Successful Arguments (My War Stories)

A favor for a friend

I was referred to case by an attorney friend who had gotten a new job, and initially it looked like a difficult case to win. My client had run into one of the metal barriers in the median of I 40, and had given the police a plethora of evidence that he was impaired. He also tested nearly double the legal limit of .08. But fortunately for him, there were several police officers who arrived at the scene. I have found in that situation that occasionally one police officer believes that the other police officers have done the investigative work, and so sometimes the whole job doesn't get done. In this case, I had a judge that I had assisted in making a Trexler argument when he was a defense lawyer. I am often called on for my expertise by other lawyers, and I always tried to be helpful and provide them with information. In this and many other ways I try to repay the kind souls that helped me when I was a young lawyer.

In Trexler, the North Carolina Supreme Court ruled that the defendant's admission that he was driving is not sufficient to prove he was driving without corroborating evidence. They then listed the evidence they would consider corroborating, including that it was the defendant's vehicle, that there was no one else on the scene, and that there was no other explanation for how the wreck happened.

In this case, I had thrown out some arguments so that the district attorney could sink their teeth into those, but the only argument I thought could win was an argument based on Trexler or an argument based on reasonable time. The North Carolina driving while impaired statute requires that the defendant be impaired by alcohol or other impairing substances consumed before or during the driving. That impairment can be demonstrated by a test conducted at any relevant time after driving. Our courts have never said exactly what a relevant time amounted to, though there are some cases that give us hints.

In this case the district attorney focused on some other issues that I raised, and neglected to prove whose car the defendant was standing beside, and to determine when the accident had occurred. The judge after hearing the arguments and reading the cases I provided him, entered a verdict of not guilty.

It’s not against the law to slow down before you turn

In this case we were representing a sworn law enforcement officer who had been struggling with personal issues and was drinking way too much. He ended up on the night he was arrested at a bar not far from his home. They had substantially over served him. As he was planning to drive home the bartender told him that he would provide him a ride and asked him not to drive his vehicle home. He also told my client that if my client drove away he would call the police. My client, stubborn, hardheaded, and drunk, decided to ignore that clearly appropriate advice and drive home anyway. The bartender did as he had promised and called the police, and the officer quickly spotted my client making a turn from a large road to a smaller secondary road in his pickup truck.

At that point the officer opined that my client has slowed down to 5 or 10 miles an hour to make that turn, and that he found that suspicious. Based on the video provided by his in car camera, it looked very much like a reasonable turn. The officer then testified that my client had run across a line and a white striped area in the roadway after he made that turn, but his video at best showed him only slightly touching that line. The officer also told us on direct examination all the details that the dispatcher had gotten from the bartender. On cross-examination, he admitted that he wasn't sure which of those details had been relayed to him through the laptop in his car and through the radio transmission from the 911 operator. It was apparent to me that the officer had not looked at his video in a long time, which put him at a disadvantage as I had looked at the video shortly before this hearing.

You see, the officer's ability to stop your vehicle depends not on what everyone knows, but what he knows at the moment he activates his blue lights and pulled you over. I was able to move the officer off of his testimony that he knew all the details the dispatcher had provided. In fact, he told us that he wasn't sure if he had been provided any details other than the make and model of the defendant's vehicle and that the dispatcher had been told that my client was drunk. So when he activated his blue lights all he had was a slow turn, crossing the line and an anonymous tip. In this case, the tip was anonymous because the officer had no way to know whether the tipster had enough information to a ascertain that the defendant was driving while impaired. After my cross-examination, the officer admitted that all he was sure he had was a conclusory allegation that the defendant was impaired, and an accurate description of the defendant's car.

The US Supreme Court has given us guidance as to how to analyze an anonymous tip. In Florida versus JL a tipster called the Miami Police Department and informed them that a black man in a checkered shirt and blue jeans would be on a specific corner in Miami selling cocaine she kept in his right front pants pocket. Though that information was relayed to the police, no information was relayed as to who the tipster was, whether they could be believed, or how they knew the information. There was also no indication that the tipster had worked with the police before, or had provided good information in the past. The police then went to the identified corner and found a black man in a checkered shirt and blue jeans selling cocaine which he kept in his right front pants pocket. The Supreme Court ruled that though the information properly identified the person whom the tipster was calling about, it did not provide other indicia of reliability to the police officer who effectuated the arrest, and so the court suppressed all the evidence gathered after the arrest of the defendant.

By applying JL to the case at hand, I argued that the stop was not justified by reasonable articulable suspicion, and so any evidence gathered after the stop should not be admitted. The court granted my motion to suppress all the evidence against the defendant and dismissed the case.

Speeding is not a serious crime

I was in court one afternoon working on my own cases when I noticed a lawyer who doesn't spend a lot of time in traffic court representing a man with a 95 in a 65 speeding charge. The defendant was also charged with reckless driving. The judge on that date must've been in a bad mood, and though the defendant had done a driving school, she sentenced him to supervised probation and ordered him not to drive for 120 days.

I always try to listen to judgments so that I can know where things are going with judges on my cases. As the defendant was checking in with probation he found that he was not allowed to leave the state of North Carolina for at least 90 days while on supervised probation. This was a problem because he has an international importing business, and already had airline tickets to the Middle East where he was going to buy some product. Additionally had a business in Florida that needed managing, so supervised probation was something he could not abide. Additionally, he drove many thousands of miles in pursuit of his business interests, so he really couldn't afford to lose his license.

After the sentence, the defendant was very upset and eventually someone directed him to me. We immediately entered notice of appeal which stops enforcement of the judgment and starts the process all over in Superior Court. I knew I had a problem because the district attorney's office was very upset with the number of tickets he had on his record, and I would have to deal with them in Superior Court. Though he didn't have a terrible record, he did have several tickets every year for the past 10 years.

So we set the case for hearing in Superior Court and he agreed to plead guilty to both charges. Since I had talked to the officer involved, and he had explained to me that the only reason for the reckless driving charge was the defendant's speed, I felt confident that the judge would arrest judgment on the speeding charge and only convict him of reckless driving. That was the deal that my client had in District Court.

So in Superior Court, I pled him guilty to reckless driving and speeding, and the judge arrested the judgment on the speeding charge. That effectively means that he had no consequences based on the speeding charge, and thus saved in a one-year suspension of his driver's privilege as 95 in a 65 leads to a one-year suspension in North Carolina. In our state, if the DMV suspends you for speeding and you have no other convictions within the last one year, you are eligible for a driving privilege during that time. If the court suspends you( as happened in District Court) there is no privilege during that time.

Since judgment was arrested on the speeding charge and the judge issued no suspension in Superior Court, he ended up able to keep his driver's license. In addition, he did not get placed on supervised probation, and so he could continue to attend to his businesses.

I also explained to him that he could no longer afford to get speeding tickets. I told him the story about my brother Michael, who is a schoolteacher. One day I was riding with Michael in Durham and he was driving at or below the speed limit, and extremely carefully. I complained and told him he could drive like he wanted to since he was in my town. Michael then explained to me that schoolteachers didn't get paid a lot of money and so he could not afford to have tickets. Since that was true, he had decided to drive at or below the speed limit and very carefully. I explained to my client that he was a little like my brother in that he could not afford to get more tickets because his record would always make district attorneys think that he was a bad person and put him and his businesses at risk.

In conclusion, if you can't afford to get a ticket, don't violate the law.

Never try to bluff a good poker player

I have been playing poker all my life. My father was a soldier in the Navy in World War II, and told me that he won lots of money on the ships on which he served by playing poker. He told me that he didn't feel that he was a better poker player than the other players on the ships, but that he would avoid drinking and just wait until they were too drunk to make good decisions and then take all their money.

I learned to play poker from my father when I was about 12 years old. In poker you learn to evaluate hands, read people, do mathematics, and understand that you're usually dealt a bad hand. Winning with the best hand takes no skill, but it does take skill to extract the most money when you do have the best hand. By bluffing with the worst hand, you induce people to call you and pay you off when you have the best hand. I believe that the best poker players make the best lawyers.

