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In the last entry, we discussed a recent North Carolina DWI case that involved legal arguments and a trial before a jury, where the jury acquitted the defendant of DWI. The man says that a police officer sought to compel a blood draw without a warrant, claiming that an exigent circumstance existed to make the warrantless blood draw request sound under North Carolina law.

Prosecutors claimed that the rapid dissipation of evidence allowed the warrantless search. Ultimately, the case was resolved before a jury and not on the legal arguments before a judge.

Most states generally control their own DWI laws. But constitutional issues are matters for the courts and the U.S Supreme Court has binding authority on state courts on federal constitutional issues.

Several decades ago, the U.S. Supreme Court ruled in a DWI case involving a car accident that authorities did not need to obtain a warrant to obtain a blood sample. However, the high court is currently deciding whether a warrant is constitutionally required to obtain a blood sample in a routine DWI case. Currently 25 states allow law enforcement to compel a person to provide a blood sample if an officer requests one without a warrant and with probable cause to suspect the driver is under the influence.

A driver who refuses an implied consent test for impairment may face consequences, including a driver’s license suspension and an arrest on DWI allegations in North Carolina. Most (if not all) states use the legal concept of implied consent in DWI cases, and the recent U.S. Supreme Court decision could be instructive on whether or not the constitutional protections in DWI cases continue to differ under the warrant clause. The high court ruling is expected before the end of the term this summer.

Source: Winston-Salem Journal, “Winston-Salem man who alleged that police violated his rights acquitted of DWI,” Michael Hewlett, March 15, 2013

Greenville DUI Attorney Blog | North Carolina Underage Drinking Lawyer | Pitt County First DUI Law Firm

A man has fought his driving while impaired charges since his was pulled over in July 2010. The case has made its way to the North Carolina Court of Appeals, and back to court in front of a jury. The jury acquitted the man of DWI after trial.

The man says that an officer with the Winston-Salem Police sat on his chest to obtain a blood sample without a warrant during the DWI investigation. The man argued that the warrantless procedure was a violation of his constitutional rights.

In the recent North Carolina DWI battle, the man was originally convicted of DWI in Forsythe District Court, but appealed to Superior Court. There, the judge dismissed the charge. The case found its way to the North Carolina Court of Appeals, which reversed the Superior Court ruling and sent the case back down. The man took his DWI charge before a jury recently. The results of the blood sample were suppressed at trial.

The jury heard testimony about the alleged incident from July 2010. Police claim that a Winston-Salem Police officer visited a gas station to stop a car for an alleged taillight violation. That car was not associated with the DWI allegations. Instead, police claimed that after the officer let the driver with the broken taillight go, he noticed a truck parked at the gas station and ran its plates.

The officer says that the registered owner of the truck showed as having a suspended driver’s license and the cop looked to investigate that issue. Police say the owner was in the driver’s seat of the parked truck. However, the officer reportedly never found any keys to the parked truck.

Police claim that the driver was agitated, and that the officer suspected that the driver was under the influence of cocaine. The man ultimately was hauled down to the hospital for a blood test, leading to the legal arguments seeking suppression of the evidence.

When the case was remanded for trial, prosecutors argued that the man’s agitated state and alleged poor performance on field sobriety tests were sufficient to show that the man was under the influence that night.

The criminal defense argued before the jury that the man was agitated because his constitutional rights were being violated. Police never saw the man driving the truck, and never saw keys. The defendant says that he had not been driving at all. The man reportedly admitted to having a beer and a drink that night, but never drove. He says that he was retrieving change from the truck to pay for something at the gas station. A video of the incident reportedly shows that the officer never saw the man drive the truck.

Friday, a Forsythe County jury spent about an hour deliberating before returning a not guilty verdict on the DWI charge.

The issue of whether a police officer can compel a blood sample without a warrant in a routine DWI case raises an interesting constitutional issue, which the United States Supreme Court is currently considering. In the next entry, we will discuss that issue in more detail.

Source: Winston-Salem Journal, “Winston-Salem man who alleged that police violated his rights acquitted of DWI,” Michael Hewlett, March 15, 2013

Greenville DUI Attorney Blog | North Carolina Underage Drinking Lawyer | Pitt County First DUI Law Firm

A Manitoba company at the heart of a high-profile immigration debacle that led to the deportation of three hard-working Filipino men affectionately dubbed the ‘Three Amigos’ has pleaded guilty to breaking Canadian immigration-protection laws.
Manitoba stories

I’ve often been told, "Well, if he pled guilty he must have done it!"  This is wrong on so many levels that I don’t know where to begin…  

Certainly, in DUI cases, the reasoning is wrong as drunk driving is somewhat unique among criminal offenses.  There are two offenses (in most states carrying identical penalties), and most individuals arrested will be charged with both: (1) driving under the influence of alcohol, and (2) and driving with a blood-alcohol level of .08% or higher.

