tag:blogger.com,1999:blog-387526028596795532024-02-07T14:03:24.224-05:00Attorney Carilyn Ibsen's Blogabout Criminal Defense in North Carolina and South CarolinaCarilyn Ibsenhttp://www.blogger.com/profile/05609984888379211315noreply@blogger.comBlogger179125tag:blogger.com,1999:blog-38752602859679553.post-72516763015484543612016-12-14T09:49:00.001-05:002016-12-14T09:49:43.245-05:00The Motion for Appropriate Relief<a href="http://blog.harlandclarkedigital.com/wp-content/uploads/2013/04/oops.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" src="http://blog.harlandclarkedigital.com/wp-content/uploads/2013/04/oops.jpg" height="132" width="200" /></a>Unrepresented by counsel- a common phrase heard in courtrooms every day. This occurs when a person waives their constitutional right to an attorney and elect to represent themselves in a criminal proceeding.<br />
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I saw it this week in Mecklenburg County District Court. The judge called a young man up and asked what he wanted to do with his case. The young man said he wanted to plead not guilty and represented himself at trial. An hour later this young man was found guilty and now has a misdemeanor assault conviction on his record.<br />
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Attorneys that regularly take cases to jury trial are also well aware of the saying "You can't unring the bell". It is often heard in trial courtrooms outside the presence of the jury. It is an analogy that refers to the difficulty of forgetting information once it has been heard. When a jury hears inadmissible evidence in a trial, sometimes the damage is so prejudicial, a mistrial must be declared.<br />
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Contrary to the saying, there are times a North Carolina criminal attorney can unring a bell.<br />
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Depending on the facts of the case, an attorney can file a Motion for Appropriate Relief (MAR). It is a request to reopen the case based upon the fact that the defendant did not knowingly, voluntarily, and intelligently enter a guilty plea or waive the right to be unrepresented by counsel.<br />
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It often occurs in traffic cases. A person will come to court and unknowingly admit to a speeding violation that results in a license suspension. A letter from the North Carolina Department of Motor Vehicles will arrive approximately one month later stating their license is being suspended. The person calls my office in a panic.<br />
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Time to unring the bell by filing a Motion for Appropriate Relief.<br />
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Depending on the facts of the case and the individual's driving history, this can be a successful tool to setting aside the conviction and the suspension.<br />
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MAR's are also filed in cases where a person pays a citation online, unaware of the consequences. A father did this with his son's alcohol possession case which you can read about <a href="http://blog.ibsenlaw.com/2016/11/your-frequently-asked-questions-answered.html">here</a>. We successfully file a MAR in that case and the case was ultimately dismissed.<br />
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If you have admitted to a traffic violation, a criminal misdemeanor such as larceny, shoplifting or unlawful concealment, contact an attorney to see if they can help you with a Motion for Appropriate Relief.<br />
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Most importantly, if you are facing a traffic violation or a criminal charge, talk to an attorney before you go to court. Don't find yourself sitting at counsel table in a courtroom by yourself.<br />
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<i>Criminal Law Updates Provided By The Law Office of Carilyn Ibsen PLLC (888) 543-2427</i><br />
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<br />Carilyn Ibsenhttp://www.blogger.com/profile/05609984888379211315noreply@blogger.com0tag:blogger.com,1999:blog-38752602859679553.post-3265307465782337722016-11-10T19:17:00.000-05:002016-11-10T19:17:17.219-05:00Your Frequently Asked Questions Answered<div class="separator" style="clear: both; text-align: center;">
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A longtime friend recently received their jury summons in the mailbox. Not looking forward to completing their civic duty, they asked "Can you get me out of jury duty?". This question caused me put together a list of the some of the frequently asked questions I receive as a criminal defense attorney in Charlotte. On that note:<br />
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<b>1. Can you get me out of jury duty? </b><br />
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No. Everyone must complete their service. Depending on your county and circumstances, an extension can sometimes be requested but that must be handled through juror services at the courthouse. I can advise you on lunch places, where to park and let you know that Mecklenburg County has one of the nicer juror waiting rooms, but I cannot get you out of service. Try to enjoy it and the opportunity to see the system at work.<br />
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<b>2. If the officer doesn't show up on my first court date, does my ticket get dismissed? </b><br />
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No. In most North Carolina counties, including Mecklenburg, Gaston and Union County, your first court date is an administrative court date. An officer is not subpoenaed to come to court on this date. If the case is not settled that day, it can be set for trial. The case will then be continued to one of the officer's two monthly court dates and the officer will be subpoenaed.<br />
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If the officer does not show on that date, the District Attorney will often be granted one additional continuance. However, the officer is usually present as they have numerous cases set that day, including DWI's, theft cases and assault cases. A judge will also find good cause for continuance if the officer has required training, approved vacation or military leave.<br />
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<b>3. My speeding ticket states I have a mandatory appearance. Do I have to appear in court? </b><br />
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Yes, unless you have an <a href="http://ibsenlaw.com/" target="_blank">attorney </a>appear for you by waiver of appearance. Attorneys regularly appear for clients in Mecklenburg County District Court for <a href="http://ibsenlaw.com/traffic_tickets.html" target="_blank">traffic tickets</a>, theft cases and other misdemeanor offenses. Courtroom 1130 can have over 1000 cases set in one day. Talk to an attorney before you go to court. An attorney can often handle the case for you. If you live out of state, the cost will usually be less than the cost of an airline ticket.<br />
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<b>4. Can I get my traffic ticket dismissed because the radar wasn't working correctly? </b><br />
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Hundreds of traffic tickets are issued every day in North Carolina. Most state troopers and police officers do not rely exclusively on radar. Case law in North Carolina allows officers to testify to a visual speed based on their training and experience. Surprisingly, case law also permits a lay person to testify to speed estimates. Radar is not the only tool used by law enforcement.<br />
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<b>5. My name is spelled wrong on my criminal or traffic citation. Can it get thrown out based on wrong spelling?</b><br />
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No. The District Attorney can request to amend to conform the pleadings at any time in the proceedings, including during trial. In most situations, this is permitted.<br />
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<b>6. Can I pay a fine for my traffic ticket online so I don't have to hire an attorney or go to court? </b><br />
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I always recommend consulting with an attorney before paying fines online. There can be adverse and unforeseen consequences.<br />
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Some traffic violations can be paid online. I do not recommend this as they often have insurance implications. Many are surprised to hear that a stop sign violation is 3 points in North Carolina. Many times an attorney can negotiate a result that does not cause a points or insurance premium increase.<br />
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Another example of paying a fine online involves <a href="http://ibsenlaw.com/underage_drinking.html" target="_blank">underage drinking</a>. I had a client charged with underage drinking. The parent went online and paid court costs. The case was closed. However, the parent was unaware that by paying the fine, the child admitted to the offense, had a criminal conviction, and DMV subsequently mailed notice of a yearlong license revocation.<br />
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The family contacted me for help. I was able to file a motion for appropriate relief (MAR), had the case reopened and the conviction set aside. The client committed a class for dismissal of the charge. The charge was later expunged and the case is sealed.<br />
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More commonly asked question to come later on Miranda rights and fingerprint evidence.<br />
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<i>Traffic and Criminal Law Updates Provided by the Law Office of Carilyn Ibsen (888)543-2427</i><br />
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<br />Carilyn Ibsenhttp://www.blogger.com/profile/05609984888379211315noreply@blogger.com0Charlotte, NC 28277, USA35.0535496 -80.82116959999996234.949559099999995 -80.98253109999996 35.1575401 -80.659808099999964tag:blogger.com,1999:blog-38752602859679553.post-9663717475137472432016-10-31T05:22:00.000-04:002016-10-31T05:22:40.783-04:00Search Warrants & Cell Phones<br />
