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Attorney Carilyn Ibsen's Blog

about Criminal Defense in North Carolina and South Carolina

 

Wednesday, March 31, 2010

Your Constitutional Rights- A Must See Video For Everyone

When a criminal defense lawyer speaks to a client about their case, they will probably ask the question:
"what did you tell the police." When I was a  prosecutor, I would often have jurors tell me after trial that they could not have found the person guilty without their statements to the police. For example, some will admit the drugs hidden under the seat in a car belonged to them. Similarly, in a domestic violence case the prosecution will often have an uphill battle if not for the statements to the police that the defendant admitted to hitting their spouse.

Why do people admit so much to police? Some don't realize what their constitutional rights are. Simple Justice wrote an informative blog today about asserting your constitutional rights respectfully to a police officer. It also highlighted a great video that everyone should watch- "10 Rules for Dealing with the Police". Any parent with a child going off to college should have their children watch this. If you go to the Cato Institute, you can watch the video for free. It addresses every situation- being pulled over by police for a traffic stop, police trying to search you, your car, your house, and answers questions about criminal investigations in general. 

I believe some people feel the need to vindicate themselves to police officers. It's like being put back in the principal's office in elementary school. Last Monday I was pulled over by a police officer after leaving the Gaston County Courthouse. The state trooper was a man of few words. He walked up to my window and immediately asked for my license and registration. After he spent time examining my documents (by the way in North Carolina you must sign your car registration card in black ink), he finally told me I cut in front of another vehicle. While I totally disagreed with his version, I found myself engaging in a dialog about the events that occurred. I have practiced criminal law my whole career. I have spoke to hundreds of police officers both on the witness stand, off the witness stand and in social settings. I know my rights. I don't have to say anything. However, even I had trouble keeping my mouth shut. I can't complain about the encounter- the trooper didn't cite me for anything, he told me to be careful, but it reminded me of how upsetting it can be to be accused of anything, especially when you did nothing wrong.

I recommend the video. It's worth your time. It's worth your family's time. 

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Sunday, March 28, 2010

A Charlotte Criminal Attorney's Perspective on Traffic

My criminal law office is in the South Charlotte area. I like it that way- many criminal attorneys in the Charlotte area have their office next door to the courthouse. They prefer that. But I like the fact that my clients can find parking and not have to pay for it. I prefer my rent compared to uptown rent.  Many times my clients never have to see the Mecklenburg or Gaston county courthouse. They prefer a trip to uptown be reserved for a Panther game or a Saturday evening at the Epicenter. They rather a trip to Gaston County be for the Daniel Stowe Botanical Gardens , not the courthouse or my office.

However, occasionally the frustration does set in when I experience the bottleneck of traffic at the I485 and I77.  So my interest was peaked this morning when I saw the article in the Charlotte Observer, Making a case for urban road money, where the Observer reported that the DOT spent an average $3,756 for each North Carolinian during the past 10 years, but $2,967 per person in the most populous county, Mecklenburg. Yet, the county with the fewest people, Tyrrell, got the most road money. The article is worth a read. It is a hot topic- by 9:30AM online comments to the article were increasing.

You can't help but question where all the money goes. As a practicing criminal defense lawyer in the Charlotte area, I know police are still issuing traffic tickets, DUI/DWI arrests still occur on a daily basis, and I see the daily line of people paying their criminal fines at the courthouse. Did you know the minimum fine on a traffic ticket is $130! I'll keep doing my part and keep my clients out of that line. Meanwhile we have traffic bottlenecks, potholes and the Charlotte Observer to stir up the controversy.

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Thursday, March 25, 2010

Larceny? Possession Stolen Goods? An Armored Truck & The $100,000 Question

A criminal defense attorney will often get asked "Is it illegal if a person...". My answer to this question usually goes something like this "If you feel the need to ask a criminal lawyer, you probably shouldn't do it".

Here is the hypothetical- you are driving down the street and suddenly bags of money are flying across the road- yours to keep? Finders Keepers? Well, back to my original question, may not necessarily be a good idea. MSNBC reported today that $100,000 went missing today after a bag of money fell from an armored vehicle in Columbus, Ohio. 911 callers told dispatchers that pandemonium broke out with people grabbing $20 bills. $12,000 has been returned but the rest is still unaccounted for.

Is this a crime? Larceny? Possession of Stolen Goods? Police are investigating the matter and told reporters that finding a $5 bill on the street is much different than finding marked bills laying in the middle of an intersection with bank bags around it. They also stated those who do not return the money could face grand theft charges. A similar charge to grand theft in North Carolina is felonious larceny or possession of stolen goods.

