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about Criminal Defense in North Carolina and South Carolina

 

Saturday, May 22, 2010

DWI/DUI Dismissed by Judge in Mecklenburg County

People often ask me the question "How do I get my DWI/DUI dismissed?". That is a very complicated question that has no straightforward answer. However, there are different avenues a defense attorney will use to get to that end. Sometimes, the district attorney will have proof problems with their case- they didn't have all the witnesses, there were problems with the breath or blood test, the officer did not have probable cause to arrest, the DWI checkpoint in Mecklenburg County did not satisfy constitutional standards. I could go on for a long time about problems within a DUI/DWI investigation. The important point is that a defense attorney must have a strategy to get a DWI dismissed, they must know the correct motions, they must analyze the evidence, object to certain evidence and testimony, and they must be ready to go to trial. The District Attorney does not regularly dismiss DWI's. They would rather take them to trial and let a judge decide.

I had a driving while impaired case in Mecklenburg County go to trial this week. I won that case. The judge granted my motion to dismiss at the conclusion of the State's case. I would love to say that it was my incredible trial skills that won that case- it wasn't. I simply prepared my case, made objections and held the State to their burden of proving their case beyond a reasonable doubt.

My client's breath test was a .23, almost triple the legal limit. I filed the correct motion putting the State on notice that they would need to bring the witness who administered the breath test to court to testify. If this motion is not filed, the State does not have to bring that witness to testify at trial. Moreover, if this motion is not filed in a timely manner, the defense has waived the right to object to the admission of the breath or blood test. At trial, the State did not present the officer who gave the breath test. I opposed the State's motion to continue. The judge denied the State's motion to continue. They had to take that case to trial that day or dismiss.

By the way, if any defense attorney guarantees that they can get your case dismissed, be very weary. That is unethical. Not every DWI case is dismissed, not every case is won at trial. Defense attorneys will lose cases. However, win or lose, every good defense lawyer should be able to tell themselves that they have done everything they could for their client at the conclusion of their case.

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Sunday, May 16, 2010

Miranda Rights- Ordinary Citizen or Enemy Combatant

I wrote a post a few months ago about Miranda Rights, when they apply and how they come into play during a driving while intoxicated (DWI) investigation. Miranda has been in the news lately with elected government officials calling for a need to modernize the "public safety" exception to Miranda warnings. The public safety exception allows police to ask questions to a person in custody that would incriminate himself. While the US Constitution is clear that a person has a right to remain silent and not incriminate himself, the US Supreme Court carved out an exception to this when the rights of public safety is 'paramount'. For an excellent summary of the public safety safety exception and how North Carolina courts have interpreted it, see Jeff Welty's blog post on Miranda and Public Safety exception.

The Charlotte Observer published an editorial yesterday authored by Charles Krauthammer titled "Modernize Miranda? Yes!. He agreed with Attorney General Eric Holder that the government should be allowed to question terror suspects about all immediate dangers, but also expand the public safety exception to allow full interrogation of the entire event and any other events being planned. He continued on and stated the "liberals' problem with such interrogation begins with their insistence that terrorists be treated as ordinary criminals rather than enemy combatants." I was talking to a few people about this editorial. Everyone agreed that terrorism is a real threat to our nation. Some agreed that terrorists should not be treated  as ordinary criminals. I'm not sure what an ordinary criminal is... 

However if this goes forward, it will apply to everything. It will apply when you are pulled over for a traffic ticket, investigated for a DWI, stopped in Mecklenburg County at a DWI checkpoint, arrested for a drug offense. This will apply in any investigation by a police officer. While many question if terrorists should be treated like ordinary citizens,  others question whether ordinary citizens will be treated like enemy combatants on a daily basis if this goes forward. 


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Wednesday, May 5, 2010

United States Supreme Court Closes Its Doors

Unfortunately, acts of terrorism is in the news again. The recent attempted car bombing in New York City highlights and further ignites the discussion concerning how to act against and prevent acts of terrorism in our country. Confronting and defeating terrorist acts while maintaining the democratic principals our country was built upon will be a constant challenge for this country. As the Simple Justice blog highlighted, symbols of our democracy will sometimes be sacrificed to keep citizens safe. This week the United States Supreme Court announced that it will no longer permit entry through the two front doors at the top of the building's steps. Rather, the general public will have to enter through two side doors on the ground floor. The symbolism of walking up the inspiring forty four marble steps and entering the building under the words "Equal Justice Under Law" represented an ideal to citizens that is difficult to compare against entering on a side door on the ground floor.

Supreme Court Justice Breyer and Ginsburg issued a separate statement calling the new procedure unfortunate and unjustified:
To my knowledge, and I have spoken to numerous jurists and architects worldwide, no other Supreme Court in the world- including those, such as Israels's, that face security concerns equal to or greater than ours- has closed its main entrance to the public. And the main entrances to numerous other prominent public buildings in America remain open. I thus remain hopeful that, sometime in the future, technological advances, a Congressional appropriation, or the dissipation of the current security risks will enable us to restore the Supreme Court's main entrance as a symbol of dignified openness and meaningful access to equal justice under law. 
Whether you agree or disagree with the decision, unfortunately these are the times that we live in. It is sad for those who have never walked up the steps to the highest court of the land in the pursuit of equal justice.

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