<a href="http://www.trbimg.com/img-53adc47e/turbine/hc-supreme-court-cell-phone-privacy-20140627-001/1755/1755x1242" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" src="http://www.trbimg.com/img-53adc47e/turbine/hc-supreme-court-cell-phone-privacy-20140627-001/1755/1755x1242" height="225" width="320" /></a>According to a Reuters <a href="http://www.reuters.com/article/us-cellphones-survey-idUSTRE58323K20090904" target="_blank">survey</a>, most people cannot live without their cell phone, and if given a choice, would rather lose their wallet than their cell phone. Verizon Wireless recently conducted a lighthearted <a href="https://www.verizonwireless.com/dam/news/images/2016/03/KRC%20Research%20-%20Verizon%20EPP%20Topline%20Report%20-%20FINAL%20Public.pdf" target="_blank">'would you rather' survey'</a> to determine how attached people are to their cell phone. Four percent said they would rather lose their hair than their cell phone and nine percent said they would rather lose vacation days than their phone.<br />
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The importance of our cell phones has become paramount in today's society. Our phones contain more than a detailed snapshot of our lives with all the photos, videos, emails and text messages they hold.<br />
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Police have found them equally valuable in criminal investigations. As a result, appellate courts across the country are issuing opinions on this frequently litigated issue in courtrooms today- do the police need a search warrant to look at your cell phone. <br />
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The Fourth Amendment prohibits the unreasonable search and seizure of a person and their property absent probable cause or a search warrant. A person's cell phone squarely falls within the parameter of the Fourth Amendment. Most law enforcement routinely seek out a warrant to search a cell phone involved in their criminal investigation. However, the situation becomes more complicated for an officer when a crime occurs while they are on duty. Once the officer believes the suspect has committed a crime, does that provide probable cause to search the person's cell phone for evidence of the crime?<br />
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The Massachusetts Supreme Court recently addressed this issue. <a href="http://masscases.com/cases/sjc/475/475mass583.html" target="_blank">Commonwealth v. Onyx</a> found that a 'nexus' must exist between the crime and the cell phone to justify the search. In the Onyx case, the Court found probable cause did not exist and found the search violated the Fourth Amendment;<br />
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<span style="font-family: inherit;">Here, prior to seizing the defendant's cellular telephone, police had received information that the robbery and homicide under investigation had been committed by several people, that the defendant likely was one of those people, and that he owned a cellular telephone. They also knew from experience that coventurers often use cellular telephones to communicate with each other, and that these devices may contain evidence of such communications. According to their own statements, however, the detectives here did not have any "information that [a] cell phone was used in the crime under investigation," nor did they claim that there existed a particular piece of evidence likely to be found on such a device. In essence, then, their decision to seize the defendant's cellular telephone was made because (a) they had reason to believe that the defendant had participated with others in the commission of a robbery-homicide and (b) their training and experience in cases involving multiple defendants suggested that the device in question was likely to contain evidence relevant to those offenses.</span></div>
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<span style="font-family: inherit;">This, without more, does not satisfy the nexus requirement. "Information establishing that a person [may be] guilty of a crime does not necessarily constitute probable cause to search" or seize the person's cellular telephone, even where the police </span>believe<span style="font-family: inherit;">, based on their training and experience in similar cases, that the device is likely to contain relevant evidence. Commonwealth v. Pina, </span><a href="http://masscases.com/cases/sjc/453/453mass438.html" name="cite_453mass438" style="box-sizing: border-box; font-family: inherit;">453 Mass. 438</a><span style="font-family: inherit;" target="_blank"> , 441 (2009). Rather, even where there is probable cause to suspect the defendant of a crime, police may not seize or search his or her cellular telephone to look for evidence unless they have information establishing the existence of </span>particular<span style="font-family: inherit;"> evidence likely to be found there.</span></div>
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Most are not involved in complicated fact scenarios such as the robbery/homicide case above. A more common scenario asked by clients is whether an officer can look at a cell phone when issuing a traffic or speeding ticket. Some have asked if a police officer can look at their cell phone for evidence of a drinking pattern after a DWI arrest.<br />
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Generally speaking, most searches of a cell phone will require a warrant. However, if an officer asks you for permission to look at your phone and you <a href="http://blog.ibsenlaw.com/search/label/police-search" target="_blank">consent</a>, you have likely waived Fourth Amendment protection. Consent is a topic for another day...<br />
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Meanwhile, criminal courtrooms continue to litigate the definition of nexus, probable cause and the overall right to privacy. And cell phones will continue to be more important to some than their vacation days....<br />
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<i>Charlotte Criminal Attorney Updates Provided by The Law Office of Carilyn Ibsen PLLC (888)543-2427</i><br />
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<br />Carilyn Ibsenhttp://www.blogger.com/profile/05609984888379211315noreply@blogger.com0Charlotte, NC 28277, USA35.0535496 -80.82116959999996234.949559099999995 -80.98253109999996 35.1575401 -80.659808099999964tag:blogger.com,1999:blog-38752602859679553.post-28062326040466195542016-10-26T13:15:00.000-04:002016-10-26T13:15:09.497-04:00Teens & Traffic Tickets<div class="separator" style="clear: both; text-align: center;">
<a href="http://i0.wp.com/nchomeschoolinfo.com/wp-content/uploads/2015/09/driver-license-application_zy-gcswu.jpg?resize=570%2C350" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" src="http://i0.wp.com/nchomeschoolinfo.com/wp-content/uploads/2015/09/driver-license-application_zy-gcswu.jpg?resize=570%2C350" height="196" width="320" /></a></div>
Last week was National Teen Driver Safety week, a week designated to remind us what we already know- the dangers of teen driving. I have represented many recently licensed teenagers who were involved in crashes, issued speeding tickets or cited with violating restricted license provisions.<br />
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It is important to understand the graduated license requirements in North Carolina. Shea Denning recently did an <a href="http://nccriminallaw.sog.unc.edu/does-graduated-licensing-make-teens-safer-drivers-or-just-postpone-the-risk/" target="_blank">excellent summary</a> in the NC Government blog. While your teenage driver may not remember their algebraic formula for the SAT, most teenage drivers I speak to can tell you exactly when, where and what time they can drive when they turn 16. The issue becomes whether they abide by the requirements. Many times young drivers were not engaging in reckless behavior when cited. Often they were only driving home from a babysitting job or a person's house. As a defense attorney handling these cases, it is important to separate these cases from the cases where reckless and careless behavior was engaged in.<br />
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Many parents ask if they should immediately enroll their teen in <a href="http://blog.ibsenlaw.com/search/label/traffic%20school" target="_blank">traffic school</a> after receiving a <a href="http://ibsenlaw.com/traffic_tickets.html" target="_blank">traffic ticket </a>or other traffic violation. I am often asked about <a href="https://putonthebrakes.org/home" target="_blank">Brakes </a>traffic school in Mecklenburg County. Talk to an attorney first. Each case is different. As an attorney who handles traffic cases, I want to see the teen's driving record, speak to the driver, know how many family members are on the insurance policy and understand the circumstances around the case. Often overlooked is the teens performance in school. This is very helpful when negotiating a case.<br />
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Putting your teen behind the wheel likely ranks in the top three most anxious moments for parents. If the teen is then cited with a traffic ticket, it becomes extremely stressful for families. As an attorney who works with teen drivers and parents regularly in North Carolina, there is often avenues that can be pursued which would prevent a license revocation or insurance increase. Talk to an attorney before going to court.<br />
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<i>Traffic and Criminal Law Updates Provided by the Law Office of Carilyn Ibsen PLLC (888)543-2427</i><br />
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<br />Carilyn Ibsenhttp://www.blogger.com/profile/05609984888379211315noreply@blogger.com0Charlotte, NC 28205, USA35.2263714 -80.79901849999998835.1225914 -80.960379999999986 35.3301514 -80.63765699999999tag:blogger.com,1999:blog-38752602859679553.post-10918906386009320962016-10-20T18:49:00.002-04:002016-10-20T18:49:57.713-04:00DWI on a Golf Cart? As the Charlotte area grows and planned communities suddenly appear next to small two lane roads, so do the golf courses. However, many homeowners are investing in golf carts even when they don't play golf. Golf carts now appear at school bus stops, Harris Teeter parking lots and often times outnumber vehicles in retirement communities such as Sun City in Indian Land, SC.<br />
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<a href="https://guardianinterlock.com/wp-content/uploads/2014/06/no-golf-cart-drinking.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" src="https://guardianinterlock.com/wp-content/uploads/2014/06/no-golf-cart-drinking.jpg" /></a>However, drive with caution. In North Carolina, you can be arrested and charged with <a href="http://www.ibsenlaw.com/dwi-dui.html" target="_blank">driving while impaired</a> when operating a golf cart. If you are driving a cart on a public roadway, you are held to the same standards as if you were driving a vehicle. Surprising to many, there have even been impairment cases on bikes, lawnmowers and horses.<br />
