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Tuesday, April 30, 2013

A Warrant for a DWI?

It's rare when the US Supreme Court makes a bright line legal test for anything and they continued this with the holding in Missouri v.Mcneely. However, they certainly did not give police a green light to force blood from those arrested for DWI without obtaining a warrant. Instead they used the old standby "totality of the circumstances" test and held that police officers should obtain a warrant if it could be reasonably obtained by a judicial official.

Any criminal defense lawyer in Mecklenburg County is very familiar with totality  of the circumstances test. It is a staple item in Fourth Amendment procedure. Defense attorneys and District Attorney's will now essentially be forced to 'Monday morning quarterback' the police officers decisions not to get a warrant based on the totality of the circumstances of each case.

Ten years ago, I believe prosecutors would be on the winning side of this argument that obtaining a warrant was not feasible. When I was Deputy District Attorney, I remember Narcotic Detectives telling me how they would call  the resident judge at home in the middle of the night to get warrants signed. In a DWI case, the exigency of the alcohol level  dissipating in a person arrested would not justify making a trip across town to get a warrant approved.  That would simply take too much time.

Technology has improved police procedure tremendously. Or, at least it should.

Now in world of preprinted forms, magistrates stationed at jail facility 24 hours a day and general accessibility of everyone, the prosecutor's argument that "it would of taken too much time to get a warrant" argument will be an uphill battle in a courtroom. 

Mecklenburg County Criminal Attorney Updates Provided By The Law Office of Carilyn Ibsen PLLC
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Monday, April 1, 2013

Russell Brand- Give It Up

Spend a day in District or Superior Criminal Court in Mecklenburg County and you will observe hundreds of  drug and drug related cases. You have actual drug charges- possession of drug paraphernalia, possession of cocaine or possession of marijuana to name a few.  Prescription drug cases are also increasing in the court system. The Department of Justice reported a 400% increase in prescription drug abuse over a five year period. Drugs are everywhere in criminal courts. Drug courts have proved to be a successful alternative.

Addiction is cruel disease. When I started as a Deputy District Attorney, I would handle drug cases on a daily basis. Whether it was the straight drug charge or someone trying to pawn some stolen goods to pay for their drug habit, drugs affected so many cases. It wasn't until I sat in Drug Court for several months did I begin to understand the choking power of addiction on a person. The threat of going to jail does not usually deter an addict. Fear of jail does not cure addiction. Fear can feed addiction. 

Russell Brand is an addict. He recently wrote a piece for his blog called Give It Up that demonstrated the power of addiction. Here is an excerpt: 
I cannot accurately convey to you the efficiency of heroin in neutralizing pain. It transforms a tight, white fist into a gentle, brown wave...
The mentality and behavior of drug addicts and alcoholics is wholly irrational until you understand that they are completely powerless over their addiction and unless they have structured help, they have no help. 
 Brand has every amenity available to him to assist the urge to use. Yet his story demonstrates the demon of addiction he fights daily. He accurately describes how unappealing and burdensome a drug addict is: 
It is difficult to feel sympathy for these people. It is difficult to regard some bawdy drunk and see them as sick and powerless. It is difficult to suffer the selfishness of a drug addict who will lie to you and steal from you and forgive them and offer them help. Can there be any other disease that renders its victims so unappealing?
The purpose of this post is not to advocate rehabilitation over jail.  I have written on that before. The purpose of this post is simply to highlight how powerful addiction is. If it was only as simple as putting a person in jail so they can "dry out." Does an addict really every dry out? I wonder how Russell Brand would answer that questions.

Click here to read Give it UP.

Mecklenburg Criminal Law Lawyer Updates Provided By The Law Office of Carilyn Ibsen 


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