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The North Carolina Court of Appeals Tuesday upheld a Superior Court ruling throwing out three DWI convictions of a Fayetteville, North Carolina woman. The woman says that guilty pleas were entered on her behalf in 2006, but she never agreed to plead guilty and she says that she was not in court when she was convicted of the charges without her consent.

Last January, a Cumberland County judge overturned three prior convictions on a Fayetteville, North Carolina woman’s record that had been entered in 2006. The woman reportedly was charged with driving while impaired on three separate occasions in 2004 and 2006. Court records reportedly indicated that convictions were entered on all three charges in November 2006. When the woman was arrested in 2009 on suspicion of DWI, she was facing a potential felony DWI offense.

The Superior Court judge reportedly found serious flaws in the court records that raised questions about veracity of the court records. The judge considered the evidence presented, the legal arguments and the contents of the court records and overturned the prior convictions.

Prosecutors appealed that decision, arguing that the judge did not have jurisdiction to overturn the prior convictions. The Court of Appeals rejected that argument and upheld the lower court ruling. Prosecutors are considering an appeal to the state Supreme Court. If appealed, the North Carolina high court has discretion to accept or deny review of the appellate ruling.

This blog has recently discussed felony DWI charges under North Carolina law. Lawmakers are considering a proposal to make a third conviction for DWI within a 10 year time period a felony offense under the habitual DWI statute. Currently, a fourth conviction for DWI within 10 years can bring serious prison time as a habitual DWI offense. The Fayetteville woman challenged the prior convictions after being arrested in 2009 for an alleged DWI offense.

Source: Fayetteville Observer, “Appeals court says Cumberland County judge can overturn DWI convictions,” Paul Woolverton, April 3, 2013

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

A Manitoba Child and Family Services agency involved in an inquest into the brutal death of a toddler at a Winnipeg treatment centre for women wants the presiding judge punted from the case — a move which could ultimately derail the truth-seeking proceedings entirely.
Manitoba stories

Breathalyzer evidence is critical in any drunk driving case — and mandatory in a .08% charge.  Yet, as I've written repeatedly in the past, these machines are neither accurate nor reliable.  See, for example, How Breathalyzers Work — and Why They Don't, Inaccurate Breathalyzers Cast Doubt on 1,147 DUI Cases in Philadelphia and Report: Breathalyzers Outdated, Unstable, Unreliable.   

And in today's news:

JudgeThrows out Breath Machine Evidence

County judge in Pennsylvania rejects breath test machine as inaccurate beyond a certain range

Dauphin Co., PA.  Jan. 8 –A judge in Dauphin County, Pennsylvania last week delivered a bombshell decision finding evidence provided by breath machines to be inaccurate outside a narrow range. After hearing extensive testimony from expert witnesses, the Court of Common Pleas judge found it was not appropriate for charges of "high rate" driving under the influence of alcohol (DUI) be established by providing a printout from a machine displaying a high number. 

"The unvarnished facts of this case ultimately establish that the array of breath testing devices presently utilized in this commonwealth, and in particular the Intoxilyzer 5000EN device manufactured by CMI, Inc., as those devices are presently field calibrated and utilized in this commonwealth, are not capable of providing a legally acceptable Blood Alcohol Content (BAC) reading, which is derived from a defendant's breath, outside of the limited linear dynamic range of 0.05 percent to 0.15 percent," Judge Lawrence F. Clark Jr. ruled. 



In Pennsylvania, a separate "highest rate of alcohol" charge can be levied on a driver accused of having a BAC in excess of 0.16 percent. Enhanced penalties for this charge include a fine of up to 00 for a first offense and a minimum three-day stay in jail. A third offense carries a minimum one-year jail sentence.



Testimony offered at the hearing showed the manufacturer of the Intoxilyzer failed to follow state rules requiring the solutions used to calibrate the breath machines be certified by an independent lab. CMI creates its own samples in-house, according to CMI engineer Brian T. Faulkner.