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I recently handled a golf cart driving while impaired case in Mecklenburg County. My client was charged with DWI, reckless driving and hit and run. The case was ultimately dismissed after I successfully argued a probable cause to arrest motion prior to trial. My client had allegedly driven a golf cart to a local restaurant, driven home and hit a parked car in an apartment complex. The court granted my motion to dismiss for lack of probable cause to arrest my client.<br />
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This case had a successful outcome for my client. However, this case was treated and argued the exact same way as a vehicle driving while impaired case. Proper motions were argued and relevant case law was utilized to support our position.<br />
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Most importantly, police officers, the district attorney and judges do not consider it mitigating evidence that a person chose to get behind the wheel of a golf cart instead of a vehicle.<br />
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If you have been charged with a DWI or traffic case in the Charlotte area, contact the <a href="http://www.ibsenlaw.com/" target="_blank">Law Office of Carilyn Ibsen</a> for a legal consultation at (888)543-2427.<br />
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<br />Carilyn Ibsenhttp://www.blogger.com/profile/05609984888379211315noreply@blogger.com0Charlotte, NC 28210, USA35.1274285 -80.859919334.919695 -81.1826428 35.335162000000004 -80.5371958tag:blogger.com,1999:blog-38752602859679553.post-60004812044887467512016-05-04T10:15:00.000-04:002016-05-04T11:20:42.010-04:00Reliability of Nystagmus in a DWI/DUI Case<a href="http://fitzgeraldlaw.weebly.com/uploads/1/2/9/0/12903240/4555985.jpg?332" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" src="http://fitzgeraldlaw.weebly.com/uploads/1/2/9/0/12903240/4555985.jpg?332" height="150" width="200" /></a>Horizontal gaze nystagmus is a common field sobriety test administered during a DWI/DUI investigation. The police officer holds a finger or pen a certain distance away from the person, making an assessment regarding their level of alcohol impairment. The officer testifies at trial to certain clues exhibited during the test that indicate impairment and then concludes whether the person is impaired for purposes of driving. The results of this test are used in conjunction with results from other field sobriety tests administered at the scene. <br />
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Shea Denning at the <a href="http://nccriminallaw.sog.unc.edu/experts-can-testify-hgn/" target="_blank">UNC School of Government</a> highlighted the recent appellate court case <a href="https://appellate.nccourts.org/opinions/?c=2&pdf=33872" target="_blank">State v. Goodwin</a>. The Court concluded in Goodwin that a police officer must have sufficient experience, education and training in conducting and interpreting the results of the nystagmus test before the officer's testimony is admitted into evidence. <br />
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People will go back and forth regarding the accuracy of the nystagmus test. Some police officers will tell you it is one of the most accurate field sobriety tests they give in the field. Other police officers state that the accuracy can depend on the conditions surrounding the test and the subject.<br />
<a href="http://www.dnrichardslaw.com/wp-content/uploads/2015/10/HGNtest001-e1445380856871.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" src="http://www.dnrichardslaw.com/wp-content/uploads/2015/10/HGNtest001-e1445380856871.jpg" height="106" width="200" /></a><br />
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I have spoken to a notable ophthalmologist and retinal eye surgeon in North Carolina about this test. He told me that this test was designed to be given under controlled settings. While the test can be highly reliable in controlled settings when administered correctly, he questioned the reliability of the test when given in the field by police officers. Also, the test may be completely unreliable based on a person's own medical issues.<br />
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<a href="http://r1.officer.com/files/base/image/OFCR/2014/02/16x9/640x360/officercompic_11318738.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" src="http://r1.officer.com/files/base/image/OFCR/2014/02/16x9/640x360/officercompic_11318738.jpg" height="112" width="200" /></a><br />
The test is suppose to take over a minute to complete. I have rarely seen this. I have included a video below showing how the test is correctly administered. What happens in the field is much different. <br />
<a href="https://www.youtube.com/watch?v=selZ9WrD7ac">https://www.youtube.com/watch?v=selZ9WrD7ac</a><br />
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<a href="http://www.dwifrisco.com/Images/photos/hgn2smaller.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" src="http://www.dwifrisco.com/Images/photos/hgn2smaller.jpg" height="153" width="200" /></a><br />
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<em>Criminal Law Updates By The Law Office of Carilyn Ibsen PLLC (888)543-2427</em><br />
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<br />Carilyn Ibsenhttp://www.blogger.com/profile/05609984888379211315noreply@blogger.com0tag:blogger.com,1999:blog-38752602859679553.post-57016281776352135292016-04-26T09:08:00.001-04:002016-04-26T09:08:47.054-04:00The Heroin EpidemicOne constant in my 16 years of criminal practice, unfortunately, is heroin. As one judge correctly called heroin the "demon" of all drugs, I have witnessed heroin destroy families, empty bank accounts and send once productive citizen to jail cells. <br />
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Heroin has been in the news lately. 60 minutes had an excellent segment last Sunday. Take a moment to watch the piece and learn about drug courts. As I have said <a href="http://blog.ibsenlaw.com/search/label/drug-court" target="_blank">before</a>, my perspective on addiction changed dramatically when I become involved in <a href="http://www.ibsenlaw.com/drug_possession.html" target="_blank">drug </a>and DWI <a href="http://en.wikipedia.org/wiki/Drug_court#cite_note-5" target="_blank">courts </a>as a prosecutor in California. As a former prosecutor and now a practicing defense attorney, I am a supporter of drug courts. <br />
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Local news channels will be airing segments on this issue. I encourage everyone to watch these segment. You can learn more about drug courts <a href="http://www.nadcp.org/learn/what-are-drug-courts" target="_blank">here</a>. <br />
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<em>Criminal Law Updates Provided by The Law Office of Carilyn Ibsen PLLC (888)543-2427</em>Carilyn Ibsenhttp://www.blogger.com/profile/05609984888379211315noreply@blogger.com0tag:blogger.com,1999:blog-38752602859679553.post-28834601055592273402015-05-08T13:17:00.001-04:002015-05-08T13:17:13.419-04:00Common Sense Justice- Raise the Age in North Carolina<u><em>Should 16 and 17 year olds accused of misdemeanors be prosecuted as adults?</em></u><br />
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Important legislation is pending in Raleigh that would change the way 16 and
17 year olds are treated in North Carolina’s criminal justice system. Click <a href="http://www.ncleg.net/gascripts/BillLookUp/BillLookUp.pl?Session=2015&BillID=H399" target="_blank">here</a> to read the Youth Offenders Rehabilitation Act. <br />
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Shockingly, North Carolina and New York remain the only two states in the
country that still prosecute 16 and 17 year olds, when accused of misdemeanors, as
adults. New York is expected to pass legislation soon changing this law. <br />
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North Carolina should do likewise to avoid being the only State in the Union
on the wrong side of common sense justice. <br />
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As a criminal defense attorney who has practiced criminal law for over 15
years, both as a prosecutor and defense attorney, I encourage elected officials
to pass this legislation. <br />
<br />
First, this legislation would only apply to 16 and 17 year olds accused of misdemeanor
offenses; felony cases would remain in adult court. Also, the Bill’s passage is
common sense: teenagers are not yet adults. <br />
<br />
Juvenile cases are heartbreaking. They are heartbreaking for the families
who see their 16 year old family member incarcerated with adults in the county
jail. They are heartbreaking when an individual is reminded of the case every
time a background check is completed. A bad decision made during youth can
unfairly alter a life forever. <br />
<br />
Absolutely, crimes that are committed are horrifying for those who have been
victimized. As a prosecutor, I sat with many victims and remember their raw
emotions and stories. I will never forget the victim whose husband was killed;
I won’t forget her story of getting into her car to go look for him and drove upon the crime scene. I often wonder how their daughter is doing
after losing her dad when she was still in elementary school. You don’t forget
these cases. They stay with you. As a defense attorney, you will always feel
empathy for crime victims. <br />
<br />
Many argue those who commit particularly heinous crimes or young individuals
with violent histories must be treated as adults. This legislation does not
change that. The District Attorney has the discretion to ‘transfer’ cases to
adult court if the facts and history of the case support it. This new law only
applies to misdemeanors, not felonies cases that would qualify for transfer. <br />
<br />
The majority of the cases in court everyday are not these violent cases. Most
cases are teenagers who make a bad decision. Many cases involve teenagers that
come from broken homes, troubled areas and lack any means to support
themselves. Many are living below the poverty level and are not regularly
attending school. They are raising themselves and sometimes a little brother or
sister. <br />
<br />
The existing system of adult justice for 16 and 17 year olds, resulting in
conviction and incarceration as adults, unreasonably alters their futures.