In a recent case, I was representing a young man that had some problems with judgment in his past. He was charged with DWI, but based on the video evidence that I had been provided, I believe that the case against him was weak. The problem was, I had to get a judge to find that there was no reason to arrest him, because he did end up providing a breath test it was over the legal limit That's more difficult because the standards of evidence to prove that an arrest was proper are vastly lower than beyond a reasonable doubt. The standard is more likely than not, or some people would say ”would a reasonable officer given the information he had arrest the defendant and charging with DWI”.

Of course, if there is not probable cause to arrest the defendant, then any evidence gathered after the defendant's arrest isn't admissible.

In this case, I hired an expert. Doug Scott is a former law enforcement officer who is come over to the right side of the law and now testifies as an expert witness about many topics. Doug is astonishingly well versed in driving while impaired, field sobriety testing, drugged driving, police procedure, and an enormous number of other areas of law. He and I have been friends for over a decade, and he is an amazing weapon in court. All he and I want to do is make sure the science is properly understood, and that the truth comes out. I tell my clients that if I was going to go hunting you need to provide me both the gun and bullets for the gun. Doug is one of my bullets.

In this case it seemed to me that the officer had done the field sobriety tests within the standards that are set by the national highway traffic safety association (NHTSA), which is the accrediting body for training on standardized field sobriety testing. I have taken the course and been certified in the past on standardized field sobriety testing and the detection of impaired driving. That course is the same course that the police take when they learn how to prosecute you for DWI. Doug has both taken and taught that course, and knows more about standardized field sobriety testing and the research on which it is founded than any person I've ever met. So I had Doug come the court on three separate occasions, and on each occasion the state found a reason to continue the case. They eventually dismissed the case, and indicted my client in Superior Court, though that is extremely unusual on a misdemeanor charge. It made me wonder what they had to hide.

When we all arrived in Superior Court ready for our motion to suppress all evidence gathered after the arrest because there was not probable cause to support that arrest, the case of been handed over to a relatively new assistant district attorney. She is a bright young lawyer, but she has very little experience to call on.

I had as I do in every case filed a Brady motion. Brady v. Maryland is a United States Supreme Court case of monumental import in criminal defense. In it, the US Supreme Court required the states attorneys to provide all exculpatory information to the defendant prior to trial. This case had been transferred around among several assistant district attorney's, and so some of the materials I normally would had been provided had not been provided me.

When the state began their examination of the officer, the assistant district attorney asked if he had completed the standardized field sobriety test course. The officer testified that he had taken the course but that he had failed it and that he had never gone back to take it again. I was so surprised by this testimony that it took me a minute before I stood up and objected to him testifying about any performance of standardized field sobriety testing. The assistant district attorney argued that he should be up to testify to what he saw, but after my argument the judge ruled that he couldn't testify to any interpretation of any standardized field sobriety test since he hadn't passed the course. He did testify to some of the physical behaviors he saw in the defendant, but after an effective cross-examination, and testimony by Doug Scott, the judge granted my motion and found that there was not probable cause to arrest the defendant. Shortly thereafter the district attorney dismissed all charges against my client.

I could have also argued that the district attorney was required to provide me the information that the that the police officer had failed his standardized field sobriety test course under the Brady case. That certainly was something I would have done had I failed in my argument over probable cause, but since we won that argument the other arguments were unnecessary. That does point out why it's important to file a Brady motion in every criminal and DWI case.

The moral of this story is do the training and make sure you're loaded up for court.

And never try to bluff a good poker player.

Sometimes if you travel you get away from trouble

I was working on a DWI with John Cox, who is one of the lawyers I partner with in trying DWIs. John is in Alamance County and is better versed on the local lay of the land and I am. I think you always need a local lawyer to represent you because all of the court system prefers local lawyers to out-of-town lawyers. I am considered local in Orange Durham Wake and Chatham County's, because I've been going to those court houses for many years and know the district attorney's, judges, and systems well enough that I'm comfortable there. When I have a case in the other counties in North Carolina I always have a local lawyer by my side so that I get local treatment.

John and I were representing a client who was charged with DWI. It was not his first DWI, and the consequences of conviction would be severe. The case involved in an accident in which our client was injured, and he was eventually taken to UNC hospital in Orange County North Carolina. The law enforcement officer had been issued a warrant in Alamance County in order to take blood from our client in Orange County at UNC hospital. Superior court judges and District Court judges are allowed to give law enforcement officers warrants that cover the entire state, but a magistrate, which is the lowest level of judge in North Carolina, is only allowed by statute to issue warrants to be served in his County.

In this case the blood evidence was critical because the officer had not seen substantial behavior by our client (for instance, field sobriety tests or driving) that could have led to a conviction even without a blood test. Once we made our position clear to the district attorney, there was a flurry of activity in the DAs office in order to determine if there is any way around the county restriction on warrants by magistrates. There was not, and the DWI was dismissed.

Never plead until you see the whites of their eyes!

I'm friends with a lawyer in Maryland named Lenny Stamm. He's a brilliant lawyer and a meta thinker when it comes to DWI and criminal trial work. He and I were working on a DWI case together, and after doing an exhaustive analysis, I was confident that the case was best handled as a guilty plea as there were no trial or motion issues that I believed could lead to a dismissal or a not guilty verdict. That's never what I hope to find, but it is what I find in some cases.

I was explaining all this to Lenny and he told me" I almost never plead until I see the whites of their eyes". By that he meant that he wanted to be sure that the states witnesses were available, that they knew what they purported to know, and that the state had all of its other evidence available.

We did end up pleading that case, but I took the lesson to heart. An assistant district attorney in Durham asked me recently are any of your cases ever for plea? I answered" they are all for trial until I see you have your evidence available. Then some of them are for plea”.

I just completed a case in Orange County North Carolina. My client was charged with DWI, she blew over the legal limit, and she was convinced that we should enter a plea of guilty and get the case resolved. I was successful in persuading her to wait and see whether the state could put their case together, and that tactic was successful. The state had a problem with one of their witnesses, and eventually was required to enter a dismissal in the case. Had we entered a guilty plea in the case early in the process, that opportunity would not have occurred.

In sum, I believe you should begin every DWI with the thought that your client is not guilty. It's easy to get to guilty whenever you decide that's the right tactic, and in some cases that's the only reasonable option. But if you start at guilty, you'll never end up with a dismissal or not guilty.

I can’t study for the exam without my notes

I represented a young man in a major city in North Carolina who was charged with a Driving While Impaired and tested nearly double the .08 limit. His case looked pretty open and shut to me, even through my eyes which often see issues that other people haven’t identified. But I always follow my friend Lenny Stamm’s advice, which is: Never plead guilty until you see the white of their eyes (and the notes and the videos). In other words, Lenny and I both believe that the policeman should be present in court, with his notes and any video available to support his testimony before we are willing to plead a defendant guilty even in a lock tight case.

I had not been told of any problems prior to the trial date, but when I arrived prepared for trial, the officers told me that he couldn’t find his notes. In fact, he was not sure that he ever made notes in this case. His normal process was to make quick stopping notes at the scene and during the arrest process, and then take his in car video and make a complete set of thoroughly readable and understandable notes.

I then called the case for trial. Much to the judge’s amusement and the District Attorney’s dismay the officer testified that though he was certain he had done field sobriety tests on my client (and that he’d failed them miserably), he could not find his notes or any video. He had no clear independent recollection of the arrest process, in part because it had been about a year since that it had occurred. I argued that there was no proof of probable cause to arrest my client without the officer’s notes, video, or recollection. The judge agreed with me and dismissed all charges against my client.

The moral of the story is: It’s not over till the fat lady sings (and the officer testifies).

A Broken Leg Makes You Unsteady

I represented a man who had been drinking with his brother in a second story apartment.   His brother became belligerent and began to pummel my client.

My client retreated to the bedroom, locked the door, tied sheets together from the bed and attempted to make his escape over the balcony.

About halfway down the sheets tore and he fell to the ground and broke his leg.

