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It is no secret that an arrest for driving while impaired in North Carolina can have serious consequences for the driver accused of drunk driving. When the holder of a commercial driver’s license is arrested for DWI, the issue can have significant impact on the driver’s livelihood. However, the North Carolina Court of Appeals recently ruled that a one-year revocation of a CDL following a DWI arrest is sufficiently punitive to bar a later prosecution in criminal court on DWI charges.

On the Fourth of July in 2010, a truck driver was arrested for DWI while driving a non-commercial vehicle in Duplin County, North Carolina. Following that arrest, a Duplin County Magistrate seized the trucker’s CDL and revoked the commercial license for 30 days under North Carolina law.

The driver reportedly did not challenge that revocation order within the 10 day time frame to contest the revocation. Slightly more than two weeks later, the man received notice from the state that his CDL was disqualified for one year under North Carolina law.

Generally, courts have construed such license revocations as civil in nature. By August, the man had paid the civil revocation fees and retrieved his CDL, but he was prohibited from lawfully driving a commercial vehicle until the end of the CDL disqualification, which was one year after the DWI arrest on July 4, 2011. The man was transferred to a different job during the summer of 2010, but eventually lost that job in a staffing cut.

The man later challenged his DWI charges in criminal court, including a DWI defense argument that the CDL revocation of one year bars a later prosecution for DWI in criminal Court. In the next post, this blog will continue discussing how the courts have handled the Double Jeopardy argument.

Sources:

• Jacksonville Daily News, “Court: Prosecuting truck drivers who lose CDL for DWI is double jeopardy,” Lindell Kay, Feb. 24, 2013
• North Carolina Court of Appeals, “State v. McKenzie, No. COA12-436, Jan. 15, 2013

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

In the last post, this blog began discussing a recent ruling in the North Carolina Court of Appeals, which found that a prosecution for DWI following a one-year commercial driver’s license revocation under North Carolina law is barred by the Double Jeopardy clause of the Constitution.

In late August 2011, the man sought to have the criminal DWI charges dismissed. One of his criminal DWI defense arguments was that the CDL revocation was sufficiently punitive to be a criminal punishment, and therefore barred prosecution of the DWI charges under the Double Jeopardy Clause of the Constitution (the man raised a separate argument, which was not decided in the appellate court ruling).

The Duplin County District Court agreed and dismissed the DWI charges. Prosecutors appealed to Superior Court. There, the DWI charges were reinstated. The man took the issues to the Court of Appeals.

In January, a three judge appellate panel reversed the Superior Court ruling, finding that the one-year license revocation was sufficiently criminal in nature to bar the state from pursuing the DWI charges in criminal court. The appellate panel recognized that shorter license revocations have generally been deemed civil in nature, and therefore do not act to bar a criminal prosecution under the Constitution. However, the length of the revocation-one year-is lengthy enough to constitute a criminal punishment.

Prosecutors reportedly are planning to seek a stay of the appellate ruling. The ruling was a split decision, with two judges ruling in favor of the criminal defense argument and one judge dissenting. The ruling is expected to be considered in the North Carolina Supreme Court.

Sources:

• Jacksonville Daily News, “Court: Prosecuting truck drivers who lose CDL for DWI is double jeopardy,” Lindell Kay, Feb. 24, 2013
• North Carolina Court of Appeals, “State v. McKenzie, No. COA12-436, Jan. 15, 2013

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

We’ve dedicated several posts in the last month to the tragic death of Yeardley Love and the subsequent trial of George Huguely, and we certainly don’t want to repeat ourselves.

However, a recent Washington Post article entitled “Huguely trial highlights alcohol abuse at colleges, universities” could not go unposted. The article notes that binge drinking is more prevalent on college campuses than ever.

An NIAAA report released in 2009 shows that alcohol-related deaths of people ages 18 to 24 were up 14 percent to 1,825 in 2005, compared with roughly 1,605 in 1998.

Based on this statistic, Huguely’s behavior was extreme, but his drinking was not extraordinary. His conviction sheds light on today’s college  culture and proves that dangerous drinking cannot be ignored any longer.

