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Attorney Carilyn Ibsen's Blog

about Criminal Defense in North Carolina and South Carolina

 

Saturday, November 28, 2009

Texting While Driving- Illegal in North Carolina

Texting while driving will soon be illegal in North Carolina. The statewide ban on texting while driving officially goes into effect in North Carolina on December 1st. I wrote a blog last August when the law was originally passed addressing how the law was well intended, but poorly thought out. Here is the link to my post "Do U Like 2 Text?"


If found guilty of this offense, you can be fined $100 plus court costs.

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Thursday, November 26, 2009

DWI/DUI Breathalyzer- A NC Christmas Gift

Looking for a Christmas gift for a loved one? I was looking through the Black Friday Christmas ads this Thanksgiving morning and came upon a stocking stuffer on sale at OfficeMax. For $49.99 you can purchase a Backtrack Personal Breathalyzer, a small breathalyzer that estimates your blood alcohol content in seconds. To learn more,  click here

Before you get excited, let me caution you. Sobriety on roadways is a serious issue. I found it ironic that this was being advertised at a store that sells office products. Moreover, alcohol detection devices are scientific instruments. They need to be treated with care, calibrated often, and operated by those who have been trained to use it. They do not always give a true reading. Whether the breathalyzer was operated correctly and in good working condition at a time a person was arrested is a central issue in any DWI/DUI case in North Carolina. When I was a prosecutor, I spent time at the crime lab being trained on the machine and learned about the process behind them. It was an excellent way to learn about the machine, and more importantly, how it failed.

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Sunday, November 22, 2009

DWI/DUI Cases: A Former Prosecutor's Perspective

The holidays are around the corner; the start of holiday parties and holiday cheer. With this starts a busy period for police departments throughout North Carolina and an increase of  DWI patrols in the Charlotte area. As a former prosecutor from Orange County, California, I had police officers in my office on a daily basis. I prosecuted hundreds of DWI/DUI cases and took dozens to jury trial.  I thought it would be insightful to talk about DWI/DUI cases and a former prosecutor's perspective.

When a driving while impaired/drunk driving trial landed on my desk for trial, the first thing I would do is look at my arresting agency, specifically the police department who arrested the person, like CMPD or Pineville Police Department. Some agencies were simply more effective than others. Then I would look at my police officer- if I was not familiar with him/her, I would ask other prosecutors in the office or contact the Police Department's witness liaison to get some information on the officer. A DWI/DUI case will often succeed or totally fail based upon the police officers testimony. How thorough was the police officer, did he/she conduct the correct Field Sobriety Tests, how long has the officer been doing this and who trained him/her. Decisions to proceed with borderline cases, like a .07 breath/blood result, would often be made after evaluating the police officer, his report, and interviewing him directly. Of course I would evaluate the field sobriety tests, the results of the breath/blood test, driving patterns and objective signs of intoxication, but I would also do more.

If an inventory search was conducted on the car, I wanted to know EVERYTHING that was found in the vehicle. It was a huge advantage when the officer recovered a receipt from the restaurant where the arrestee was the night he/she was arrested. Many times an itemized receipt would show all the alcohol consumed by parties involved that evening. If the arrestee told the police officer where he/she was drinking or the receipt reflected it, I could send an investigator out to the location and interview the waiter/bartender who served the person. Another must, visiting the scene- always a must. You learn a lot about the road, the lighting and location where the person completed their field sobriety test. If it was a case where the police officer never saw the person actually driving, only saw them sitting in the car or near the car, a visit to the scene was incredibly important, especially if the defendant took the stand at trial. How can an attorney effectively cross examine a witness without having an understanding of the location being described. I cross examined many uncomfortable defendants trying to describe a situation that didn't exist- either they were making something up or they were too drunk to remember it correctly. I used both to my advantage.

As a criminal defense attorney now practicing in North Carolina, I approach criminal cases the same way. Effective representation requires this; a person arrested for DWI/DUI in North Carolina faces severe consequences.  I also know how a diligent prosecutor can effectively develop their case.

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Saturday, November 14, 2009

North Carolina Expungement for a Job Seeker

Are you a job seeker in North Carolina? You may need to get a North Carolina Expungement.

There was an interesting article in the Wall Street Journal about the affect of a criminal conviction on a job seeker in the current job market. With the rise of unemployment figures and the economy in midst of recovering from a deep recession, those with a criminal past are finding it harder to get a job. The article quotes a director of a liquor company in Florida; "If I have a guy with four arrests and bad credit versus someone who has never been in trouble in his life, who am I going to hire? It's not rocket science." In Florida, expungements rose 43% from the previous year. With unemployment levels currently over 10%, employers can be picky. Technology and the internet have made a person's criminal past much easier to access than 10 years ago. For a fee of ten dollars, a company can use an internet service to obtain information on a potential employee. The WSJ found that 80% of companies performed background checks in 2006, compared to fewer than 50% in 1998. Even more alarming, I have personally received several phone calls from previous clients who had their criminal case dismissed in Mecklenburg County now unable to rent an apartment in North Carolina after having their lease application rejected. Leasing companies are now running background checks on potential tenants.

An expungement basically erases your criminal past. North Carolina has very strict rules regarding whether a person qualifies for an expungement. Generally speaking, if you were found not guilty or the charges were dismissed, you most likely qualify for an expungement. There are different rules if you were under 18 years of age. The good news is that in North Carolina, once the expungement process is successfully completed, it is completely erased. If you have questions regarding the expungement process in North Carolina, contact the Law Office of Carilyn Ibsen PLLC for help.

Here is the link to the WSJ article: http://online.wsj.com/article/SB125789494126242343.html

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Sunday, November 8, 2009

Arrested for DWI, What about My Miranda Rights?

Most people are familiar with the term Miranda Rights. We have all seen TV series that show someone being arrested and led to the car with the officer saying "You have the right to remain silent, anything you say can and will be used against you." A common question a DWI defense lawyer hears from those arrested for DWI in North Carolina is "I was arrested for DWI, what about my Miranda Rights?"

For Miranda to apply, two conditions must be met. You must be in custody and the police must be asking you a question that it designed to elicit an incriminating response. A person is in custody when a reasonable person no longer feels free to leave. If in handcuffs, you can pretty much assume you are in custody. However, if you have been pulled over and the police start asking you questions about whether you have been drinking, the State will argue that only an investigation is taking place. An investigation? You have been pulled over by a police car with flashing lights and a police officer is asking you to perform field sobriety tests and this is only viewed as an investigation and not designed to convict you of a crime? Seems a bit far fetched, but Courts have held that this is an investigation only.  Police purposely design their DWI/DUI investigations in such a way to ask you all these questions before you are placed in custody. You are under no obligation to answer their questions and help build a case against you. If a police officer continues to ask questions after you are 'in custody', then you are entitled to your Miranda Rights. Custodial status requiring Miranda warnings can be factually triggered in a variety of ways, not just being handcuffed.

Many times experienced defense attorneys successfully have a person's statement to police and the performance on the field sobriety tests excluded from evidence. It is important to have your case reviewed to ensure your Miranda Rights have not been violated. Even if your Miranda Rights were not violated during your DWI/DUI arrest in North Carolina, there are other ways an attorney can exclude answers given to a police officer during the investigation, the performance of field sobriety tests, and breath/blood results. I recently had a case dismissed not because of Miranda violation, but rather lack of probable cause to arrest. More on this later...

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