Roberts Law Office, PA

Law Enforcement Officer’s Mistake Causes Suspension to be Set Aside

Edd Roberts — Mon, 28 Nov 2011 23:42:36 +0000

In a recent case from our Supreme Court, the Court affirmed the decision of the NC Court of Appeals to set aside a one (1) year NC DMV suspension for Petitioner Lee’s refusal to submit to a chemical analysis of his breath in a DWI criminal case (Richard J. Lee v. William C. Gore; A18A10 (NCSC 2011)). The law plainly states that if a person refuses to submit to a chemical analysis of his/her breath, “the law enforcement officer and the chemical analyst shall without unnecessary delay go before an official authorized to administer oaths and execute an affidavit(s) stating…results of any tests given or that the person willfully refused to submit to a chemical analysis” N.C.G.S. § 20-16.2 (c1). The law enforcement officer in this case presented affidavits that lacked correct documentation that Petitioner Lee’s refusal was in fact willful. Because of this clerical mistake, Petitioner Lee was able to successfully argue that the letter of the law was not followed regarding his refusal and therefore the one (1) year suspension imposed by NC DMV should be set aside. The Court agreed.

Law Enforcement Can Enter Your Home Without a Warrant

Edd Roberts — Fri, 17 Jun 2011 21:37:29 +0000

What was once sacred, “a man’s castle,” just lost considerable ground in regards to our Fourth Amendment right against unreasonable searches. A recent U.S. Supreme Court decision, deriving out of Kentucky, gives law enforcement officers the authority to breakdown the door and enter without a search warrant, if they hear sounds that appear to be someone destroying evidence, after first knocking on the door (Kentucky v. King, October Term (2010)). Generally, law enforcement officers may not enter a home, unless they have 1) search warrant, 2) permission from the owner, or 3) illegal contraband in plain view. The only exceptions to this long standing rule, were an emergency situation that made unauthorized entry into a home necessary or a law enforcement officer was pursuing a fleeing suspect and observed the suspect enter a particular home, apartment or building.

The new case law, provides law enforcement officers with more leeway to break into residences or buildings in search of illegal drugs. However, with every new power comes the potential for abuse. If a law enforcement officer is operating under good faith that he/she heard what they believe was evidence being destroyed, the fact that no such activity is found, will not exempt prosecution of other contraband found. This case undoubtedly gives law enforcement officers an easy way to ignore our Fourth Amendment right.

Law Enforcement Search of Vehicles Narrowed

Edd Roberts — Wed, 04 May 2011 01:06:50 +0000

New search and seizure law requires law enforcement officers to limit their search of a vehicle incident to arrest, to areas within the immediate control of the person arrested for weapons and only for evidence of the crime for which the person is being arrested. When defining what constitutes immediate control, the Court states the area from within which a person might gain possession of a weapon or destructible evidence. The case in question, involved a person arrested for driving with a suspended license. He was handcuffed and locked in the back of the patrol car before officers searched his car and found cocaine in the pocket of a jacket on the backseat. The arrest took place after the individual had exited his vehicle. He was 10-to-12 feet from his vehicle at the time the officer ordered him to stop. Because the individual had no access to the vehicle at the time of the arrest, being 10-to-12 feet away from the vehicle and no evidence regarding the charge of driving with a suspended license was likely to be found in the vehicle, the cocaine seized was suppressed (Arizona v. Grant, 129 S.Ct. 1710 (2009)).

Lab Mistake Cost the State the Conviction

Edd Roberts — Wed, 04 May 2011 01:04:38 +0000

In a felony trafficking case of opium a veteran chemist of some thirty-four years with the State lab, admitted under oath that he had not tested all of the pills submitted. The chemist went on to state under oath that he had conducted a chemical analysis on about half of the items submitted and the remaining tablets were identified solely by visual inspection based on knowledge learned from medical journals regarding identity of prescribed medication (State v. Ward, 364 N.C. 133, 694 S.E.2d 738 (2010)). Defense counsel was quick to point out that the law for trafficking counts of controlled substances are based on specific amounts of drugs in one’s possession. Therefore, it is important to show that all the pills, that go into meeting the threshold amounts for trafficking charges, have been properly tested rendering a positive result for a particular controlled substance. The Court agreed and held that a visual inspection was insufficiently reliable to support his expert opinion that all the pills were in fact controlled substances (Id at 147, 694 S.E.2d at 747).

Alcohol Concentration of .08 or Greater Does Not Automatically Equal a Guilty Verdict

Edd Roberts — Wed, 04 May 2011 00:59:03 +0000

In North Carolina the alcohol concentration evidence in DWI cases, is only prima facie evidence that one was impaired while driving. It does not create a legal presumption that (automatically) requires the fact finder to find guilt (State v. Simmons, 698 S.E.2d 95 (2010) citing State v. Narron, 193 N.C. App. 83, 666 S.E. 2d 865 (2008)). Every DWI case, must be considered on it’s own individual facts from start to finish. The Court must consider the totality of the circumstances that encompasses the DWI case, so as to render a fair and impartial ruling. That is why it is crucial to have an experienced trial attorney help you sort through the facts of your particular case and figure out all triable issues to bring before the Court.

DWI-Asthma Not a Defense?