When asked how $100,000 fell out of an armored truck- the police stated that was the $100,000 question.

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Sunday, March 14, 2010

Gaston County DWI/DUI Checkpoints- A St. Patrick's Day Celebration

For those of you who celebrate the Irish and are looking forward to St Patrick's Day- celebrate with caution in Mecklenburg and Gaston County. According to the Charlotte Observer, the Gaston County Police Department is in the middle of an eight day crackdown of DWI/DUI drivers and unlicensed drivers in Gaston County. The checkpoints started Friday night and will continue through the week.

As a former prosecutor and now criminal defense attorney in North Carolina, I can unequivocally state that having a designated driver or a cab company's phone number programmed into your cell phone is the best option. Do not depend on the luck of the Irish to get you home this week. The cab fare of $50 may seem a bit steep at the time, but the costs of a DWI are much higher. If you go the designated driver route, some bars such as Freeman's Pub on main street in Gastonia are offering free appetizers and non alcoholic drinks to designated drivers.

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Tuesday, March 9, 2010

DWI/DUI Breath Test- Dismissals in DC

The Washington D.C. Police Department is trying to determine what went wrong with the police department's breath alcohol machines. The department uses the Intoxilyzer 5000 EN machine. The police department has called for an investigation into the matter. Meanwhile, attorneys representing those accused of DWI/DUI are finding their clients cases reduced or dismissed. According to an article in the Washington Examiner, the city has "rebuffed" several judges requests for an explanation after DWI cases dating back to October 2008 were dismissed or reduced.

In North Carolina, a person should be given the option of a breath or blood test when arrested for a DWI/DUI. Many people assume that a breathalyzer machine is just like any other machine- turn it on and it works. This is not always the case. Although widely used by police departments, they can produce an inaccurate reading. A criminal defense attorney can contest the accuracy of the breath test in a DWI case. Radio frequency interference, breath technician operator errors, improper calibration, and improper officer training are common examples that can produce an inaccurate reading. Mecklenburg County Police Department primarily utilizes the Intoximeter EC/IR II for breath tests in DUI/DWI cases.

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Friday, March 5, 2010

The Crime Not Committed Yet Punished

I don't think many criminal defense attorneys would disagree with the statement that people who commit crimes should be held accountable for their actions. Prosecutors, criminal defense lawyers and judges will debate over the correct way to hold people accountable for their wrongdoings. However, what about the situation when someone is held accountable for something they didn't do or the crime not committed yet punished?

While there was a recent editorial in the Charlotte Observer about Greg Taylor being declared innocent after spending 17 years in prison for a crime he did not commit, there are other stories on a smaller scale where people convicted of DWI/DUI, drug offenses or other misdemeanors in district court had convictions reversed on appeal.

Simple Justice had another great post addressing this issue. Toyota has been in the news daily; brake pedals malfunctioning, drivers not responsible for car accidents with some people being tragically killed. The post addressed the New York case of Koua Fong Lee;  Mr. Lee was convicted of vehicular homicide after his Toyota Camry hit a car in 2006 that resulted in the death of 2 people. Mr. Lee was sentenced to 8 years. During the criminal trial, he claimed that he kept pumping the brakes as he exited the Interstate but the brakes failed to work. I imagine the case will now be reopened, but a defendant on appeal has an uphill battle.

After a person is convicted, they are sentenced. Many expect the defendant to take responsibility for his actions and ask the court for mercy at the time of sentencing. But cases like Greg Taylor and Koua Lee present a terrible scenario for any person. The Simple Justice Blog make an interesting point:
Lee's crime was being involved in an accident where people died. When someone dies, people see a crime and demand a criminal. Separate the anger at the outcome from the conduct involved, as we are now able to do in light of the Toyota defense, and this doesn't appear to have been a crime at all. In fact, the allegations clearly lead to the conclusion that it was a tragic accident. Lee was in his 1996 Toyota with his pregnant wife, father, daughter, brother and niece. Was his care for others so demented that he put them all at risk by ramming into other cars? It sounds ridiculous now. Today, a couple years later and after a wave of Toyota recalls, the conviction looks horrible wrong. 
 Any skilled criminal defense attorney must prepare not only their criminal case, but they must also prepare for sentencing. The client must be prepared. However, these two types of cases represent the unthinkable situation- the crime not committed yet punished.


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