The police later found him and noticed he smelled of alcohol. He was so impaired that they did not give him field sobriety tests, they simply arrested him based on the fact that he was unstable on his feet. I presented evidence that he had broken his leg from the fall and the Judge found that being unsteady on your feet with a broken leg is not an indication of impairment. He then suppressed all the evidence gathered after the arrest of my client. This led to a not guilty verdict.

Duke Law Students Know Their ABC's

I represented a Duke Law Student who was charged with driving while impaired in Chapel Hill. When he was stopped by the policeman, during his routine evaluation of my client's alcohol consumption, the officer asked my client if he knew his ABC's.

This made my client very angry as he had previously told the officer that he was a Duke Law Student. He went on to tell the officer that he (my client) was better educated than the officer or anyone in the officer's family.  THEN he refused to do any other tests or answer any more questions. 

As expected, this made the officer angry, and he then arrested my client.

I convinced the Judge that the officer arrested him prior to properly forming probable cause to arrest.

The Judge suppressed all the evidence gathered after the arrest and the charges against my client were dismissed.

An Oath That Matters

I represented a man that was charged with assault on a female (his wife). He told me that his wife had fabricated the story of assault in order to extract money and favors from him. He testified that she had scratched herself, which left the marks the police accused him of making.

He and his wife were both Muslim, so given that the Bible has little significance to Muslims, I decided to hire a translator to bring the Koran (the Muslim holy book) and to provide a Muslim oath to the court in the hope that the wife would not be willing to lie after swearing to her God not to lie.

I made a big show of having the translator, and placed the Koran in the view of the prosecuting witness. After seeing the Koran and being told that there was a person who could provide a Muslim oath, the wife declined to testify and the charges against my client were dismissed.

Corpus Delecti Rule

I represented a man who was charged with driving while impaired. He had run off the road, drove a considerable distance into the woods, and was eventually stopped by a tree.

When the police arrived, it was immediately apparent that he was impaired (he later blew more than double the legal limit).

The officer asked what happened and my client provided the officer with the details of the incident including his drinking, his belief that he fell asleep while driving, and that he had no passengers in his vehicle.

I argued that my client's confession without other evidence was not enough to establish the element of driving in the crime of driving while impaired. Though you would think that the confession that he had no accident and he had no passengers would be enough, the law says that is not enough.

The officer admitted that when he arrived at the scene several people were standing around, along with my client and that it was not my client's vehicle that had been wrecked. The Judge ruled (under State v. Trexler) that the officer had not performed a complete enough investigation of the accident, that the State had not proven that my client was driving, and found my client not guilty of driving while impaired.

High in the Friendly Skies

Here I represented a young man who had arrived at the Raleigh Durham Airport before noon after a long flight. During the flight he had about ten bourbon drinks. Apparently, several passengers had noted his intoxication. 

As he rode the shuttle bus to his parked car a women called airport security and reported that an intoxicated person was about to drive his car.

Meantime, my client wobbled to his vehicle and started his vehicle.

Because in North Carolina driving is defined as sitting behind the wheel of a running car whether it is moving or sitting still, the airport police immediately pulled in behind his vehicle to block him in.

The client put the vehicle in park and got out of the vehicle. He blew .20 on the intoxilyzer. The police officer testified that the passenger on the shuttle bus pointed to my client when airport security arrived and said, “that is him.”

I argued under a long line of cases from North Carolina and the United States Supreme Court that the anonymous tip was not sufficient to give the police officer authority to stop the vehicle. Since my client had done nothing but start his vehicle, put it in reverse, and begin to back out of the parking space, the police officer could not testify that he had observed any bad driving.

The police officer testified that the woman who had identified my client had not wished to give her name and he had not done any further investigation as to her identity.

The officer also failed to ask the woman how she knew my client was impaired or any other questions that may have given him sufficient evidence to stop my client.

The Judge then granted my motion to suppress all evidence gathered after the stop was dismissed, and my client was found not guilty.

A Wreck is Not An Accident

I represented a very nice lady who was discovered by police parked in a ditch.  She had been going through a very sad and difficult time in her life, but had had pulled over because she had realized that she shouldn't be driving. 

When she had pulled off on the side of the road she got herself stuck in a ditch and some point later a police officer drove by and found her in her car. The engine was not running. He thought that she had crashed in the ditch. In fact, she had only parked poorly. Fortunately for my client, the first police officer that spotted her was a Corporal and as we all know officers are far too important to attend to the normal duties of their job.

So instead of processing her himself, he called one of his subordinates to process her. When we got to the court the Corporal was not there; only the subordinate came to court.  The subordinate was unable to say whether the defendant had parked or wrecked or how the defendant got into the ditch.

What the subordinate could say for certain is that when they arrived, the Corporal's blue lights were flashing and that he was behind my client. There was also a civilian witness on the scene who had stopped, but the District Attorney was unable to secure his attendance in court.

Thus, in court, all the District Attorney was able to present was the second officer's speculation that there had been a wreck. Unfortunately, the Judge ruled against my argument that the defendant had already been stopped by the first police officer when the second police officer arrived at the scene.   The Judge did find the District Attorney's evidence that my client had some trouble getting from the ditch to the road, however it was not enough evidence of impairment to allow the police to arrest her.  Thereafter the Judge granted my motion to suppress all the evidence gathered by the State after the arrest of the defendant. 

I Gotta Have A Mint

I represented a young lady who was charged with Driving While Impaired. Her case looked pretty solid for the State, but during my careful interview of her she disclosed that she had a mint during the breath testing procedure.

She wasn’t sure when in the process that had happened. I immediately ordered the DVD’s (that are sometimes available) of her performance of the intoximeter test. Prior to receiving the DVD, I discussed the case with the charging officer who was also the intoximeter operator. He told me that she had a mint but that he was certain that he waited the appropriate amount of time after that mint to continue her testing procedure.   (I argued that he didn't wait a long enough time, but that argument was not reached by court).

I convinced the Judge that the chemical analyst had not performed the two consecutive tests on the intoximeter EC-IR that are required by Statute, and the Judge suppressed her intoximeter reading.

Afterwards, we had a trial in which I argued that there was not enough evidence to find she was actually impaired. The judge agreed and found her not guilty.

Get It While It's Hot

When my client came to see me, I knew it was the worst of all worlds as he had a .17 BAC (Blood Alcohol Content) on the Intoxilyzer, and he was said to have refused testing. 

In North Carolina, the state is required to prove that you have two breath samples within .02 of each other to get the breath test in, with one exception.  If you get a test and then refuse, the state can use both the number you blew and your refusal against you.

My client told me that he had blown several times, and that he would have kept blowing all night if necessary. But after seven tests, the policeman got inpatient and shut the test down and took him to the magistrate. The magistrate then asked the officer “was this a test or a refusal?” The officer said, “I could not get a sample, but wait here and I will fix this.”

He then went back without my client, booted up the Intoxilyzer machine and printed a refusal ticket. When he returned, the magistrate accepted that and charged my client.

When I heard this, I knew I had to act fast. First, I got the DVD of the Intoxilyzer room and took it to the magistrate to remind her of the situation. Magistrates are the lowest level of judges in our system, and they see many people every shift. I wanted to refresh her memory before it was gone. So I met her within a couple of days and showed her the video and got her to remember that the defendant said to her “I am not refusing”, and that turned out to be the critical moment.

At the DMV hearing, I argued that my client did not refuse and won the hearing, in large part because of the magistrate's testimony. When the case came to trial, the magistrate testified again the officer, the judge excluded the breath test result, and then found my client not guilty. 

Cheetos Absorb Alcohol

I represented a man who had been at a family gathering and had several beers over the course of the evening. He and his wife were arguing as he drove his dually (truck with two tires on the rear axle per side) home on a relatively narrow country road.

The police testified that he followed my client for over 5 miles, and during that time my client crossed the center line twice and the fog line three times. He then stopped my client.

When he approached the car, he noticed that my client had so many Cheetos in his mouth that the bright orange junk food was being ejected as he spoke to the officer.

My client's speech was mumbled but I argued that was because of Cheetos and not alcohol. I also argued that my client's driving was really very good, and that driving a wide vehicle on a relatively narrow road for over 5 miles and doing nothing wrong except cross over the white line twice and the fog line (the line on the right side of the road) three times is really good driving.

