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Sunday, January 31, 2010

Police Questioning- Is That A Skink In Your Pants?

Confused over what you can and cannot bring on your next plane trip? This news goes a bit beyond the 4 ounce plastic bag rule requirements when you go through airport security. MSNBC reported the story about a German man who was caught by officials when he attempted to smuggle 44 small lizards, (hidden in his underwear, while boarding an international flight in New Zealand. Somehow New Zealand wildlife officials managed to find 44 geckos and skinks (a lizard with no neck and small legs) in a handmade sewn package concealed in his underwear. By the way, lizards and skinks do bite....

Calling the case the most "serious case of its kind detected in New Zealand for a decade or more", Department of Conservation prosecutor sought a deterrent sentence. The judge sentenced the defendant to 14 weeks in jail and a $3450 fine.

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Saturday, January 30, 2010

Marijuana Possession Case..Up in Smoke?

I was in court recently waiting for my case to be heard and watched an interesting misdemeanor trial. It was a marijuana possession case where a respected Mecklenburg County defense attorney was contesting the fact that a substance found in a vehicle was actually marijuana. In Mecklenburg County, a substance seized by the police can take a year to be analyzed by the crime lab. There are far too many cases to test every substance seized by the police. In this case, the state prosecutor was relying on the officers training and experience to testify that the substance seized was actually marijuana. Is that enough? A Marijuana Possession Case..Up in Smoke?

Under the evidence code, all evidence introduced at trial must meet foundational requirements. An officer will testify in a marijuana possession case that he/she found a substance believed to be marijuana. However, before this statement is admissible, the witness must convince the court that they have enough experience to testify that the substance is actually marijuana. Recently, there have been a series of cases handed down by the appellate courts finding that an officer's testimony is not enough to prove a substance is actually an illegal substance- Alyson Grine of the UNC school of government does a great job with this summary.

The defendant in the above case was found not guilty. The prosecutions case was also weakened by the fact that the marijuana was found in the backseat of the car and the defendant was the driver.

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Monday, January 25, 2010

Driving Impaired In North Carolina- Police Need to Check the Right Box!

The North Carolina Court of Appeals recently issued a case, Lee v. Gore, that affects driving impaired/ driving under the influence (DWI/DUI) cases in North Carolina. Simply stated, when a person is issued a North Carolina Drivers License, the person essentially agrees to submit to a breath or blood test if a police officer believes you are impaired. If you refuse, your license can be automatically suspended by the NC DMV for 12 months. However, the police officer or the person who administered the blood/breath test must correctly fill out an affidavit stating that the implied consent procedures were correctly administered. In a refusal case, one in which the police alleges that the person refused to supply a sample, this affidavit contains additional information. In the Lee v. Gore case, the police officer failed to check the box that stated the driver willfully refused to submit to a chemical analysis. The NC Court of Appeals ruled that the language of the law required the affidavit to be filled out correctly and, in Lee v. Gore, the North Carolina DMV had no basis to revoke the persons drivers license for 12 months when the form was not filled out correctly.

The UNC School of Government wrote an interesting post on this today. They have a daily blog on legal issues that many North Carolina criminal defense attorneys follow. It also provides another example on how technical driving while impaired cases are in North Carolina. After arrested for a DUI, many feel there is no chance of success, especially in cases where there is a high blood alcohol reading. However, a good DWI lawyer in North Carolina looks at every issue- the complex, and in some cases, as straight forward as failure to check a box. So, if Driving Impaired in North Carolina, Police need to check the Right Box!

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Friday, January 15, 2010

CMPD DWI Checkpoints

Charlotte Mecklenburg Police were out in force last night. According to the Charlotte Observer, CMPD set up a DWI Checkpoint at the 600 Block of East 7th Street near North McDowell Street. After issuing 40 charges, including 12 DWI arrests, CMPD closed up shop.

DWI Checkpoints cannot be set up on a whim. They must adhere to strict constitutional standards set forth by not only the North Carolina appellate courts, but also the US Supreme Court. Interestingly enough, DWI checkpoints have different guidelines than a simple general license checkpoint. If you were arrested as a result of a DWI checkpoint or any checkpoint set up by a police department, it is important that you have an attorney review your case. I had a case dismissed based upon a lack of probable cause to arrest by CMPD resulting from my client being stopped at a license checkpoint.

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Sunday, January 10, 2010

Jail Time for Prior DWI/DUI Conviction?

Being arrested for driving while impaired (DUI/DWI) in North Carolina can have a drastic impact on a person; driver's license suspension, car insurance increase, court ordered alcohol programs, stiff penalties and large fines. Throughout North Carolina, including Gaston and Mecklenburg Counties, a person arrested for a DUI/DWI who has a prior conviction, will most likely face jail time if convicted. It is important to know that there can be options to those who face this possibility. I find people in this situation want to know the best case scenario (a dismissal or a finding of not guilty) and the worse case scenario (a conviction). Many clients will ask if they are convicted, and they have a prior driving while impaired conviction, are they going to Mecklenburg or Gaston County Jail?

As a special condition of probation, North Carolina General Statute 20-179 (k1) gives a judge the discretion to order that any term of imprisonment (jail time) be served in an impatient facility license by the state that treats alcoholism or substance abuse. A simple example would be if a person was sentenced to 60 days in jail, that 60 days could be served in a rehab facility in lieu of jail. Another option in Mecklenburg County is DWI Court. At sentencing, a defendant requests a referral to the DWI court. If accepted, probation determines if the judge's jail sentence is imposed. The person participates in a very intense program, supervised by both probation and the courts, where addiction issues are addressed. In many cases, if the defendant successfully completes the program, the jail time is not imposed.

It is good to see the legislature opening the door to treatment instead of automatic incarceration. Alcohol is a triggering factor in many circumstances. The U.S. Department of Justice Report on Alcohol and Crime found that alcohol abuse was a factor in 40 percent of violent crimes committed. A quick summary of these statistics show that among the 5.3 million convicted persons in 1996, almost 36% (2 million) were estimated to have been drinking at the time of the offense. Comparably, the National Drug Court Institute reports that adult drug courts in California reported that re-arrest rates over a 4 year period were 29 percent for drug court clients and 17 percent for drug court graduates. For those who did not participate in a drug court program, 41 percent were re-arrested. As a former prosecutor from Orange County, California,  I was actively involved with both the Drug and DUI/DWI Courts. Having observed many success stories, it is good to see the legislature in North Carolina responding by giving judges the discretion to permit in-patient rehab in lieu of jail. It is also welcome sight to see Drug and DWI/DUI Courts operating in Mecklenburg County.

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Wednesday, January 6, 2010

A Sicilian Man's New Year's Resolution

Too much time with the family this past Christmas and New Year?  I saw this article online at msnbc.com and thought I would start the 2010 blog on a lighter note. Are you familiar with the game 'would you rather'? So, would you rather spend New Years Eve with relatives or spend a night in jail? An Italian man chose the latter.

When faced with the task of spending yet another night with family on New Years Eve, this 35 year old man walked himself into the local police department and asked to be arrested, because he did not want to spend New Years Eve with family. The police told him they could not arrest him because they had no reason to believe he had committed a crime. The man then left the police department and immediately went next door to a cigarette shop. He allegedly threatened the store owner with a box cutter while grabbing some food. He then waited for the police to arrive and was arrested.

While family can be challenging at times, this conduct can rise to the legal definition of a robbery in North Carolina with severe punishment and consequences.  However, it does reach a new level of what people are willing to do to avoid seeing the in-laws...

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