Giving teenagers longer access to the juvenile system where they have educational services, treatment and community programs is imperative and can
ultimately allow them an opportunity to succeed. <br />
<br />
<a href="http://www.ncchild.org/" target="_blank">NC Child</a> and <a href="http://www.cfcrights.org/" target="_blank">Council for Children’s Rights</a> are two organizations worth
mentioning. Both continue to work every day to “put children first” and their
views advocating raising the age are worth visiting. <br />
<br />
<em>Criminal Law Updates Provided by The Law Office of Carilyn Ibsen PLLC (888)543-2427</em><br />
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<br />Carilyn Ibsenhttp://www.blogger.com/profile/05609984888379211315noreply@blogger.com0tag:blogger.com,1999:blog-38752602859679553.post-43972854988475539062015-04-24T13:51:00.000-04:002015-04-24T13:51:26.418-04:00Traffic Tickets and Fishing Expeditions<br />
<div style="border: 1pt solid windowtext; mso-border-alt: solid windowtext .5pt; mso-element: para-border-div; padding: 1pt 4pt;">
<div class="MsoNormal" style="border: currentColor; line-height: normal; margin: 0in 0in 9.75pt; mso-border-alt: solid windowtext .5pt; mso-outline-level: 1; mso-padding-alt: 1.0pt 4.0pt 1.0pt 4.0pt; padding: 0in;">
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expedition</span><span style="color: #666666; font-family: "Verdana","sans-serif"; font-size: 27pt; mso-bidi-font-family: "Times New Roman"; mso-fareast-font-family: "Times New Roman"; mso-font-kerning: 18.0pt;"><o:p></o:p></span></div>
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<o:p><span style="font-family: Calibri;"> <a href="http://dictionary.com/">dictionary.com</a></span></o:p></div>
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<br />
Nearly everyone has received a traffic ticket. Almost everyone has gone fishing. Are the two mutually exclusive? Not in criminal law. <br />
<br />
Police officers give hundreds of traffic tickets. In North Carolina, State Troopers give thousands. What police agencies cannot do during a traffic stop is go on a "fishing expedition." An officer can issue a traffic ticket. However, once that ticket is issued, an officer may not continue the contact with the driver or passenger to investigate issues that were unrelated to the initial reason for the stop.<br />
<br />
The US Supreme Court issued a substantial ruling this week in <a href="http://www.supremecourt.gov/opinions/14pdf/13-9972_p8k0.pdf" target="_blank">Rodriguez v. United States</a>. <br />
<br />
In Rodriguez, the defendant was initially stopped by a police officer for veering onto the shoulder of a state highway in Nebraska. After the officer did a license and warrant check on both the driver and the passenger came back clean, the officer issued a warning ticket to the driver. The officer then asked the driver for permission to allow his "drug dog" sniff around the vehicle. The driver did not consent to this search by the dog. Seven or eight minutes later a second officer arrived, dog sniff search was conducted and methamphetamine was discovered. UNC School of government wrote an excellent summary of the case <a href="http://nccriminallaw.sog.unc.edu/supreme-court-rejects-de-minimis-extension-of-a-traffic-stop-to-deploy-a-drug-dog/" target="_blank">here</a>. <br />
<br />
The Court ultimately held that an officer cannot extend a traffic stop beyond the time necessary to complete the "mission" of the stop; specifically, the time to "address the traffic violation that warranted the stop.. and attend to related safety concerns." A police officer's authority to detain a driver and his vehicle ends when the issues tied to the traffic infraction are completed or reasonably should have been completed. An officer cannot, as dictionary.com correctly defines, carry on a "fishing expedition" in the hope of discovering information. <br />
<br />
Police officers will continue to use traffic stops as gateways to conduct full investigations. However, this important Supreme Court ruling will require police officers to justify their continued contact. True transparency will take place when all officers are equipped with cameras/voice recorders. Only then will we know the true extent of the expedition. <br />
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<em>Criminal Law Updates provided by The Law Office of Carilyn Ibsen PLLC (888)543-2427</em><br />
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<br />Carilyn Ibsenhttp://www.blogger.com/profile/05609984888379211315noreply@blogger.com0tag:blogger.com,1999:blog-38752602859679553.post-84289315338635232162015-04-20T17:56:00.000-04:002015-04-20T17:56:19.328-04:00Expert Testimony- An Alarming New Report Showing How Flawed It Really IsThe North Carolina Crime Lab is not the only agency that <a href="http://www.americanbar.org/content/dam/aba/publications/criminal_justice_magazine/sp12_sci_evidence.authcheckdam.pdf" target="_blank">failed</a>. In a <a href="http://www.charlotteobserver.com/news/politics-government/article18894342.html" target="_blank">newly released report</a> , the Justice Department and the FBI acknowledged that examiners in an elite FBI forensic unit gave flawed testimony in almost all trials they testified for the prosecution over a twenty year period. Specifically, 26 of 28 employees overstated hair comparison results that favored prosecutors in more than 95 percent of trials. These cases included 32 defendants that were sentenced to death. 14 of the 32 have already been executed or have died in prison. As a result, the Justice Department and the FBI are now conducting one of the largest <a href="http://www.washingtonpost.com/local/crime/justice-dept-fbi-to-review-use-of-forensic-evidence-in-thousands-of-cases/2012/07/10/gJQAT6DlbW_story.html" target="_blank">post conviction reviews</a> of cases that fall within this period. You can read the article <a href="http://www.chicagotribune.com/news/nationworld/chi-fbi-admits-flaws-in-hair-analysis-20150419-story.html#page=1" target="_blank">here</a>. <br />
<br />
When <a href="http://ibsenlaw.com/">I</a> was a prosecutor, calling my criminalist as my expert witness in a trial was one of the one less demanding tasks. For me, before commencing testimony of a criminologist was like pressing play on a DVD player. After the criminologist entered the courtroom carrying their briefcase, sat down at the witness stand and started organizing their paperwork, I "pressed play" beginning my robot request of their background, to provide background information to the jury, their education, their degrees, certifications and all the training they received from the day they started their career. Then we would explore the testing they conducted. At the end, I would ask for a conclusion. <br />
<br />
At this point, jurors just wanted to hear the result
after listening mind numbing data, sometimes for hours. They may not
understand the science, flawed as it can be and which has become more
confusing as technology advances, and if they don't, they cannot
relate to the conclusion.<br />
<br />
To convey that they do understand, jurors believe
criminalist testimony. While they don't understand it, having
listened to all of the 'experts' education and experience, they generally
conclude "this person clearly knows what he/she is doing." They also
believe the sworn expert is honest and not motivated to manage results.