My client tested a .08 on the intoximeter test at the police station and I was successful in arguing that .08 without other supporting evidence was not enough to convince the Jury that he was guilty of driving while impaired.

You see, in District Court the Judge sits as the Jury which decides the facts and the Judge who rules on the law. I made several legal motions hoping that the Judge would grant those and dismiss the case, but he denied all those motions.

I believe that because I made several good legal arguments that were close, but not successful, led to the Judge finding that a test right at the legal limit was not enough to convict.

This case was a war of attrition; I eventually wore down the Judge's resistance by making lots of good arguments that my client should not be convicted.

I eventually prevailed by arguing that no machine is perfect and the intoximter does not tell us whether a .08 is a .089 or a .080. Even though it reads to four digits, North Carolina has determined that we can only know two. For that reason, if there is any error in the machine and the test is .080 then it could well be a .079.

The State argued that the machine is perfect, and only has error on the plus side; in other words, it can only read lower than or equal to the actual breath test. Any normal intelligent adult knows that is simply not true of any machine. All machines have errors both in the plus or minus directions. The Judge found my argument persuasive and found my client not guilty.

The Missing Evidence Defense

All Americans are aware of the new batch of "CSI" shows on television where there is always a hair or fiber or morsel of dirt that inevitably leads to the perpetrator (who seems always to confess), this has juries (and some judges) looking for more than the police usually produce in the way of tangible evidence.

You see, the police are vastly overburdened with crime and the necessary paperwork, and often overlook evidence that is available because they have a suspect and it seems clear to them that he is guilty.

In this case my client was charged with assaulting his wife, and he told me that he was innocent. He had been convicted in the lower court where another attorney represented him, and I handled the jury trial. In closing, I argued that the state did not present evidence of DNA, fingerprints, pictures of bruises, or any physical evidence of the alleged assault. I think they could have presented more evidence, but they were just too busy to prepare their case as carefully as I prepare mine. The jury found the evidence lacking and found my client not guilty.

Cases the District Attorney Hopes You Haven't Read!

State v. Richard Lewis Trexler

The North Carolina Supreme Court announced the corpus delicti rule citing “Opper v. U.S." (1954). The Court ruled that the defendants'  admission to an element of the crime without other corroboration is not enough to prove that element.   This means that in a "driving while impaired" situation, sometimes the part of it that's only provable by the defendants admission is the element of actual driving.  This is sometimes not witnessed by a police officer, particularly in a case involving an accident. Combined with the rules in Crawford (see below) the police must have independent evidence of driving, which is sometimes beyond their ability to gather on the court date.

Robinson v. Life and Casualty Insurance Company of Tennessee

The court ruled that a blood test for alcohol must be taken from the body before any other substance is injected into the body. I have used this case to suppress evidence of the blood test in cases where the defendant was treated and injected with medication prior to the blood test being administered.

State v. Verdicanno (unpublished).

The North Carolina Court of Appeals ruled that a blood test taken three and a half hours after the arrest was not taken at a relevant time after driving. I have used this case to exclude blood and breath tests that were taken substantially after driving had occurred. It is often persuasive when the State does not know when the driving occurred, or the test is delayed for some time.

Florida v. J.L

The police were given a very accurate description of J.L. (he was a juvenile and we can not use his name) by an anonymous caller. The court ruled that in most cases an anonymous tip is not sufficient to allow the police to stop a person. I have used this case to prevent the police from using 911 or cell phone calls from civilians to provide justification for a stop of a vehicle.

State v. McCarn

The North Carolina Court of Appeals ruled that an anonymous tip to the police is not sufficient to justify a stop of a vehicle (adopting Florida v. J.L.). In this case, they held that the tip needs to specifically indicate criminal activity not merely the defendants presence or other lawful behavior.

State v. Knoll

The court ruled that a defendant being held after being charged with driving while impaired for a substantial period of time has been denied the right to gather evidence at the only time that evidence would be available, thus the charges must be dismissed. I have used this case to argue that the defendant has been denied the opportunity to gather evidence at several important stages during the driving while impaired prosecution.

State v. Ferguson.

The North Carolina Court of Appeals ruled that if a defendant is denied access to a witness at any time during the driving while impaired processing, all evidence gathered after that denial should be suppressed. Under State v. Elson (unpublished) the Court of Appeals also ruled that the State has the burden of proving no prejudice if there is a refusal or no chemical test and the defendant was denied access to a witness.

Michigan Department of State Police v. Sitz

The U.S. Supreme Court allowed a road block set up to detect driving while impaired drivers. The Court set out a number of rules that are often not followed in North Carolina road blocks. In particular, the court stressed that the motorist should be allowed to make a u-turn as to avoid the road block if it seemed inconvenient to stop at that time. I have used this case to suppress evidence gathered after a road block.

State v. Barnes

The North Carolina Court of Appeals stated that at a road block, no individual officer may be given discretion as to which vehicle is stopped or which driver is requested to submit to an alcohol screening test.

City of Indianapolis v. Edmonds

The U.S. Supreme Court found that a road block set up for detection of drugs is not allowed by the U.S. Constitution and substantially limited the purposes for which road blocks are allowed.

North Carolina v. Roberson

The North Carolina Court of Appeals found that a defendant who had not proceeded through an intersection after a light turned green and had been green for five or ten seconds was not sufficiently suspicious to allow the police to stop the defendants vehicle. The Court said, “the evidence adduced by the officer could just have easily be explained as conduct falling within a broad range of what could be described as normal driving behavior”.

U.S. v. Wilson

The Fourth Circuit Court ruled that when a police officer is unable to see the date on a temporary tag to determine if it is expired, the officer does not have the right to stop the vehicle to explore whether that tag is expired. I have used this case to argue that a police officers mistake or inability to determine the vehicles compliance with the rules of the road does not give the officer the right to stop that vehicle.

North Carolina v. Felix Fisher

The North Carolina Court of Appeals ruled that holding a defendant for a relatively short period of time was considered an arrest and must be justified by probable cause.

State v. Falana

The North Carolina Court of Appeals ruled that once the original purpose of the stop is finished the police need additional facts rising to the level of reasonable suspicion to continue to hold the driver.

U.S. v. Brignoni-Ponce

The United States Supreme Court ruled that a car stopped because it contained individuals who appeared to be Hispanic near the border was not justified by reasonable suspicion. All of the evidence gathered by the police after the stop of Mr. Ponce’s car was suppressed.

State v. Thompson

The North Carolina Court of Appeals ruled that the defendant was required to be given his rights orally and in writing prior to the administration of the intoxilyzer test. I have used this case to argue that in some situations the defendant was not provided his rights in writing prior to the administering of the intoxilyzer test and thus those results were not admissible against him.

Crawford v. Washington

The United States Supreme Court found that evidence was not admissible without the person who developed that evidence in court to present the evidence. North Carolina Courts adopted his rule in State v. Forrest in May of 2004.

State v. Myers

In Myers, the defendant was arrested for driving while impaired and taken to the breath test room in Rowan County where he was read his breath test rights. The defendant asked that his wife be allowed to be present during the administration of the breath test. The officer said “that might not be a good idea". The Court of Appeals of North Carolina ruled that he had by that statement discouraged the defendant from exercising his right to a witness. Therefore, the results of that test were inadmissible. I use this case to argue that a officer not completely explaining the rights of the defendant or discouraging a defendant from exercising his constitutional and statutory nights should lead to the suppression of evidence.

State v. Rose

In State v. Rose, the North Carolina Court of Appeals ruled that a roadblock checkpoint is not an acceptable reason to stop under the United States and North Carolina Constitution, unless the primary programmatic purpose of the roadblock is acceptable under Indianapolis v. Edmond.   In Indianapolis v. Edmond, the United States Supreme Court ruled that a checkpoint is set up for generalized crime control (in this case a checkpoint was set up to catch people with illegal drugs) is not acceptable under the United States Constitution.

There are a very limited set of reasons for which a checkpoint can be used which meet an exception to the rule that the police can not stop you or detain you without a reasonable suspicion that you are or are about to commit a crime.