Edd Roberts — Sat, 25 Jul 2009 22:54:31 +0000

Opinion testimony by the arresting officer that asthma has no effect on a person’s ability to provide a sufficient breath sample was admitted over defendant’s objection by the Judge in the defendant’s jury trial. Additional evidence offered without objection was that the defendant’s inability to provide a breath sample was an attempt on behalf of the defendant to manipulate the Intoxilyzer. The refusal to submit to an Intoxilyzer breath analysis was held by the NC Court of Appeals as properly admitted as substantive evidence of a defendant’s guilt of driving while impaired. The NC Court of Appeals reviewed the objection to the Officer’s opinion on asthma as it relates to the Intoxilyzer under the plain error rule because defense counsel only raised a general objection and failed to move to strike the officer’s testimony. Although the Court ruled that the admission of the Officer’s opinion is improper, lacks foundation, and is inadmissible the Court under the plain error standard deemed that the opinion in light of all the evidence would not have changed the outcome had it been excluded in the defendant’s trial (State v. Wilson 185 N.C. App. 161, 647 S.E.2d 688 (2007)).

Reasonable Suspicion for Vehicle Stops Extended

Edd Roberts — Sat, 25 Jul 2009 22:53:33 +0000

No more is safe driving and having the vehicle you are driving in proper working order enough to avoid being stopped. If you are driving a vehicle where the registered owner is revoked, law enforcement can pull you over under new law. The NC Court of Appeals in a first impression ruling stated that law enforcement has reasonable suspicion to make an investigatory stop when the vehicle is registered to an owner with a revoked license, absent evidence that the driver is not the owner (State v. Hess, 185 N.C. App. 530, 648 S.E. 2d 913 (2007)). Generally under the fourth Amendment, an investigatory stop must be justified by “reasonable suspicion, based on objective facts, the individual is involved in criminal activity” (State v. Watkins, 337 NC 437, 446 S.E. 2d 67 (1994)). That bright line rule just got a little bigger and our protective freedoms from unreasonable stops and searches under the 4th Amendment just got a little smaller.

Nervousness Not Enough for Continued Detention by Law Enforcement

Edd Roberts — Sat, 25 Jul 2009 22:52:52 +0000

Being noticeable nervous is not justification on its own to detain somebody according to a recent ruling from the NC Court of Appeals. The case in question, involved the stop of a vehicle based on the defendant’s weaving in his lane of travel and suspicion of driving while impaired. The police officer after stopping the vehicle and interacting with its driver noticed no odor of alcohol as the defendant produced his driver’s license and the car rental agreement. The vehicle being driven was a rental. The police officer decided only to cite the defendant with a warning ticket. However, the police officer noticed the defendant had a rapid heartbeat and was sweating at the time he cited the defendant with the warning. Subsequently, he decided to detain the defendant to investigate further. The police officer acquired consent from the defendant to search the vehicle and found trafficking amounts of marijuana in the trunk. The defendant was never told he was free to leave after being issued the warning. In fact, he was detained in the police officer’s patrol car while the police officer searched his vehicle. The Court ruled that the police officer must have articulable and reasonable suspicion in order to justify further delay since the encounter was not consensual. In looking at the totality of the circumstances, nervousness alone exhibited by the defendant’s rapid heartbeat and noticeable sweating was not sufficient enough to establish articulable and reasonable suspicion. Therefore, the continued detention of the defendant was unconstitutional and the defendant’s consent to the search of his vehicle was involuntary (State v. Myles, 654 S.E.2d 752 (2008)).

Magistrate’s Mistake Doesn’t Equal a Dismissal in a DWI

Edd Roberts — Sat, 25 Jul 2009 15:00:48 +0000

The DWI laws in North Carolina continue to get tougher and more friendly to the government. In a recent case, where a Magistrate was found to have violated the defendant’s rights by setting a secured bond on a DWI charge without making necessary findings to support setting the bond, the NC Court of Appeals said no irreparable harm was done. The case turned on the Court’s interpretation of access. No question, time is crucial in DWI cases as far as collecting evidence to prepare a defense. Once the State has collected it’s evidence the defendant is advised that he or she can on their own have an independent test done to determine his or her level of impairment. Further, access to family and friends should not be impeded by the State so as to allow the defendant timely collection of evidence to support a defense to the DWI charge. The Court stated in this case that the secured bond set by the Magistrate without necessary findings did violate the defendant’s rights. However, the Court maneuvered around established case law and ruled even though the defendant’s rights were violated, the defendant did not show that the violation created “irreparable prejudice” to her case. The Court stated that the defendant saw her friends waiting for her at the detention center and failed to ask them to come witness her Intoxilyzer tests. Further, she had her cell phone with her and was allowed to use it to retrieve numbers and call a witness. Based on these two factors the Court concluded that the defendant didn’t take advantage of the opportunity to collect evidence in her defense. Therefore, there is no showing of irreparable prejudice. However, the problem with that reasoning is defendants, even the well-educated, are somewhat in shock and intimidated by the whole process of being taken from the security of their car, arrested, placed in handcuffs, then taken to the County jail. Preparing a defense is not the first thing that comes to mind. Most defenses are realized by skillfully trained trial lawyers who discover this information from interviews with family members and friends that interacted with the defendant immediately after they were released and were still under the effects of alcohol. Hopefully for the preservation of our rights and fundamental fairness, this case law will be short lived (State v. Labinski, 654 S.E.2d 740 (2008)).