Jurors typically have not had bad "life experiences" with expert
witnesses in a courtroom, unlike many which have had such bad experiences,
outside the courtroom, with law enforcement where they are aware of victims of
unfavorable treatment, witnesses to unfavorable treatment or heard stories on
the news. Jurors see the criminologist as an impartial authority at
work in "a laboratory", going to work each day to do their job.<strong> </strong><o:p></o:p>
<br />
<they a="" about="" after="" all="" and="" as="" ask="" asking="" at="" be="" br="" briefcase="" by="" can="" carrying="" certifications="" conclusion.="" conducted.="" courtroom="" data="" degrees="" don="" down="" education="" end="" entered="" explore="" flawed="" for="" hear="" hours.="" how="" i="" it="" jurors="" just="" listening="" mind="" nbsp="" numbing="" organizing="" paperwork.="" point="" received.="" result="" sat="" science="" stand="" start="" started="" t="" testing="" the="" their="" them="" then="" there.="" they="" this="" to="" too="" training="" understand="" wanted="" we="" witness="" would="">
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The problem is they do make errors. They do make mistakes. Thus, reviews like this are absolutely necessary. However, they can't provide relief to the fourteen who were convicted and subsequently executed or died in prison. </they><br />
<they a="" about="" after="" all="" and="" as="" ask="" asking="" at="" be="" br="" briefcase="" by="" can="" carrying="" certifications="" conclusion.="" conducted.="" courtroom="" data="" degrees="" don="" down="" education="" end="" entered="" explore="" flawed="" for="" hear="" hours.="" how="" i="" it="" jurors="" just="" listening="" mind="" nbsp="" numbing="" organizing="" paperwork.="" point="" received.="" result="" sat="" science="" stand="" start="" started="" t="" testing="" the="" their="" them="" then="" there.="" they="" this="" to="" too="" training="" understand="" wanted="" we="" witness="" would=""></they><br />
<they a="" about="" after="" all="" and="" as="" ask="" asking="" at="" be="" br="" briefcase="" by="" can="" carrying="" certifications="" conclusion.="" conducted.="" courtroom="" data="" degrees="" don="" down="" education="" end="" entered="" explore="" flawed="" for="" hear="" hours.="" how="" i="" it="" jurors="" just="" listening="" mind="" nbsp="" numbing="" organizing="" paperwork.="" point="" received.="" result="" sat="" science="" stand="" start="" started="" t="" testing="" the="" their="" them="" then="" there.="" they="" this="" to="" too="" training="" understand="" wanted="" we="" witness="" would=""><em>Mecklenburg County Criminal Law Updates Provided by The Law Office of Carilyn Ibsen PLLC (888)543-2427</em></they><br />
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<br />
<they a="" about="" after="" all="" and="" as="" ask="" asking="" at="" be="" br="" briefcase="" by="" can="" carrying="" certifications="" conclusion.="" conducted.="" courtroom="" data="" degrees="" don="" down="" education="" end="" entered="" explore="" flawed="" for="" hear="" hours.="" how="" i="" it="" jurors="" just="" listening="" mind="" nbsp="" numbing="" organizing="" paperwork.="" point="" received.="" result="" sat="" science="" stand="" start="" started="" t="" testing="" the="" their="" them="" then="" there.="" they="" this="" to="" too="" training="" understand="" wanted="" we="" witness="" would=""></they><br />Carilyn Ibsenhttp://www.blogger.com/profile/05609984888379211315noreply@blogger.com0Charlotte, NC 28210, USA35.1274285 -80.859919334.919695 -81.1826428 35.335162000000004 -80.5371958tag:blogger.com,1999:blog-38752602859679553.post-40344902292762642522014-10-23T13:08:00.000-04:002014-10-23T13:08:02.011-04:00Should I Take Traffic School Before My Court Date? <a href="http://www.blackgrossman.com/images/practice-areas/traffic-ticket.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" src="http://www.blackgrossman.com/images/practice-areas/traffic-ticket.jpg" height="155" width="200" /></a>Traffic school can be both a good and unnecessary option when you have received a speeding or other traffic violation. Confusion over this choice seems worth clarifying, since my office frequently receives calls regarding this subject. <br />
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The question begins when drivers in Mecklenburg County, or within the Charlotte area, receive a speeding ticket. During the traffic stop, the citing police officer suggests attending traffic school prior to the court date. <br />
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Traffic school can be required in some situations but not in the majority of traffic violations. For example, sometimes the District Attorney will require traffic school for a speed reduction. Other judges may require traffic school before a Prayer for Judgment (PJC) is granted. <br />
<br />
Additionally, there are several different types of traffic school:<br />
<ul>
<li>4 hour (green school)</li>
<li>8 hour (red school)</li>
<li>Alive at 25 for younger drivers, and recently added</li>
<li>"Behind the Wheel" traffic school where drivers complete parts of the class in vehicles. This new course is geared toward younger drivers who are historically higher risk drivers. </li>
</ul>
However, the majority of drivers who received a traffic ticket will not need to take traffic school. For example, drivers with good driving records or cited speeds slightly over the speed limit may not have to take traffic school.<br />
<br />
A police officer is neither an attorney nor a judge. While perhaps meaning well (knowing full well that you are upset having received the speeding ticket), the officer issuing the ticket should not be giving legal advice during a traffic stop. <br />
<br />
An attorney can be helpful in defining how each driver may best respond to the issuance of a traffic ticket. <br />
<br />
For more information about traffic school in Mecklenburg, Gaston and Union county, <a href="http://www.safetync.org/ddconlinergistrationcharlotte.htm" target="_blank">click here</a>. <br />
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<em>Charlotte Traffic Updates are Provided By The Law Office of Carilyn Ibsen PLLC (888)543-2427</em><br />
<br />Carilyn Ibsenhttp://www.blogger.com/profile/05609984888379211315noreply@blogger.com0tag:blogger.com,1999:blog-38752602859679553.post-81491232993202117902014-09-25T07:42:00.000-04:002014-09-25T07:42:45.321-04:00Speeding Ticket in Charlotte? Consider Insurance Points.Callers to my law office after receiving a speeding ticket in Mecklenburg and surrounding counties often ask whether their ticket will affect their driving record.<br />
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"What can you do to help me? I don't want any point on my driving record." It is understandable, as all of us wish to maintain good driving records. But drivers need to be aware that points on their driving record are likely to also increase their cost of insurance. <br />
<br />
<a href="https://encrypted-tbn1.gstatic.com/images?q=tbn:ANd9GcQXkFXktIbZLgFXmPcFm7FAucAxduHm8L5N5eTiCiIxeYZCCV_ADg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" height="139" src="https://encrypted-tbn1.gstatic.com/images?q=tbn:ANd9GcQXkFXktIbZLgFXmPcFm7FAucAxduHm8L5N5eTiCiIxeYZCCV_ADg" width="200" /></a>Driver records are maintained by the DMV. The DMV will assess points on driving records for moving violations. Separately, auto insurers will review DMV records and establish auto insurance rates. Insurance rates can be increased when a person is convicted of a traffic offense, specifically a moving violation. <br />
<br />
North Carolina regulates car insurance rates. There is a reward for being a good driver in North Carolina. If a person is convicted of speeding 10 mph or less (not in a school zone) and there is not a moving violation in the past 3 years, no insurance points will be assessed. This is a situation where driving points will be assessed, however no insurance increase will result. <br />
<br />
I often encourage people to review the North Carolina Consumer Guide to Automobile Insurance. You can view it <a href="http://www.ncdoi.com/_publications/consumer%20guide%20to%20automobile%20insurance_cau1.pdf" target="_blank">here</a>. Page 8 and 9 are most helpful. <br />
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<em>Charlotte Traffic Ticket Updates Provided By The Law Office of Carilyn Ibsen PLLC (888)543-2427</em><br />
<br />Carilyn Ibsenhttp://www.blogger.com/profile/05609984888379211315noreply@blogger.com0tag:blogger.com,1999:blog-38752602859679553.post-767792275880061692014-09-19T09:08:00.001-04:002014-09-19T09:08:17.644-04:00Do I Have To Come To Court For My Traffic Ticket?Question: Do I need to come to court for my traffic ticket?<br />
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Police Officers issue hundreds of tickets daily in Charlotte. If the speed is over 15 mph, the police officer will likely state "Your appearance is mandatory. You can't pay this ticket online." </div>
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However, most traffic tickets can be handled by an attorney without the defendant coming to court. <a href="http://www.ncga.state.nc.us/EnactedLegislation/Statutes/HTML/BySection/Chapter_7A/GS_7A-148.html" target="_blank">NCGS 7A-148</a> acknowledges the necessity for courts to operate efficiently. As such, the North Carolina court system has a specific <a href="http://www.nccourts.org/forms/Documents/1219.pdf" target="_blank">list</a> of traffic tickets that can be resolved by an attorney without the client being present. A simple one page waiver signed by the client is sufficient for the court. </div>
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The Law Office of Carilyn Ibsen is familiar with this process. Clients are very relieved to hear that they will not need to take a day off work or travel from another state to have their ticket resolved. Many times these tickets can be resolved with an outcome that prevents any insurance increase. </div>
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<i>Charlotte Traffic Ticket Updates Provided By The Law Office of Carilyn Ibsen PLLC (888)543-2427</i></div>
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Carilyn Ibsenhttp://www.blogger.com/profile/05609984888379211315noreply@blogger.com0tag:blogger.com,1999:blog-38752602859679553.post-47281500978246365172014-09-19T08:11:00.001-04:002014-09-19T08:11:59.792-04:00Charlotte Traffic Ticket- What if the Police Officer doesn't show up?<div class="separator" style="clear: both; text-align: center;">
<a href="http://www.northcarolinatrafficcourts.com/nash/images/logo.png" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" src="http://www.northcarolinatrafficcourts.com/nash/images/logo.png" height="66" width="320" /></a></div>