The U.S. Supreme Court has found these reasons sufficient:

• Checkpoint to see if people are legally coming in our out of the United States
• Checkpoint for driving while impaired that is carefully tailored to find impaired drivers
• Checkpoint to find a hit and run driver set up at the same intersection that the hit and run occurred at the same time the hit and run driver set up at the same time of day the hit and run occurred, in which the police were only asking drivers if they had seen the accident.

The Supreme Court and the North Carolina Courts have ruled that the checkpoints must be carefully tailored to its underlining purpose. I have successfully argued in checkpoint cases that a checkpoint set-up to detect drunk drivers has to be supported by some evidence that drunk drivers are more likely on this stretch of road than some other. For instance, in Rose the Court found that the officers who had set up the checkpoint had general supervisory permission to set up a checkpoint, but the checkpoint was in a high drug area and that all of the officers were narcotics officers. The Court implicitly found that the checkpoint was really to detect drug possession and not to detect traffic violations or driving while impaired. They also said that stating a presumptively valid purpose for the checkpoint will not do - the person who set-up the checkpoint must be able to point to real evidence that this checkpoint is tailored to detect this sort of crime.

Cops can not set up a checkpoint because they are bored. The North Carolina General Statutes says that checkpoints are not to be set up repeatedly in the same area but the legislature in its infinite wisdom also says that if in fact checkpoints are set up repeatedly in the same area, that is not a reason to suppress or dismiss any cases generated by that checkpoint, which leaves the Statue without any enforcement mechanism. I guess the Judge can say to the officers, "Bad boys, you shouldn't do this, but I will not do anything to you if you do it over and over again."

In my favorite case relying on Rose, a Judge ruled that America is not like Nazi Germany and the police can not stop you and ask you for your identification or your papers without some reason or some specific exception to the Constitution. I hope that is the America we still live in.

High Heel Sneakers

In this case, I represented a young lady who had been out clubbing. She was wearing club clothes, including a pair of 4" high heel shoes.

A police officer stopped her for making a u-turn, which is not unlawful, and could not be considered in the officer's decision to arrest her.

When the officer pulled her over, her passenger threw up on the sidewalk. The officer wanted to quickly start the process. The officer asked her to perform one field sobriety test, which was the walk and turn.

In that test, you are directed to take nine heel to toe steps along an actual or imaginary line, turn around, and take nine steps back. The officer testified that she did not step off of the line, but she did not touch her heel to her toe on any of the steps as he had directed.

I argued that her performance was exemplary though she did not follow that instruction. I explained that the instruction would have been overly difficult given the clothing she was wearing.

I also argued that the low temperatures of the night along with her clothing caused her to be cold and shivering, which made her unable to stand stable as the officer had directed. The officer admitted that he was wearing a jacket and she was wearing nothing but her very flimsy club clothes.

I then argued that the police officer made a rash decision and arrested her before he had probable cause.  The Judge agreed with my argument and my client was found not guilty of driving while impaired.

Fishing For Red Herring

I represented a man in Alamance County who was charged with driving while impaired. Luckily, I stay current on the US Supreme Court and North Carolina cases. Recently the United States Supreme Court in Melendez-Diaz decreed that the constitution's requirement that the defendant be allowed to confront the witnesses against him means exactly that: no testimony will be admitted in court without a witness testifying to it.

Historically in District Court, many documents have been allowed into evidence without a witness. For instance, the chemical analysis affidavit and a roadblock plan.

In this case the State attempted to introduce the roadblock plan without the witness. I objected and handed the Melendez-Diaz opinion up to the court. After looking over the opinion, the Court opined that I was correct and that it looked like the Supreme Court had made it necessary to bring a witness in to prove that the plan didn't violate the rules set out in Michigan v. Sitz. (That's the case that says DWI roadblocks can be constitutional but only when they are set up and run by the book!)

The District Attorney then scrambled but was able to get the witness in. Now here is the red herring:

The District Attorney had not been able to prepare her witness ( it was after 4:30 p.m.!), and so when he testified, he said that he had been the supervisor of the roadblock and that he had authorized everyone at the roadblock (approximately 30 officers) to make changes as to who was stopped and when traffic would be let through.

 I argued that was a violation of the roadblock rules set out in Sitz and Indiana v Edmonds. In Edmonds, the Court held that there can be no discretion given to officers at the scene as to who will be stopped. That rule was reiterated by the North Carolina Courts in State v. Rose.

The District Attorney was so focused on getting her witness to court that she forgot the most important issue: showing that the roadblock was set up neutrally, was supervised by someone not on scene, and that officers on scene were not given any discretion.

You see, roadblocks are an exception to the general rule that the police have to have a reasonable articulable suspicion that you are about to commit a crime in order to stop you in your car or on the street. Roadblocks are only allowed in very limited circumstances, and the US Supreme Court has opined that they are allowed ONLY if there is a neutral plan based on numbers, NOT based on the judgment of the police officers at the scene as to who to stop. Otherwise, police officers could simply stop all the cars with purple people in a neighborhood whose residents are mostly green.

After a long hearing the judge congratulated me on my presentation, and awarded my client a dismissal of all charges. I think that's a gold medal red herring!

Laundry Woes

I represented a young lady who got into an accident in downtown Chapel Hill, right in front of a police officer. She ran into a concrete barrier with two policeman only about 50 feet away. They heard the noise and turned around and immediately went to the scene of the crash.

At the scene, they instantly became aware that she was intoxicated, and asked her to do several field sobriety tests and a portable breath test. After she performed very poorly on those tests they arrested her and took her downtown where she tested nearly twice the legal limit.

In this case, the State had some problems getting both of the police witnesses to court at the same time. I was instrumental in having the case continued for a while in the hopes that something in the State's airtight case would fall apart.   My plan worked perfectly!

The second policeman on the scene, who was actually the arresting officer, put his notebook in with his wash and all of his notes got erased. Because we had managed to continue the case for a long time, he could not remember how my client performed on the field sobriety tests though he was certain that she performed poorly.

I argued that without the details of that performance, the officer should not have been allowed to arrest her. The Judge agreed with me and suppressed all the evidence gathered after the arrest...which included the intoximeter test that she took at the station. Without that, there was not enough evidence to convict her and the Judge found her not guilty.

If You Are Not In Court You Get Arrested, If The Police Are Not In Court........

I represented a young man who was charged with driving while impaired after having a wreck in his neighbor's front yard. He had been drinking early in the morning and had gone out for some lunch and not quite made it back home before he ran over a mailbox and tore up his neighbor's yard rather severely.

The police arrived sometime after the accident, and eventually arrested him and charged him with driving while impaired. I put pressure on the District Attorney by calling the case for trial, something I often do to see what happens after pressure is applied. When we recessed for lunch the Judge told everyone (me, the Assistant District Attorney, my client and the cop) to be back at 2:00 p.m. to do our trial.

When we returned after lunch at 2:00 p.m. the police officer was not present, and by 3:00 p.m. when the court was finished with its business other than our trial the policeman still had not appeared.

The District Attorney then told the Judge he didn't know why the policeman was not back and moved to continue in part because the District Attorney had not taken the time to find out why the officers had failed to return after being ordered to the court.

I objected vigorously and pointed out that if my client hadn't come back we would have arrested him unless he had a very good reason. The Judge denied the District Attorney's motion to continue. The District Attorney then was required to dismiss the case. The State then issued a new warrant for the same charge against my client, and arrested him at midnight at his home. They made a big scene in my client's front yard and took him in his PJ's handcuffed through the yard just to embarrass him in front of his neighbors.

When the case came back to district court on the new warrant, I convinced the Judge to dismiss it on due process grounds (that's explained below). The State has appealed this ruling and we have been through several hearings so far, but certainly by doing all of this work we have gained a substantial advantage for my client. In some cases the State can recharge a defendant after dismissing the charges, but I was arguing that this was a unfair violation of the due process clause (your right to due process means that hearings have to be fundamentally fair) to allow the State to re-calendar a case (effectively continuing it) after a Judge has expressly denied the District Attorney's motion to continue. It clearly undermines the Judges authority to control the calendar, and Judges never seem to like it when the District Attorney steps on their toes. You see, I think it's my job to prevent the District Attorney from stomping on your toes or your rights to get a conviction.

