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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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posted by Carilyn Ibsen at


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