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My law office receives phone calls daily from people who received a speeding ticket in the Charlotte area. The two main questions asked are "What happens if the Officer doesn't show up in Court, Is my case then dismissed?" and "Do I need to come to court on my traffic ticket?".<br />
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<a href="http://www.dmv.org/images/artimg/Traffic-Ticket-FAQ-in-North-Carolina-1445-r.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" src="http://www.dmv.org/images/artimg/Traffic-Ticket-FAQ-in-North-Carolina-1445-r.jpg" height="209" width="320" /></a></div>
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I'll address the first question today.<br />
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Every traffic ticket citation will include a promise to appear in court. If the ticket is in Mecklenburg County, the first court date is in Courtroom 1130. Courtroom 1130 is an administrative courtroom where the defendant or the defendant's attorney negotiates the traffic ticket with the District Attorney. As such, in this courtroom, the police officer is not subpoenaed to come to court. <br />
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If the negotiation is not successful, the case is then set for trial which will be held on the fourth floor of the Courthouse. The date will be within six to eight weeks. The police officer is then subpoenaed to come to court on the trial date. For whatever reason, should the police officer not attend on the trial date or the District Attorney cannot call the case for trial due to a heavy docket, the case will likely be continued to a new date.<br />
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Gaston County traffic and speeding tickets are handled differently than Mecklenburg. The first appearance for a traffic ticket in Gaston County is in front of a Magistrate. There is no judge or District Attorney present. The case is continued for a trial date approximately six weeks later where the officer is subpoenaed.<br />
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People are often surprised to hear this multi-step procedure for traffic tickets in North Carolina. Many recall the old days of traffic court where police officers would line the court hallways with everyone waiting for their case to be called. If the officer wasn't present, the case was dismissed. Due to many factors, including the large number of traffic ticket cases each day, this "one-step" practice is understandably no longer feasible. For example, Mecklenburg County Courtroom 1130 is an administrative courtroom that can docket up to 1300 cases a day.<br />
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Most traffic tickets in Mecklenburg, Gaston and Union County can be negotiated and resolved by an attorney without the person coming to court. Before making a trip and spending all day waiting in court, call a traffic attorney in the Charlotte area to see if they can be of assistance.<br />
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<i>Charlotte Traffic Ticket Updates Provided by The Law Office of Carilyn Ibsen PLLC (888)543-2427</i><br />
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<br />Carilyn Ibsenhttp://www.blogger.com/profile/05609984888379211315noreply@blogger.com0tag:blogger.com,1999:blog-38752602859679553.post-72314952859007853722014-09-18T10:29:00.000-04:002014-09-18T10:29:16.291-04:00DWI Arrest in Charlotte? What is a Portable Breath Test? <b>SITUATION: </b><br />
You have been pulled over by a police officer for DWI. The Officer asks you to exit the vehicle. Suddenly a small device is pulled from the patrol car. Officer asks you to blow in this device. What should you do?<br />
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<a href="https://archive.org/download/in-nj-whats-a-portable-breath-test-device/in-nj-whats-a-portable-breath-test-device.thumbs/What%20Is%20A%20Portable%20Breath%20Test%20(PBT)%20Device-_000007.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" src="https://archive.org/download/in-nj-whats-a-portable-breath-test-device/in-nj-whats-a-portable-breath-test-device.thumbs/What%20Is%20A%20Portable%20Breath%20Test%20(PBT)%20Device-_000007.jpg" /></a>This device is known as a Portable Breath Test- commonly called a PBT. Contrary to what some Police Officers will tell you, this is not the breath device licensed drivers are required to take under North Carolina implied consent laws. Actually, the numerical result of this test is not even admissible in court.<br />
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<a href="http://www.michigan-drunk-driving.com/sites/default/files/alcolll.png" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" src="http://www.michigan-drunk-driving.com/sites/default/files/alcolll.png" /></a>Portable Breath Devices were issued to police officers as a tool to determine whether probable cause exists to arrest a person for DWI. It is just one of several factors <br />
among several others, including field sobriety tests, used in this determination.<br />
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In my opinion, police officers have become too reliant on the result of this test during the initial investigation of a DWI in the field. A Court of Appeals case issued just this week essentially reiterated this.<br />
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In <u>State v. Overocker</u>, it was held that a positive result for alcohol and admission by the driver that they consumed alcohol was not sufficient probable cause for arrest.<br />
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Remember, it is not illegal to drive with alcohol in your system, unless under 21 or in violation of specific terms of probation. It is illegal when drive when that alcohol has impaired your ability to drive safely or your blood alcohol level is .08 or above.<br />
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Returning to the questions presented at the beginning of the post- which test is a license driver required to take under North Carolina implied consent laws?<br />
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If a driver is stopped by a police officer under suspected DWI, the implied North Carolina implied consent law requires a person to submit to a breath or blood test after probable cause to arrest.<br />
This breath test is usually administered at a police station under regulated conditions or the blood draw is administered at a hospital. <br />
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What happens if a person refuses to take this test- that is another post to come later- The DWI refusal.<br />
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<i>Criminal Law Updates Provided by The Law Office of Carilyn Ibsen PLLC. (888)542-2427</i>Carilyn Ibsenhttp://www.blogger.com/profile/05609984888379211315noreply@blogger.com0tag:blogger.com,1999:blog-38752602859679553.post-89918575991806762922013-09-26T10:57:00.000-04:002013-09-26T10:57:05.484-04:00DWI/DUI & The Public InterestToday's Charlotte Observer contained an <a href="http://www.charlotteobserver.com/2013/09/25/4342604/audit-state-failed-to-make-detailed.html#.UkQ5X40jJqU" target="_blank">article </a>regarding a recent audit finding that North Carolina failed to make DWI/DUI court results accessible to the general public. Under a law enacted seven years ago, North Carolina Administrative Office of the Courts (AOC) is legally required to provide detailed information of conviction/acquittal rates in DWI cases in addition to detailed statistics on how judges and prosecutors handled cases. You can read the audit <a href="http://www.ncauditor.net/EPSWeb/Reports/FiscalControl/FCA-2013-2000.pdf" target="_blank">here</a>.<br />
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To actually comply with the detailed requirements of this law, AOC would need an additional 25 million dollars in computer upgrades. In light of the AOC's technology budget being cut from 45 million dollars to 29 million, I don't see how this is going to happen.<br />
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Mecklenburg County Courthouse is a busy place. The dockets are heavy and the court staff is working with technology that is anything but cutting edge. Clerks and Attorneys use the antiquated green screen technology that resembles the computer system in the 1983 movie War Games or the MS-DOS system.<br />
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Asking the Courts to direct additional funds towards technology that focuses on a narrow set of cases should be questioned; every criminal case is fact specific. A DWI case can be dismissed for not only lack of evidence but also if the police officer is unavailable to testify. Charlotte Mecklenburg Police Officer Randall Kerrick is now facing charges of Voluntary Manslaughter in Mecklenburg County. If the District Attorney decides to dismiss all criminal cases where he was the primary police officer involved, would the court data reflect this specific reason for dismissal? Or, would the judge assigned to the courtroom where Officer Kerrick's cases were set for trial appear to be 'soft on crime' when dismissals were entered into the computer system?<br />
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<i>Mecklenburg County Criminal Attorney Updates Provided by The Law Office of Carilyn Ibsen PLLC</i>Carilyn Ibsenhttp://www.blogger.com/profile/05609984888379211315noreply@blogger.com0tag:blogger.com,1999:blog-38752602859679553.post-22665327749710158382013-08-11T19:13:00.000-04:002013-08-11T19:13:24.820-04:00Criminal Courts & The Mentally Ill <div class="MsoNormal">
The <a href="http://www.charlotteobserver.com/2013/08/10/4228126/for-mentally-ill-children-in-nc.html">Charlotte Observer</a> ran a piece <a href="http://www.charlotteobserver.com/2013/08/10/4228126/for-mentally-ill-children-in-nc.html">today </a>highlighting the lack
of resources for mentally ill children in North Carolina. The article does not
specifically address the criminal justice system, but does briefly mention how
they often intersect. However, any criminal defense attorney in Mecklenburg
county will tell you there is a correlation between lack of services available
for mentally ill patients and criminal behavior. <o:p></o:p></div>
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The article mentions the effects of budget cuts on available
services for mentally ill children. With very few places for patients to stay, many
are forced into environments that pose a high risk to family members and often
result in criminal conduct. The young adult is then taken into custody and a
criminal case ensues. <o:p></o:p></div>
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Mecklenburg County does have mental health court. Similar to
drug courts, defendants are placed on probation, have probation officers and are
required to come to court regularly to speak to the judge about their progress.