Problem #1:  Since individual tolerance varies, it is difficult to presume impairment from a blood-alcohol level.  Further, at what point does the driver know he is impaired?

Problem #2:  How does the driver know what his blood-alcohol level is when he’s driving?  Can he tell the difference, for example, between .07% and .08%?  (Well, you say, he shouldn’t have been driving if he was even close.  So do we convict citizens who are "close" to driving over the speed limit?)

But there are larger issues involving those who plead guilty to DUI — issues involving the increasingly coercive nature of the judicial system, as a respected retired federal judge has noted today:

Why Do Innocent People Plead Guilty?

Huffington Post, June 6 – Prison is Hell for the guilty; it is difficult to envision what it must be like for the innocent. Brian Banks is yet another story of a person not only wrongfully imprisoned, but imprisoned based upon his own "voluntary" act. He was exonerated after serving five years for a rape he did not commit. How and why do innocent people confess or plead guilty to crimes that they did not commit? Roughly 20 percent of those that have been exonerated confessed to the crimes with which they were charged and convicted. Most of those involved persons who had actually gone to trial, but we have no way of knowing how many there are who merely entered guilty pleas through bargains and never appealed as a result. Although we hear and read about criminal trials, the reality is that only about 5 percent actually go to trial and the balance are resolved by plea agreements…

What apparently happened here (based upon his version) is all too typical of what happens in the criminal justice system. I call it the "Ins of Court" — intimidation by the prosecution and incompetence by the defense. The defendant, frightened, most often poor, uneducated, a minority member is advised that a trial is likely to end with a conviction and a long sentence, whereas a plea will guarantee a much shorter sentence. Despite his protestations of innocence, the defendant seeks guidance frequently from an over-worked, underpaid defense lawyer who would much prefer a quick deal rather than a long drawn out trial. Of course, not all defense counsel fit that description. Many do not, but even the best and most devoted are required to put this draconian choice to their clients — a guaranteed short sentence versus a potentially long one — possibly life in prison.

The problem is further complicated by the fact that it is more difficult to set aside a guilty plea than a conviction after trial. Once a person has admitted guilt and spelled out the details of the crime sufficient for the court to accept the plea, the chances of reversing such convictions are very slight if not nil. Most do not try. Mr. Banks had the fortitude to continue his fight even after he had been paroled and was fortunate in eliciting a recantation from the complaining witness. Such instances are very rare. Thanks to the tenacity of the California Innocence Project it happened here.

The reality is that without plea bargains the entire criminal justice system would come to a halt. Charges would be tried ten years after they were made. The only solution is vigilance by all those involved. The prosecutor, defense counsel and the court must be satisfied of the defendant’s guilt before urging or accepting a plea. I recognize that there is no avenue to absolute certainty because the knowledge of guilt or innocence lies with the defendant, but all involved must strive not to imprison the innocent — even those who profess to be guilty.

It is common in drunk driving cases for the prosecution to offer the defendant a plea bargain, for example, of a guilty plea to the .08% charge with a dismissal of the DUI charge, and a promise of only two days in jail — with the understanding that if he goes to trial and loses, the judge will sentence him to 60 days in jail.  (Note: Most judges dislike trials, as they back up their busy caseloads, so are anxious to dispose of cases by plea — and inclined to punish those who "waste the court’s time".  Accordingly, it is often commonly understood in any given courtroom that the sentence will be far worse if you refuse the plea bargain offer and insist on your constitutional right to jury trial.)

So….The defendant thinks he is probably innocent and his attorney tells him that you has a good case:  in his opinion, he has a 50% chance of being acquitted on both counts.

What would you do?
 

DUI BLOG

A Little Black River First Nation woman has pleaded guilty to manslaughter in the beating death of a rising young aboriginal artist.
Manitoba stories

In January, a Millbrook High School student was killed in a car accident. North Carolina law enforcement agencies and the Department of Alcohol Law Enforcement conducted investigations into the circumstances surrounding the tragic fatal car accident.

Investigators had said that an underage drinking party led to the tragic fatal accident, and a wide number of underage alcohol offenses where brought against several people and DWI charges were filed against a 16-year-old followed the extensive investigation. This blog previously discussed several of the charges filed in prior posts.

One of the Raleigh men charged in the aftermath of the fatal car accident pled guilty Wednesday to charges leveled in the aftermath of the ALE investigation.

ALE agents had alleged that the 21-year-old Raleigh man had purchased a bottle of rum for a 16-year-old who was charged with driving while impaired, felony death by motor vehicle and other offenses on allegations the he was driving the car involved in the fatal accident.

Authorities say the 16-year-old registered a 0.29 percent blood alcohol concentration in a chemical test conducted after the car accident. A young woman who was riding as a passenger in the car died in the crash.