Choose Responsibility Blog

For those of you who follow this blog, you’re familiar with the steady erosion of constitutional rights in drunk driving cases — what I refer to as "The DUI Exception to the Constitution".  See, for example, Are DUI Roadblocks Constitutional?, Forced Blood Draws by Cops: Constitutional?, DUI and the Disappearing Right to Counsel, Believing You Have Constitutional Rights in a DUI Case Can Be Dangerous, The Disappearing Right to Jury Trial…in DUI Cases and Who Cares About the Rights of Those Accused of Drunk Driving?  

The right to jury trial is one of many constitutional rights quietly disappearing in MADD’s "War on Drunk Driving"….

New DUI Law Wasn’t Vetted


Phoenix, AZ.  May 8 – Two big, emotional issues collided at the Legislature: the scourge of drunken driving and the right to trial by jury.

But you didn’t know.

First-time, non-extreme DUI defendants have lost the right to request a jury trial.  

But the public didn’t find out until after Gov. Jan Brewer signed the bill.

Is this a good move or a bad one? What does it mean for public safety? For justice? How does it square with the state Constitution?

We never had a chance for debate.  Like so much legislation this year, it all happened too fast, too far under the radar.

The restriction on jury trials was a last-minute amendment to Senate Bill 1200, which dealt with penalties for driving under the influence. It was part of the onslaught of bills in the pell-mell race to end the session on April 20.

Here was legislation about core values. We should have had a chance to explore them…

As Edmund Burke once said, "All that is needed for the triumph of evil is for enough good men to do nothing."
  

DUI BLOG

For nearly 7 years I’ve been blogging about the inaccuracy and unreliability of breath-alcohol testing machines.  See, for example, How Breathalyzers Work (and Why They Don’t), Why Breathalyzers Don’t Measure Alcohol and Report: Breathalyzers Outdated, Unstable, Unreliable.  

So if they’re so inaccurate, how can prosecutors convince juries to convict based upon these machines?  Well, usually they don’t have to: the law in most states requires the judge to instruct the jury that the machines are presumed to be accurate!  See DUI and the Presumption of Guilt. 

And if that presumption might be rebutted by damning facts to the contrary, well….

DC Prosecutor Under Investigation for Unethical Behavior in Prosecution of Drunk Driving Cases

Wash, DC.  May 10 – FOX 5 has learned at least one prosecutor in the D.C. Office of the Attorney General is under investigation. The Office of Bar Council is looking into claims of unethical behavior in the prosecution of drunk driving cases.

As many as a half a dozen police officers and defense attorneys have been interviewed so far.

No one would talk about the investigation on the record Tuesday. In fact, the Office of Bar Council, which is the city agency that investigates attorneys, wouldn’t even confirm an investigation.

But sources familiar with the probe say at least one prosecutor is under investigation for allegedly asking police officers to lie under oath on the stand.

But it goes deeper than that.

In the last several months, three D.C. Police officers, the Fraternal Order of Police along with three defense attorneys, have publicly questioned the behavior of prosecutors in the D.C. Office of the Attorney General.

Officers Ben Fetting, Andrew Zabavsky and Jose Rodriguez even took their stories to the D.C. City Council.

Back in February, an affidavit was prepared by the FOP and sent to the Inspector General in a request for an investigation.  It reads in part:  

“Both Officer (Jose) Rodriguez and (Andrew) Zabavsky were advised by the (Office of the Attorney General) to limit their testimony at DUI trials with regards to the problems with the Intoxilyzers.

“They were told not to answer questions about when they became aware of the problems with the equipment and told to say that they were not familiar with the problems or investigations even if they did know the answer. Both officers indicated they were unwilling to alter their testimony or perjure themselves.”