Many find success in this structured setting. However, some individuals have
such severe diagnoses, they require secured placement. This does not exist. Most
placement facilities are forced to have
a revolving door policy; New Hope of
Carolinas is a short term facility- young adults are admitted, once they are
stabilized, they must be released. <o:p></o:p></div>
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It is an ongoing issue <a href="http://www.ibsenlaw.com/">I</a> see regularly in both <a href="http://www.ibsenlaw.com/profile.html">criminal courts</a>
and <a href="http://blog.ibsenlaw.com/search/label/guardianship-cases">incompetency/guardianship</a> proceedings. Finding solutions for these issues is an
ongoing effort. I'm glad the Observer chose to highlight the issue today. <o:p></o:p></div>
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Carilyn Ibsenhttp://www.blogger.com/profile/05609984888379211315noreply@blogger.com0tag:blogger.com,1999:blog-38752602859679553.post-90812677108337790042013-06-30T10:06:00.004-04:002013-06-30T10:06:54.063-04:00Forced Blood Draws- A VideoSimple Justice <a href="http://blog.simplejustice.us/2013/06/30/but-for-video-this-wont-hurt-me-a-bit.aspx">"But for the Video, This won't hurt (me) a bit"</a> has an eye opening video depicting several arrested for DWI/DUI undergoing a forced blood draw. It highlights the controversy around forced blood draws in DWI/DUI cases. The recent <a href="http://blog.ibsenlaw.com/2013/04/a-warrant-for-dwi.html" target="_blank">Missouri </a>case handed down by the US Supreme Court paves the way for the necessity of a warrant in forced blood draws, however a warrant does nothing to diminish the severity of strapping citizens down, putting them in a head hold and forcing a needle in their arm.<br />
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<a href="http://www.ibsenlaw.com/profile.html" target="_blank">I</a> have <a href="http://blog.ibsenlaw.com/2012/09/driving-while-impaired-supreme-court.html" target="_blank">blogged </a>on the practice of forced blood draws. As a <a href="http://www.ibsenlaw.com/" target="_blank">Deputy District Attorney</a>, I handled these cases regularly and showed videos of them during jury trials. It is hard to describe how extreme, and in the words of Simple Justice, "barbaric" they are. This video, although eight minutes in length, is worth watching.<br />
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Carilyn Ibsenhttp://www.blogger.com/profile/05609984888379211315noreply@blogger.com0tag:blogger.com,1999:blog-38752602859679553.post-1223178040525404282013-06-30T09:05:00.001-04:002013-06-30T09:05:24.036-04:00Juveniles in Jail? A study released by the National Bureau of Economic Research concluded that <a href="http://www.ibsenlaw.com/juvenile_law.html" target="_blank">juveniles </a>who were sent to juvenile hall made them 13 percentage points less likely to finish high school and 22 percentage points more likely to be imprisoned as adults. <a href="http://www.businessinsider.com/study-america-is-breeding-criminals-by-imprisoning-too-many-teenagers-2013-6" target="_blank">Business Insider</a> had a short story highlighting the <a href="http://www.nber.org/papers/w19102" target="_blank">working paper</a> by Anna Aizer and Joseph Doyle.<br />
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This paper analyzed over 35,00 juvenile offender during a 10 year period in the Chicago area. The authors found that incarceration had a minimal deterrent effect. Rather, punishments that included curfews and electronic monitoring resulted in a higher likelihood of juveniles becoming productive adults.<br />
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It costs on average of $88,000 a year, around $241 a day to keep a child in custody. With severe <a href="http://blog.ibsenlaw.com/2013/06/the-05-solution.html" target="_blank">economic budget cuts in the North Carolina</a> judicial system and <a href="http://blog.ibsenlaw.com/2012/10/juvenile-crime-decreases.html" target="_blank">juvenile crime decreasing</a> in North Carolina, alternatives to incarceration and <a href="http://blog.ibsenlaw.com/2012/05/raise-age.html" target="_blank">raising the minimun age</a> from 16 years to 18 years should be considered. <br />
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<i>Mecklenburg County Criminal Attorney updates Provided by The Law Office of Carilyn Ibsen PLLC </i><br />
<br />Carilyn Ibsenhttp://www.blogger.com/profile/05609984888379211315noreply@blogger.com0tag:blogger.com,1999:blog-38752602859679553.post-30051861781579261492013-06-29T13:27:00.000-04:002013-06-29T13:27:25.464-04:00Operation Firecracker & DWIDUI CheckpointsSummer may have officially started June 21st, but last night started likely the first of many DWI/DUI checkpoints in Mecklenburg County. According to the <a href="http://www.charlotteobserver.com/2013/06/29/4136839/police-dwi-checkpoint-issues-46.html" target="_blank">Charlotte Observer</a>, CMPD issued forty six charges at a DWI checkpoint in South Charlotte last night. Eight people were charged with DWI/DUI and seven were charged with Driving While License Revoked. Other charges included open container of alcohol and other miscellaneous traffic charges.<br />
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North Carolina's Department of Transportation "Booze it & Lose It: Operation Firecracker" campaign runs from June 28 through July 7. I found this video on their <a href="https://apps.ncdot.gov/newsreleases/details.aspx?r=8446" target="_blank">website</a>.<br />
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If you have been arrested for a DWI/DUI, it is important to contact an <a href="http://www.ibsenlaw.com/" target="_blank">criminal defense attorney</a> for a consultation.<br />
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<i>Charlotte Criminal Lawyer Updates Provided by The Law Office of Carilyn Ibsen PLLC </i><br />
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<iframe allowfullscreen="" frameborder="0" height="360" src="https://www.youtube.com/embed/le_Za6NDRgo?feature=player_detailpage" width="640"></iframe>Carilyn Ibsenhttp://www.blogger.com/profile/05609984888379211315noreply@blogger.com0tag:blogger.com,1999:blog-38752602859679553.post-13397422913766759702013-06-02T09:35:00.001-04:002013-06-02T09:35:42.189-04:00The .05 Solution<div class="separator" style="clear: both; text-align: center;">
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The National Transportation Safety Board recently issued a recommendation that state governments across the country should reduce the blood alcohol concentration (BAC) limit from .08 to .05. This caused a recent wave of media attention on drunk driving. Those who support the change cite alcohol related traffic deaths that could possibly be reduced with a lower limit. Those who oppose it, one being the director of the American Beverage Institute, state that it will do nothing to prevent the <a href="http://usnews.nbcnews.com/_news/2013/05/14/18250824-ntsb-recommends-lowering-blood-alcohol-level-that-constitutes-drunken-driving?lite" target="_blank">"hardcore drunk drivers"</a> from getting behind the wheel. A <a href="http://www.usatoday.com/story/opinion/2013/05/30/drunken-driving-blood-alcohol-content-editorials-debates/2374199/" target="_blank">USA Today editorial</a> recommended the use of interlocks in lieu of a lower BAC.<br />
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The writing has been on the wall for this reduction for quite some time. C<span style="background-color: white;">riminalists I worked with at the Orange County District Attorney's Office told me 10 years ago that .08 blood concentration would eventually be reduced to a .05 or .04..Whether this will actually happen is likely a political question within state governments. </span><br />
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However, the media has not addressed the economic implications of criminalization of lower blood alcohol concentration- the dramatic increase in criminal cases across the country. District and Superior Courts in Mecklenburg County are already overcrowded with cases. Among this backlog of cases, the North Carolina Court System just issued 80 million dollars in budget cuts over the next four years; 638 full time employees cut, including magistrates and district attorney staff that handle criminal cases. NC Policy Watch has an <a href="http://www.ncpolicywatch.com/2013/01/16/budget-cuts-recession-batter-nc-courts-threaten-justice/" target="_blank">article</a> that talks about this issue. Jail overcrowding and the ability of the police departments to handle such an increase in arrests on a daily basis is another issue.<br />
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Perhaps the <a href="http://blog.simplejustice.us/2013/05/18/the-05-solution.aspx" target="_blank">.05 solution</a> is not as simple as it seems.<br />
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<i>Mecklenburg County Criminal Law Updates Provided by The Law Office of Carilyn Ibsen PLLC </i><br />
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<span style="background-color: white;"><br /></span>Carilyn Ibsenhttp://www.blogger.com/profile/05609984888379211315noreply@blogger.com0Charlotte, NC 28204, USA35.2150714 -80.82947469999999235.1891259 -80.869815199999991 35.2410169 -80.789134199999992tag:blogger.com,1999:blog-38752602859679553.post-66673806056350441582013-04-30T19:21:00.000-04:002013-04-30T19:21:17.100-04:00A Warrant for a DWI?<div class="separator" style="clear: both; text-align: center;">
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It's rare when the US Supreme Court makes a bright line
legal test for anything and they continued this with the holding in <a href="http://blog.ibsenlaw.com/2013/02/waiting-for-missouri.html" target="_blank">Missouri v.Mcneely</a>. 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.<br />
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Any c<a href="http://www.ibsenlaw.com/" target="_blank">riminal defense lawyer</a> 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. <o:p></o:p></div>