Injection Hearsay

Another time I represented a man who was charged with driving while impaired and had a prior driving while impaired charge within seven years. The State's evidence against him was not overwhelming except that he tested over .16 on the intoxilyzer. I knew that the combination of that test result along with a prior offense would result in a one year active sentence in prison. Consequently, I argued under Crawford v. Washington, that the affidavit of the intoxilyzer operator should not be admitted unless he was physically present to testify.

In Crawford, the U.S. Supreme Court ruled that any evidence that is prepared for court is not admissible unless the person who prepared that evidence is available and is present in court.; Here's something you probably don't know: in North Carolina there is a statutory exception to the hearsay rule allowing admission of the affidavit of the intoxilyzer operator without his presence in District Court.

However, I argued that Crawford is a constitutional decision and thus overrides a statutory exception written into the North Carolina General Statutes. I analogized by arguing that the miscegenation statue, which prohibited interracial marriage that remained in the North Carolina General Statutes for several years after the U.S. Supreme Court, had overruled Plessy v. Ferguson and ruled that discrimination based on race was unlawful.

In essence, the Constitution overrules any statue or law. The Judge agreed with my argument and suppressed the result of the intoxilyzer and found my client not guilty. The District Attorney attempted to appeal that decision fearing that it set a bad precedent and would increase his work load substantially. I was able to persuade the appellate Judge in that case that the District Attorney did not follow the proper procedure from the rules of court and had the Judge dismiss the appeal.

Move Over Law

I once represented a young lady who was charged with driving while impaired. The police officer testified that he pulled her over because she had crossed the center line three times. I got a detailed description of the road from my client. From that description I knew there were parked cars along the side of the road that she was traveling, which narrowed her lane substantially.

I was successful in getting the officer to admit that there could have been people walking in the vicinity and there could have been people in the cars. Therefore, the safest course of action would have been to move over to allow those people space to move.

I also pointed out to the court that the “move over law” requires people to change lanes when approaching a police officer with a vehicle pulled over. The Judge found that although my client's behavior technically violated the law, the law allowed exceptions to the driving to right half of the road rule, such as obstructions in the road, and found that the State had not proven that there was not some reason for my client to move over.

The Judge was also persuaded by the argument that people are taught in driver education to stay as far away from parked cars as is safe. The Judge then granted my motion to suppress all evidence after the stop of my clients vehicle. Thereafter, the Judge entered a directed verdict of not guilty.

Patience is A Virtue

I represented a man who was charged with Driving While Impaired and blew nearly double the legal limit. He was driving down a four lane road and noticed a road block. Fortunately for him the roadblock was set on the other side of the road, but it was between him and his destination...which was also on the other side of the four lane road.

He turned left past the road block and then turned left again on a side road to get to the road he needed. He was stopped by the chase officer at the roadblock who opined that he was avoiding the roadblock.

I made a motion to suppress the stop of his vehicle and all the evidence gathered thereafter based on my theory that the police officer had no right to stop him. The North Carolina Roadblock Statue and some cases say that the police can stop a vehicle that turns away within the perimeter of a roadblock. I convinced the Judge that the roadblock was set up in-artfully, and my client's traverse around that obstruction never put him within the perimeters of the roadblock and so that the stop of his vehicle was unlawful.

The Judge agreed with me and suppressed all the evidence gathered after the stop of his vehicle. His case was then dismissed by the Court.

Parental Participation

I represented a mother who was at a local high school watching her daughter play basketball. She felt that her daughter was receiving unduly rough treatment, and was not being protected by the referees in the game.

After a particularly hard foul, the mother took it upon herself to administer a little parental justice. She came out of the stands, ran out onto the court, and proceeded to beat up the player who had fouled her daughter. She was arrested and charged with assault.

I studied the case law and found that one of the forms of assault is "assault by failing to defend". You are guilty of assault by failing to defend if a child or some invalid person trusted to your case is being assaulted and you make no effort to protect them.

I argued to the District Attorney that this was a clear case of a mother obeying the law that she sincerely felt that her child was in danger and for that reason she should not be prosecuted.

The District Attorney agreed with my argument and allowed her to enter into a deferred prosecution program, which he was unwilling to do before he heard my argument and was presented with my brief, cases, and statue.

This led to a dismissal of all charges against my client.

Temperature Defense

I represented a man who tested a .08, which is the legal limit in North Carolina. Judges in Durham have historically found defendants guilty with a breath test result of .08, unless you can convince the Judge to exclude the breath test.

In fact, the North Carolina General Statues say that proof of .08 breath alcohol level is proof of impairment, so I had an uphill battle to fight.

I know that the intoxilyzer machine assumes that your breath temperature will be thirty-four degrees centigrade and that each degree centigrade your breath temperature is higher than thirty-four degrees will result in a seven to twelve percent increase in a person's breath alcohol reading.

The thing here is that my client was in the hospital being treated with chemotherapy and radiation for prostate cancer. I was able to document his temperature hour by hour from his medical records.

I called my expert witness (a registered nurse) to testify as to the effects of an increase of temperature on a breath alcohol sample and to the latest studies, which have shown that human breath temperature averages thirty-five degrees centigrade.

The Judge allowed introduction of the breath alcohol level, but found that the State had not proved beyond a reasonable doubt that my client had a .08 blood alcohol level and entered a verdict of not guilty.

The Amazing Invented One Leg Stand Test

I represented a man who was charged with driving while impaired and also charged with refusing to take the breath test. Normally, if you refuse to take the intoximeter test, the officer will take you to the hospital and force you to provide a blood sample which result may be admitted into evidence. For that reason it is no longer a good idea to refute the breath test....you get the penalties for refusing AND your blood alcohol level comes in as evidence anyway. In this case, the trooper did not take my client to the hospital to get a blood test (I am not sure why). When he got my client to the breath test room, my client tried to blow but the officer had his own special procedure.

The first hearing on his refusal was held at the Department of Motor Vehicles in front of a hearing officer to determine if my client willfully refused. I argued that he didn't, and the hearing officer accepted that argument in part because of the trooper's rather bizarre and unique procedure for giving an intoximeter test.

The trooper testified that he gave defendants only two opportunities to blow regardless of the circumstance. He gave the defendant one opportunity to blow and if the intoximeter timed out, then he gave the defendant only one more opportunity. If the machine timed out again, he found that the defendant had willfully refused no matter what the circumstances were.

I asked what he would do if the defendant threw up after the first test but not during the second test (which would require him to start the procedure over) and he said, “I would consider that a refusal.” I don't think the hearing officer believed that throwing up was a voluntarily action.

I also asked the trooper, "Since we have had the new machine (the Intoximeter EC-IR II), of all the people who were actually trying to give a breath sample, how many were charged with refusing?"   He explained that he had found 50% of the people who were trying to give him a breath sample to have willfully refused because they did not comply within the very short period of time he allowed them.

Up until 2008 or so, North Carolina used the intoximeter 5000 breath testing device. It is based on infrared technology in which a light shines through your breath sample and is detected at the other end of the sample chamber. The theory is that the more alcohol that is in the breath sample chamber, the less light will be received at the other end at the frequencies which are blocked by alcohol. That technology is well studied and well understood, and the amount of pressure and volume of breath that you provide to that particular machine is not very critical.

Around 2008 North Carolina began replacing the intoximeter 5000 with the intoximeter EC-IR II, which tests your breath with an electro chemical fuel cell, a completely different process. What is inarguably true of the intoximeter EC-IR II is that it is much more complicated and difficult to provide the breath sample!   It requires more than the intoxilyzer or some other machines require. For that reason, it takes police officers a bit longer to get a valid sample and requires patience which some officers don't possess.  I was able to get the officer to testify that the DMV did not find that my client had refused.  It was critical that I get the Judge to hear that the DMV found for us. I do a lot of DMV hearings and I am successful at the DMV sometimes, which can work wonders in court.