Additionally, according to the union:

“On September 27, 2010, Officer (Ben) Fetting was scheduled to testify in a DUI trial … Attorney Tamara Barnett of the (Office of the Attorney General) suggested that Officer Fetting not answer certain questions about the certification of the Intoximeters. Officer Fetting declined and when questioned … answered truthfully that he was aware that the Intoximeters had not been approved by the (Office of the Chief Medical Examiner).”…

Sources familiar with the probe say the Office of Bar Council is also looking into allegations prosecutors used scores from an uncertified breathalyzer in order to obtain guilty pleas in drunk driving cases…

The misconduct allegations began to surface after city officials revealed a little over a year ago the breathalyzers used by D.C. Police were not properly calibrated, calling into question thousands of convictions.

FOX 5 contacted the Office of the Attorney General Tuesday, but an official at the office declined to comment.
 

 Whatever it takes to win…

(Thanks to attorney Matthew S. Kensky of Fairfax, Virginia.)
 

DUI BLOG

A Manitoba judge who made controversial remarks about a rape victim’s attire and readiness to party has been “reassigned” off a relatively high-profile manslaughter case.

Winnipeg Sun – Manitoba

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

A Southport, North Carolina man was pulled over by law enforcement in Kure Beach last year. Police had received a tip that a man was driving a vehicle without one of its front tires. An officer responded to investigate. He claims that he saw the North Carolina man driving an SUV on three tires and one front rim.

The officer claims he immediately smelled the odor of alcohol after making an investigatory stop of the SUV. Police allege the driver slurred his speech and had glassy red eyes. The driver allegedly admitted drinking and having taken Lorazapam during the police investigation. Police subjected the driver to several field sobriety tests, which were video recorded. Police say the man did not perform well in the tests and hauled the driver to the Carolina Police Station. At the station the man blew a .06 in his breath test. The man was charged on allegations that the driver had violated North Carolina DWI law.

Police claimed that the man was under the influence of Lorazapam as well as having a .06 blood alcohol concentration while operating a motor vehicle. The man was charged with DWI after the allegations arose in January, 2009.

The man exercised his right to trial. He waited for nearly a year-and-a-half for the case to go to trial. The matter was taken before the judge. After hearing the evidence against the accused the judge rendered his ruling. The court found the driver not guilty of DWI.

Police claim the man has previously been arrested after drinking alcohol and taking prescription drugs, but the charges were dropped in that case. The man reportedly has three prior DWI convictions.

Source: WWAY, “ONLY ON 3: Obviously under the influence, former Mayor’s son found “not guilty,” Joe Mauceri, 6 Oct 2010

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

Jury selection began yesterday in a DWI related murder charge brought against a former North Carolina doctor. Twelve jurors were chosen and as the parties were selecting alternates this morning when the trial was abruptly halted. The prosecutor asked to delay in the North Carolina DWI trial to allow the matter to return the grand jury.

The state proceeded to trial with a bad indictment. The defense apparently did not agree to proceed on information. The prosecutor will have to take the matter back to a grand jury in order to proceed on a charge of second degree murder related to an alleged DWI crash resulting in death.

The indictment did not include pertinent language regarding malice, which is the basis of the prosecutor’s second degree murder charge. The judge reportedly granted the prosecutor’s request for a delay in the matter.

North Carolina law allows prosecutors to attempt to prove malice in a DWI related second degree murder charge based upon evidence that the accused intended to drive in a reckless manner with knowledge that injury or death would likely result from the driving conduct. The former doctor reportedly has been previously charged with driving under the influence of alcohol.

The case arose after an alleged incident the evening of September 11, 2009. Police claim the 43-year-old doctor spent time at a country club and later drinking at a tavern. After leaving the establishments, the doctor allegedly drove on Strickland Road in Raleigh at roughly two times the posted speed limit. According to the charges against him, he was driving with a blood alcohol content more than twice the North Carolina legal limit.

Police say he crashed his Mercedes-Benz into the rear end of a car driven by a 20-year-old woman. She reportedly died in the accident. The DWI related charges included the flawed indictment for second degree murder.

The matter now returns to the grand jury.

Source: News and Observer, “Snag sends Cook murder case back to grand jury,” Anne Blythe 2 Nov 2010

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