthouse this morning. If you are heading out of town this weekend, watch your speed. According to the article in the Charlotte Observer today both the North Carolina and South Carolina Highway Patrol are going to "aggressively enforce the speed laws" according to Highway Patrol Commander Col. Harry Glover. A hot spot of activity should be the NC/SC state line where I77 and I485 meet.

The Booze it and Lose it campaign  celebrates its 15th year anniversary this Labor Day weekend and is in effect through September 7th. Cabarrus county has a DWI/DUI checkpoint scheduled for Saturday night following up the one they held last Saturday night on Highway 49 in Harrisburg. Here is a link to the article on the hot spot of DWI activity in Cabarrus County on News14 Carolina.

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Wednesday, September 2, 2009

Labor Day Weekend Fun- Matthews Alive! Festival

For anyone who has a family or needs plans this weekend, try out the Matthews Alive festival this Labor Day weekend.  Originally from Southern California, events like this make Charlotte a welcome place to call home. It's great how a small town can put on such an event- 150 craft/art vendors, tons of heart hazardous food and rides for all ages. Also good to know that the event is held to support non profit organizaitons. Big towns just can't do this.

Here is the link for the festival which is located at Stumptown Park in Matthews. It starts Friday night and closes down Monday evening. Have fun and ignore the parking situation.


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