Since there was no intoximeter test to rely on, the State was forced to rely on his driving, coordination and performance on field sobriety tests. I had spoken to the officer prior to court and of course gone over the circumstances carefully with my client very shortly after the incident I had also looked at the officer's notes. In neither of the interviews nor in the officer's notes was the one leg stand mentioned. One leg stand is a standardized field sobriety test in which the officer asks you to put your hands at your side, lift one leg six inches off the ground and stand while you count to thirty like this:  one thousand one, one thousand two, all the way to thirty.

What the officer is looking for is your ability to stand on one leg for thirty seconds and your ability to count correctly. Surprisingly, the officer will not explain what he is looking for on field sobriety tests, and so people are often tricked into thinking that if they make it to 35 instead of 30 they will get extra credit.

The officer will find that if you do anything not exactly in his instructions (even though he will not tell you what he expects), then you are not following instructions and that is an indication of impairment.

My client's recollection was that he had not done the one leg stand, and when I interviewed the officer, he did not mention that test, nor was there anything in his notes about it. Amazingly when he testified he started explaining that the defendant did the one leg stand! My client grabbed my coat and wanted to tell me that he had not done that test, but I said “Stop and wait and let's see what he says” and the officer said “he did the one leg stand perfectly”. Though my client had not done the one leg stand that testimony was the turning point in the case!

Most people can't stand on one leg for thirty seconds even when they are completely sober and the fact he made it to thirty without raising his hands, missing a count or any of the other things the officer is looking for gave the Judge a very good reason to believe that he was not impaired. The lesson here is to prepare very well but be careful about objecting to testimony until you have heard whether it is damaging or helpful to you. Based on these arguments, my client was found by the DMV to have not refused to take the breath test, and was found not guilty of driving while impaired by the Court.

When the Police Gets Bored Everyone is in Danger

I represented a man in Alamance County who was charged with Driving While Impaired. He had been stopped at a roadblock by three local policemen.

That roadblock was set-up because they “didn’t have much to do that night.” 

I argued that under State v. Rose and other cases, a roadblock can't be set-up just because the police are bored!

The police have to have a primary programmatic purpose for setting up a roadblock at that specific location at that particular time for that particular reason.

The policeman testified first that this was “a general crime control roadblock” (which is prohibited by Indianapolis vs. Edmonds a U.S. Supreme Court Case).

He also testified that they chose this location because it would have more traffic than other locations. Not that there were any particular problems at that location other than speeding.

I questioned him as to whether roadblocks were effective at catching speeding violators and he opined that they were not.

The judge found that the roadblock was set up improperly and thus the stopping of my client’s vehicle was unconstitutional and dismissed all charges against my client.

Police officer’s don’t like the rain either

I represented a young man who was stopped for speeding and was charged with driving while impaired.

When the police officer stopped him, it was raining. When the officer approached my client's vehicle, my client cracked his window and handed the officer his license and registration.

He talked to the officer through the crack. The officer did not notice anything unusual and left to write my client a citation for speeding.

When the officer returned, my client rolled his window down completely because it was only drizzling at that point. The police officer testified that he handed my client the ticket and my client held the ticket outside of the window in the drizzling rain for a period of time longer than the police officer thought was appropriate.

That made the officer suspicious and he began to ask my client questions in regards to his drinking. The officer then asked my client to come to his vehicle, gave him a portable breath test, determined that he was over the limit, and arrested him for driving while impaired.

I moved to suppress all of the evidence gathered after he took my client back to his vehicle based on a line of cases starting with State v. Fisher and State v. Falana. In those cases, the North Carolina Court of Appeals ruled that the police can not stop a vehicle for one crime and then hold the defendant to investigate a new crime without some additional evidence.

I do not think the Judge believed the police officers description of the events. My client told me that he immediately took the citation into the car in front of his steering wheel to look over the citation as the officer was explaining how to handle it.

Based on this argument, the Judge found my client innocent.

The Mysteriously Appearing Field Sobriety Test, and the problem with Sports Watches

I represented a man who was charged with driving while impaired and exceeding a safe speed in an accident case.

When he came in he told me that he had a very recent prior DWI and that he had a bad knee. He had nine beers from the early afternoon until about 10:00 pm. As he was driving down the road some deer came towards the road and he went to the right, over corrected, and flipped the Toyota Tundra he was driving that was not his.

When the police arrived about 30 minutes after the accident lots of people were standing along the side of the road. Since the defendant was badly shaken up by the accident and he told the trooper that he had a bad knee the trooper did not perform any field sobriety tests. He did blow into a portable breath test machine on the side of the road and was arrested. When he was taken down to the station, the trooper asked him to blow into the Intoximeter EC-IR II. 

North Carolina only within the last year adopted the EC-IR II disposing of over 1000 Intoxilyzers valued at $8000 each that seemed to be working as they should. The EC-IR II has had problems, and one that I've seen is that many people can't provide the steady 10 second breath sample it requires to register a number.

The second trooper that gave the breath test testified that he gave people only 2 opportunities. They got one opportunity until the machine timed out (about 3-5 minutes) and then he gave them 1 ½ minutes (he used the stopwatch and alarm function on his fancy sports watch). At the end of 1 ½ minutes regardless of what happened he said the defendant had willfully refused.

I argued the refusal first at the DMV. I argued that the defendant did not willfully refuse. To the contrary, he was blowing and trying as hard as he could. When the trooper who gave him the breath test told him he was finding that he refused, my client got very upset and began to argue with the trooper (not generally a good idea). The trooper then told the DMV officer about his interesting 1 ½ minute stopwatch procedure.

I believe that if he hadn't had such a fancy watch he would have just let the test time out twice which probably would have satisfied the hearing officer. I asked him where he had been trained on this 1 ½ minutes procedure and he testified that he had made it up himself out of whole cloth. I asked him where the 1 ½ minutes came from and he said that just seemed a reasonable time to him. I then asked him out of all the people that been trying to give him a sample on the intoximeter since it had come to NC (at that point about a year ago) how many had he refused. He answered to my astonishment that 50 percent of the people that were trying to blow were found to have refused by him after his fancy wrist watch timer trick. The hearing officer found this to be an unfair and needlessly mechanical process to determine if someone has refused, and so he ruled that my client did not willfully refuse.

Thereafter we had a hearing in court and I argued that the trooper did not have sufficient corroborating evidence to prove that my client was the driver of the car outside of my client's confession. Since my client had told the troopers that he was the driver, they did not bother to interview any of the other people at the scene or get their names because they were sure they had their man. In fact it turned out that my client was not the owner of the vehicle that was wrecked, and I successfully argued to the court that there was not enough evidence that he was the driver outside of his confession to prove beyond a reasonable doubt that he was driving.

I also successfully argued to the Court that there was very little evidence that he was impaired since the DMV had found that his refusal was not a willful refusal (I got that in despite that the fact that it's not clearly admissible in district court), and the officer testified that my client did the one leg stand.

My client was certain that he did no field sobriety tests and told me he couldn't do the one leg stand ever because of his bad knee, but the officer interestingly enough said that he did it without any problems. One of my toughest jobs was getting my client to quiet down when the officer made up that field sobriety test and wait until we saw what the officer would say about his performance before we argued that it was pure fiction. When the trooper said he did very well I did not ask any other questions about that part.

When the Judge announced the not guilty verdict, I wasn't and still am not clear on whether the Judge found that my client wasn't proven to be appreciably impaired or wasn't proven to be the driver. We were all was just happy that he didn't have to spend as much as a year in prison and lose his license for 4 years. That's what happens when you have an experienced and effective lawyer who isn't afraid to try your case!

The Rules of Physics Don’t Apply In the Courtroom

I represented a young man who was charged with driving while impaired. He was driving a front wheel drive car at a night when it had recently rained, leaving the road damp.

The policeman first noticed him when he pulled up to a stop sign. The policeman testified that he came to the stop sign, stopped, and then spun his tires for approximately 50 feet as he made a left turn. The policeman then went on to testify that he followed him for about two miles (until he was about to leave the policeman’s jurisdiction) and that my client only weaved within his lane, never crossing any lines.