"As a result of the evidence produced at the hearing, it is now extremely questionable as to whether or not any DUI prosecution which utilizes a reading from an Intoxilyzer 5000EN breath testing device could presently withstand scrutiny based upon the startling testimony of the commonwealth's own witness, Mr. Faulkner, at the hearing," Judge Clark wrote.



Since the machine did not follow state regulations, there was no way the court could determine whether the initial calibration of the machine was completed in a scientific and accurate manner. Moreover, the machine is only checked against samples of 0.05, 0.10 and 0.15 percent. 



"If you're calibrating from 0.05 to 0.15 and did these three points, you have the correlation coefficient, you've proven to me that your instrument works — definitely works between 0.05 percent and 0.15 percent. There's no data to say that it works at 0.16 percent. There's no data to say it works at 0.04 percent," Lee N. Polite, an expert in organic chemistry, testified.

Despite the unreliability of thse machines, they continue to constitute the main evidence against a citizen charged with DUI — and the only evidence when charged with having over .08% blood alcohol.
 

DUI BLOG

A judge in Brunswick County, North Carolina has thrown out a number of DWI cases after prosecutors ran into scheduling conflicts and asked the judge to delay the cases. In legalese, attorneys ask for a “continuance” when they need more time to investigate the case, or other issues arise. Late last month, prosecutors say that a Brunswick County Sheriff’s deputy had a scheduling conflict and would be unable to appear in a slate of North Carolina DWI cases.

At that time, the judge denied the request to delay the cases, and threw out charges against 16 people, primarily in DWI cases. Last week, prosecutors told the judge that a second deputy had a scheduling conflict and prosecutors asked the judge for a continuance in a number of cases where that deputy would need to testify.

The prosecutors say that the deputy had a training conflict. Last Wednesday, the judge dismissed 20 cases, again the charges primarily revolved around North Carolina DWI allegations.

Authorities in Brunswick County say that they intend to pursue the cases, even though the judge had thrown them out. Authorities are going through the motions to recharge each defendant, according to WECT-TV.

Anyone who has been accused of a crime knows that waiting for a case to move through the process can be frustrating. The judge reportedly has not indicated the basis for dismissing the charges in either event.

Generally, a criminal defendant has the right to confront witnesses at trial. Officers who allege that a driver was drunk on a specific date, for example, have to testify if a case goes to trial. The Constitution guarantees the right to a speedy trial, but the legal standards surrounding speedy trial rights are complex.

Source: WECT, “Judge dismisses dozens of DWI cases,” Ann McAdams, Dec. 19, 2012

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

Any criminal defendant has the right to defend against the charges in a court of law. Our system of criminal justice places burdens upon the government that are intended to protect the rights of the innocent against unreasonable government intrusion, and also to protect against making out court system seem like a sort of kangaroo court.

Monday, a judge in Mecklenburg County threw out charges of driving while impaired that had been filed against the former chief of the Charlotte Regional Visitors Authority. The man had been arrested on suspicion of DWI in May.

The process following the man’s arrest was flawed, the judge essentially ruled Monday. The man was put in jail, and a magistrate had given the accused an unsecured bond at 1:15 in the morning May 23. The judge ruled that following the magistrate’s decision at 1:15 a.m., the accused should have been released from custody within an hour, according to WCNC News.

The man sat in jail until 4:34 in the morning before authorities allowed his release. The judge ruled that the three hour delay was too long and dismissed the DWI charges.

Generally, a person accused of DWI faces allegations generated by the state. For instance, in a North Carolina DWI case, the arresting officer would be expected to testify as to the officer’s observations of the defendant. But a person who is detained for an unreasonable amount of time after being given unsecured bond is denied the chance to meet with people who are not associated with police. The loss of that opportunity can deny the person accused of drunk driving to have others testify to refute the officer’s opinion.

In North Carolina, DWI charges can come with two prongs. Most people know that the legal limit to drive is set at 0.08 percent BAC. But flaws with the testing can produce inaccurate results. Similarly, a person who is unreasonably denied access to gathering evidence in defense of the charges may certainly be denied a fair opportunity to present a defense.

In the recent Mecklenburg County case, law enforcement claims that the man accused of DWI refused to submit to a breath test. The state apparently was relying solely upon the arresting officer’s opinion that the man had been drinking before driving.