The 21-year-old Raleigh man who was charged with purchasing the rum reportedly pled guilty this week to two counts of purchasing alcohol, and was sentenced in criminal court Wednesday. The judge reportedly imposed 12 months of probation, community service, a fine and court fees in sentencing the Raleigh man.

Underage alcohol charges were filed against several other people ranging in age from 15 to 18-years-old after the investigation.

Source: WRAL, “Man pleads guilty to buying alcohol in fatal teen DWI crash,” May 9, 2012

Greenville DUI Attorney Blog | North Carolina Underage Drinking Lawyer | Pitt County First DUI Law Firm

A former North Carolina state trooper recently took his drunk driving charges to trial. The man was forced to retire after suffering an off-duty back injury. The 37-year-old reportedly says that he felt sick and was experiencing back pain Jan. 24, 2011.

He reportedly says that he took two prescribed medications to help him sleep and to control the pain. It appears that those two medications later became the basis for North Carolina DWI charges against the former trooper.

The man says that he remembers taking the prescribed codeine around 3:30 in the afternoon and an Ambien pill around 7:30 in the evening before going to bed that January night. The next thing that he remembers, according to the evidence at his DWI trial, is waking up in a magistrate’s office wearing his pajamas and pink slippers.

Prosecutors alleged that the man was driving a couple hours after he took the prescribed Ambien tablet and was in a car accident. The woman who was also in the crash says that the retired trooper told her a dreamlike tale about a strange investigation involving disguised cars, alcohol lights, helicopters and officers crashing into erratic drivers in some sort of crack down. The woman claims that the retired trooper showed his badge, but later said that he was retired.

The trooper was charged with impersonating an officer and DWI related to the alleged incident. Evidence was presented at trial Monday in Orange County District Court. The judge found the former trooper not guilty of impersonating an officer.

The judge found that the accused had duly admitted that he was retired and did not try to take advantage of his claim that he was an officer when he had displayed the badge. In acquitting the accused of the impersonation charge, the judge also said, “I believe the defendant was not in the state of mind to form criminal intent,” according to the Burlington Herald-Sun.

However, the judge did not acquit the defendant of the DWI charge. The judge reportedly reasoned that the defendant had not communicated with medical professionals about his codeine prescription when he obtained a later prescription for Ambien. The judge found the former trooper guilty of DWI related to the prescription medications.

The man was sentenced to a suspended 30 day jail term, with a fine, fees, court costs and community service. The man’s driver’s license was also taken, but he may be able to obtain limited driving privileges, according to the Herald-Sun.

Source: Burlington Herald-Sun, “Ex-trooper guilty of DWI,” Beth Velliquette, April 24, 2012

Greenville DUI Attorney Blog | North Carolina Underage Drinking Lawyer | Pitt County First DUI Law Firm

A Manitoba man has admitted responsibility for a
decade old fire that destroyed one of Steinbach’s most
beloved landmarks.
Manitoba stories

The trial lasted eight days. At the conclusion the Wake County jury deliberated for roughly 12 hours before finding a former doctor guilty of involuntary manslaughter, felony death by motor vehicle and driving while impaired. Two jurors refused to convict the former doctor of murder in the North Carolina DWI car accident case.

Eighteen months ago, the former doctor allegedly drove his Mercedes through North Raleigh streets after drinking at the Raleigh Country Club. The former doctor reportedly was involved in an accident that claimed the life of a 20-year-old Carolina Ballet apprentice.

Law enforcement had claimed the former doctors alcohol content was .19 based upon a law enforcement alcohol test. One juror was troubled by a hospital test that showed a blood alcohol level of .24. The juror says he did not trust the accuracy of the hospital alcohol reading. Nonetheless, the juror was one of twelve that returned the guilty verdicts.

Two jurors that held out for acquitting the doctor of the more serious murder charge also reportedly questioned the accuracy of the blood tests, but also voted to find the man guilty of the DWI charge.

Prosecutors had argued to the jury that the man should be convicted of second degree murder. They had the burden to prove the former doctor acted with malice, or that he drove recklessly with the knowledge that injury or death would likely result. Two of the jurors held fast that the prosecutor did not meet the burden of proof.

Had the jury convicted the man of second degree murder, he would have faced up to nine and a half years in prison.

A defendant in North Carolina cannot be sentenced for both involuntary manslaughter and felony death by motor vehicle convictions arising out of the same incident. The judge sentenced the man on the more serious conviction for felony death by motor vehicle. The judge imposed at least three years in prison at the sentencing hearing. The man could spend up to four and a half years in prison.

Source: News Observer, “Raleigh doctor gets 3 years but no murder conviction,” 2 Mar 2011

Greenville DUI Attorney Blog | North Carolina Underage Drinking Lawyer | Pitt County First DUI Law Firm

A second trial began Friday for the former president of the Manitoba Hells Angels, who might walk free shortly after the trial even if he’s convicted and handed a lengthy sentence.

Winnipeg Sun – Manitoba