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Ten years ago, I believe prosecutors would be on the winning
side of this argument that obtaining a warrant was not feasible. When <a href="http://www.ibsenlaw.com/" target="_blank">I </a>was
<a href="http://www.ibsenlaw.com/profile.html" target="_blank">Deputy District Attorney</a>, 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. <o:p></o:p></div>
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Technology has improved police procedure tremendously. Or,
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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. <o:p></o:p><br />
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<i>Mecklenburg County Criminal Attorney Updates Provided By The Law Office of Carilyn Ibsen PLLC</i></div>
Carilyn Ibsenhttp://www.blogger.com/profile/05609984888379211315noreply@blogger.com0Charlotte, NC 28203, USA35.2146586 -80.859919335.1627631 -80.9406003 35.2665541 -80.7792383tag:blogger.com,1999:blog-38752602859679553.post-7410948341035774542013-04-01T20:08:00.002-04:002013-04-01T20:08:15.963-04:00Russell Brand- Give It UpSpend a day in District or Superior Criminal Court in <a href="http://www.ibsenlaw.com/" target="_blank">Mecklenburg County</a> 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 <a href="http://www.ncdoj.gov/Top-Issues/Fighting-Crime/Precription-Drug-Abuse.aspx" target="_blank">Department of Justice</a> reported a 400% increase in prescription drug abuse over a five year period. Drugs are everywhere in criminal courts. <a href="http://blog.ibsenlaw.com/2012/04/incarceration-or-rehabilitation.html" target="_blank">Drug courts</a> have proved to be a successful alternative.<br />
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Addiction is cruel disease. When I started as a <a href="http://www.ibsenlaw.com/profile.html" target="_blank">Deputy District Attorney</a>, 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. </div>
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Russell Brand is an addict. He recently wrote a piece for his blog called <a href="http://www.russellbrand.tv/2013/03/give-it-up/" target="_blank">Give It Up</a> that demonstrated the power of addiction. Here is an excerpt: </div>
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I cannot accurately convey to you the efficiency of heroin in neutralizing pain. It transforms a tight, white fist into a gentle, brown wave...<br />
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. </blockquote>
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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 <a href="http://blog.ibsenlaw.com/2011/06/charlotte-criminal-attorney.html" target="_blank">drug addict</a> is: </div>
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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?</blockquote>
The purpose of this post is not to advocate <a href="http://blog.ibsenlaw.com/2012/04/incarceration-or-rehabilitation.html">rehabilitation </a>over jail. I have written on that <a href="http://blog.ibsenlaw.com/search/label/drug%20court">before</a>. 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.<br />
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Click here to read <a href="http://www.russellbrand.tv/2013/03/give-it-up/" target="_blank">Give it UP</a>.<br />
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<i>Mecklenburg Criminal Law Lawyer Updates Provided By The Law Office of Carilyn Ibsen </i><br />
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Carilyn Ibsenhttp://www.blogger.com/profile/05609984888379211315noreply@blogger.com0tag:blogger.com,1999:blog-38752602859679553.post-22367561076071741722013-03-24T18:25:00.002-04:002013-03-24T18:25:47.822-04:00DWI/DUI- The Details MatterA criminal defense <a href="http://www.ibsenlaw.com/" target="_blank">attorney </a>in Mecklenburg County often will receive a phone call from someone recently arrested for <a href="http://www.ibsenlaw.com/dwi-dui.html" target="_blank">DWI/DUI</a>. A common question asked is whether there is any chance the case will just get "thrown out". The simple answer is no- cases are not thrown out. Rather, a good criminal defense attorney will use their knowledge and skill to chip away at a case and get specific items of evidence excluded or suppressed. Successful evidence blocking can lead to a not guilty or a dramatically lesser sentence.<br />
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I recently had success at suppressing the result of a breath test given by a client arrested for <a href="http://www.ibsenlaw.com/dwi-dui.html" target="_blank">DWI </a>in Mecklenburg County. Although at first glance the client's breath result seemed correct- the officer affirmed he observed the client for 15 minutes prior to the test, the results were within .02 of each other and each sample was given within the statutory time. However, calibration logs I pulled from the North Carolina Department of Health and Human services website showed the machine was not calibrated within the statutory time. My motion to suppress was granted.<br />
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I handled another case where my client submitted to a blood test after arrested for DWI. This test was taken at a hospital and the blood was subsequently examined by the Mecklenburg County Crime Lab. The result was significantly over .15. However, <a href="http://www.ibsenlaw.com/profile.html" target="_blank">I</a> found an issue with the chain of custody. After the appropriate motion was run, this evidence was also suppressed.<br />
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Success with DWI/DUI's in Mecklenburg County require a careful review of the evidence. This evidence is often found in small details that effective criminal defense <a href="http://www.ibsenlaw.com/profile.html" target="_blank">attorneys </a>take the time to look into.<br />
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<i>Mecklenburg County Criminal Law Updates Provided By the Law Office of Carilyn Ibsen PLLC </i><br />
<br />Carilyn Ibsenhttp://www.blogger.com/profile/05609984888379211315noreply@blogger.com0Charlotte, NC 28277, USA35.0535496 -80.82116959999996234.949559099999995 -80.98253109999996 35.1575401 -80.659808099999964tag:blogger.com,1999:blog-38752602859679553.post-68574303981711014932013-03-03T12:41:00.001-05:002013-03-03T12:41:54.185-05:00Time to Swab? <span style="font-family: Times, Times New Roman, serif;">North Carolina law requires the collection of a person's DNA upon the arrest of certain offenses, including those arrested for <a href="http://www.ibsenlaw.com/" target="_blank">criminal charges</a> in<a href="http://www.ibsenlaw.com/services.html" target="_blank"> Mecklenburg County</a>. This is upon <u>arrest and not conviction</u>. You can read the North Carolina statute <a href="http://www.ncga.state.nc.us/EnactedLegislation/Statutes/HTML/BySection/Chapter_15A/GS_15A-266.3A.html" target="_blank">here</a>. </span><br />
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<span style="font-family: Times, 'Times New Roman', serif;">The Supreme Court heard oral arguments this week surrounding a similar law in Maryland. <a href="http://www.businessinsider.com/maryland-v-king-and-supreme-court-2013-2" target="_blank">Click here</a> for a summary of the case. Justice Alito acknowledged</span><span style="font-family: Times, 'Times New Roman', serif;"> </span><span style="font-family: Times, 'Times New Roman', serif;">the importance of this case:</span><br />
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<a href="http://static2.businessinsider.com/image/512ce99769beddd77200000c-3000-2253-400-300/dna%20swab.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" height="240" src="http://static2.businessinsider.com/image/512ce99769beddd77200000c-3000-2253-400-300/dna%20swab.jpg" width="320" /></a><span style="background-color: white; line-height: 22px;"><span style="font-family: Times, Times New Roman, serif;">"I think this is perhaps the most important criminal procedure case that this Court has heard in decades..This is what is at stake: Lots of murders, lots of rapes that can be solved using this new technology that involves a very minimal intrusion on personal privacy."</span></span></blockquote>
A<span style="font-family: inherit;"> minimal intrusion on personal privacy isn't necessarily the concern. Unlike the case where a <a href="http://blog.ibsenlaw.com/2013/02/waiting-for-missouri.html" target="_blank">catheter was used to test for marijuana use</a>, having the inside of your mouth swabbed is not much of an intrusion. The intrusion is the government having a person's DNA sample before being </span>convicted<span style="font-family: inherit;"> of any crime. Justice Scalia had an interesting point after hearing that Maryland obtained 42 convictions based upon samples taken from people arrested in their state</span><span style="font-family: inherit;">: </span><br />
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<span style="background-color: white; line-height: 22px;"><span style="font-family: inherit;">"Well, that’s really good. I’ll bet you if you conducted a lot of unreasonable searches and seizures, you’d get more convictions, too. That proves absolutely nothing."</span></span></blockquote>
It is an interesting term for the Supreme Court and the Fourth Amendment. Between this case and the Court hearing whether <a href="http://blog.ibsenlaw.com/2013/02/waiting-for-missouri.html" target="_blank">blood draws can be taken without a warrant</a>, the <a href="http://blog.ibsenlaw.com/search/label/4th%20amendment" target="_blank">Fourth Amendment </a>is being challenged this year.<br />
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<i>Mecklenburg Criminal Law Updates Provided By Law Office of Carilyn Ibsen PLLC (888)543-2427</i><br />
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Carilyn Ibsenhttp://www.blogger.com/profile/05609984888379211315noreply@blogger.com0