The charges arose after an alleged hit-and-run crash in stop-and-go traffic in Interstate 77. Authorities say that another person called 911 after the alleged fender bender, claiming that the defendant had said everything was okay and drove away from the scene. The hit-and-run charge remains pending, as the judge’s dismissal only pertained to the DWI charge.

Source: WCNC, “Judge dismisses DWI charge against CRVA’s former chief executive,” Gary L. Wright, Nov. 5, 2012

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

A God’s Lake Narrows man has been sentenced to four years in prison for bludgeoning and stabbing his girlfriend to death, a sentence that didn’t fit the crime, but in this case, fit the offender, a Thompson court was told Monday.
Manitoba stories

A Manitoba judge has slammed the provincial government for showing “demonstrable bad faith” in recent dealings over salaries and benefits for provincial judges.
Manitoba stories

Last week, a Superior Court judge in Forsythe County threw out charges of driving while impaired that had been lodged against a 43-year-old North Carolina man. Police claimed the accused had been driving drunk on July 12, 2010. To support the charges, prosecutors were relying upon evidence that had been seized in a blood draw that was taken more than an hour after the DWI arrest.

A Winston-Salem police officer says a truck pulled into a gas station around 11 p.m. on the night of the arrest. Law enforcement claims the man accused of driving the truck was impaired that evening. The man says he was never driving the truck, but law enforcement claims he was found in the driver’s seat.

The owner of the truck was reportedly also in the vehicle and was charged with aiding and abetting DWI. Prosecutors dropped the aiding and abetting charge against the truck owner last year.

Court documents allege that law enforcement made the man accused of driving the truck perform a series of field sobriety tests and then requested that the man submit a breath sample for testing. The man reportedly refused the Breathalyzer test and police brought him to a hospital. Court papers show the police requested the man provide a blood sample, which he refused.

The man accused of DWI says police officers used excessive force to obtain a blood sample after the DWI test refusal. The North Carolina man says law enforcement sat on him in the hospital bed, shoved his head into a pillow, while a nurse drew blood from him. The judge heard the evidence and agreed that the blood sample was obtained in violation of the defendant’s rights. The judge threw the case out of court. The prosecutor is reportedly appealing the trial court decision.

Source: My Fox 8, “DWI Charge Dropped After Man Says Winston-Salem Officer Sat on Him,” Michael Hewlett of the Winston-Salem Journal, Jan. 13, 2012

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

A Manitoba judge has recommended the province consider strengthening its laws allowing potentially dangerous mental health patients to be forced into treatment facilities against their will.
Manitoba stories

The North Carolina Judicial Standards Committee has brought misconduct allegations against a judge after he suppressed evidence in a DWI trial. The committee looked into the suppression and accuses the judge of signing an order that he knew or should have known was “false or misleading.” The judge denies that he made any intentional misrepresentations when a judicial commission investigator looked into the matter. The judge believes all representations he made in the matter were truthful and accurate. The judge reportedly admits that some inaccuracies about the case were included in the prepared order.

In September, a man accused of violating the North Carolina DWI law pled guilty before the judge. Law enforcement alleged the accused driver showed a blood alcohol content reading of .17 during the DWI investigation. The judge sentenced the man to 12 months probation, 48 hours of community service and a fine.

The judge signed an order suppressing the DWI test results. The order reportedly was prepared by the attorney for the accused in the case. The prosecutor subsequently filed a complaint with the judicial commission concerning the suppression order. The judicial commission is expected to hold a hearing on the matter.

Under North Carolina law the legal limit to drive is set at .08. Readings of .08 or greater are presumed to show impairment for a driver. But North Carolina DWI law is more complex. A reading of .15 or greater creates harsher consequences for a person accused of DWI.

A person convicted of DWI with a breath test result of .15 or greater is subject to the requirement of installing an ignition interlock in their car. The interlock has a breath testing device that prevents drivers from starting their car if the driver has been drinking.

Source: Charlotte Observer, “Judge denies misconduct charges in DWI trial,” Gary L. Wright 6 May 2011

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