The policeman testified in District Court that my client did nothing else wrong; specifically that he was not speeding or violating any other traffic law during the time that officer followed him. In Superior Court, the officer changed his tune. The officer testified in Superior Court that my client was actually speeding when he was following him. In all of my cases, I record the District Court testimony, but for some reason I did not record this District Court hearing. So I had to be creative.

I called the District Court Judge as a witness, the one who had ruled against us in District Court. I asked the Superior Court Judge if it was proper to do that and he opined that it if the Judge had relevant testimony he would certainly hear it. I asked the Judge and he offered to go get his notes on the case (which he keeps on all cases), and said that he remembered clearly that the officer had said that there was no violations or speeding as he followed the defendant.

The Superior Court Judge had already ruled against me but agreed to reopen the hearing for the District Court Judge’s testimony, and upon hearing it, granted my motion and dismissed the driving while impaired charge against the defendant.

I also found it interesting that the rules of physics apparently do not apply to traffic cases. If you are spinning your front tires you can’t turn, and the officer testified that the defendant spun his tires continuously as he turned left. The Judge, who is an automobile enthusiast, found that interesting and persuasive, but he eventually ruled that if the policeman testified that the defendant was speeding that gave him the right to stop the defendant.

There are several morals to this story: 1) Never give up. 2) Enforce the laws of physics. 3) Always record your hearings in District Court, and 4) sometimes the truth will triumph after all.

Weaving is Not Enough

I represented a young man who was leaving a city parking lot at about 1:00 a.m. when he passed a very experienced and aggressive city police officer coming into the lot.

My client was driving a Ford F-150, and the officer testified that he noticed that the driver looked at him and gave him the “one thousand yard stare”. The officer testified that gave him a 35% probability that the driver was impaired.

There are several bars within walking distance of that parking lot, but there are also several other restaurants and businesses establishments as it is a downtown area.

As my client drove away, the officer testified that he was continuously weaving in his lane, touching but not crossing the double yellow line on two occasions. There were no other violations.

When the officer activated his blue lights to pull my client over, my client pulled over deep into a parking lot rather than the outside edge, something the officer found suspicious.

The Judge ruled that there was not a reasonable and articulable suspicion to stop my client. He found that the fact that there was bars nearby was not sufficient even with the weaving and it being late at night to justify the stop of my client’s truck.

He found that pulling deep into a parking lot was something that someone who didn’t want his encounter with the police to be observed by every passerby, and he found that not to be suspicious.

Based on the totality of the circumstances, the Judge found that officer had no right to stop my client, and so he suppressed all the evidence gathered after the stop and dismissed all charges against him.

The moral of the story: weaving in your lane is staying in your lane!

Flashing Lights Make Your Eyes Unsteady

I represented a young man in a rural community who was stopped for driving while impaired. It would have been his third conviction in seven years and thus would have led to substantial jail time, a permanent revocation of his driving license, and all variety of difficulties associated with multiple driving while impaired convictions.

I realized immediately that the trooper who had stopped him had been proven dishonest in another court in North Carolina. I spent a lot time gathering records of that dishonesty (he testified that he had pulled people for a seatbelt at night, and also testified that he could not tell if people were really wearing their seatbelt at night). I eventually was able to get the Judge to order all of those records delivered to me including the officer’s personnel records, but I did not succeed in making that work for my client.

On the other hand, I believe these activities informed the Judge that the officer’s testimony should be viewed with a grain of salt. Eventually we had a hearing about whether there was probable cause to arrest my client. The rules for probable cause come out of an old U.S. Supreme case called Terry v. Ohio.  In Terry, the U.S. Supreme Court ruled that the officer has to have probable cause to believe that the defendant is or is about to commit a criminal offense before he arrests him. In this case the police officer testified that my client stopped at stop sign but then waited too long to move forward. When he got him out of the car he gave him an eye test, known as the HGN test.

The HGN measures an involuntary jerking of your eyes (nystagmus) that allegedly comes on sooner and is more pronounced if you have been drinking. Luckily, the Judge that was presiding that day was a former district attorney with whom I have a long and cordial relationship. She is fair minded and smart, and she and I have been through the field sobriety test manual on many occasions. I always bring the field sobriety test manual with me to court and I have taken several courses on field sobriety tests, including one where I was nationally certified as a field sobriety tester. That expertise allowed me to question the officer about his technique on the HGN test, and allowed me to ask the officer in which direction the defendant was facing when he gave him that test.

The officer had earlier admitted that he had left his blue lights flashing during the entire encounter as officers are directed to do in their training for the safety of clients and officers.

In this case, I argued that if his lights were flashing and my client could see them, that could cause a false jerking in his eyes which would mimic nystagmus, and thus would make the results of that test unreliable. The Judge, being familiar with the field sobriety testing manual and the rules for HGN test, found that finding nystagmus with lights flashing in my clients face was not enough to reveal whether or not my client was impaired, and granted my motion to dismiss all charges.

Loud talking in a loud bar does not prove you are impaired

I represented a gentleman in District Court and on appeal to Superior Court who had an interesting situation. He was in a bar when an off duty policemen arrived.

That policeman said he noticed my client and thought he was drunk because he was talking loud in a crowded bar. When my client left, he got into his SUV and backed into a motorcycle that was parked directly behind his vehicle. It was completely hidden from view the drivers side or the drivers seat of the car.

When the cops arrived, they asked him to do some field sobriety tests, which he did exceptionally well. He also took a portable breath test.

Those that have read my card know that I suggest you not take a portable breath test or field sobriety tests but my client was confident that he would blow under the legal limit. Unfortunately, he didn’t. He was convicted in District Court despite my efforts and we appealed to Superior Court. When we prevailed in Superior Court, the State appealed that decision. I did not represent him in the Court of Appeals as I do no appellate work, but I worked closely with his appellate lawyer.

In September, the Court of Appeals agreed with the Judge and I and granted my motion to suppress all the evidence gathered against my defendant. The Court noted that the case was improperly dismissed by the Court. Before the case is dismissed the motion to suppress must be upheld and soon as that happened the District Attorney announced their intention to appeal. I didn’t forget to move to dismiss, I just made a tactical decision not to make that motion prior to the motion to suppress being granted.

Because of this ruling, the law in North Carolina has changed. After this case, a positive portable breath test along with an accident and an odor of alcohol is not considered probable cause to arrest. So score one for the good guys, and the Judge for making a brave and proper ruling, and especially for his appellate attorney for doing an excellent job.

If You Don’t Give Me A Fair Chance You Can’t Say I Refused Your Test

I represented a gentleman who came to me with a very complicated case. He had left a friend’s house, backed out of the driveway, and turned left onto the road. If he had turned right, he would have come upon a checkpoint. Despite the truth of the matter, an officer from the checkpoint asserted that he had come towards the checkpoint and made a u-turn. He was pulled over for avoiding a checkpoint, which he did not do, and he was taken to the police station for a breath test. Despite the fact that he was not exhibiting signs of drunkenness, his first breath test (after some trouble) was .17. It took the officer at least three tries to get that sample. My client attempted to give a second sample into the breath test device. The trooper gave him one try, which was unsuccessful, and as my client began the second attempt the trooper took the breath tube from him and declared that he had refused. My client urged the trooper to allow him to provide a correct sample, but the trooper was unwilling to afford him that courtesy. So he came to me with a .17 breath test that was admissible, and a refusal that can lead to a year of license suspension. Under the North Carolina Law if you blow a number and then refuse, the number is admissible.

I first argued that the stop of his vehicle was improper as he did not avoid the checkpoint but only backed out of a driveway and turned away from it. I have successfully argued that avoiding a checkpoint is not a valid reason to stop. Inexplicably, the Judge did not believe my client and his witness or the law and so he denied my motion to suppress. Then I argued that he had not willfully refused since he was given three chances to provide his first sample (and the trooper testified that he had not refused during that process) he must be given at least that many chances to provide a second sample. The court found that he had not willfully refused, and thus the .17 was inadmissible. Since he had the foresight and knowledge to refuse to take the field sobriety tests, and the alleged refusal was inadmissable, the District Attorney did not have enough evidence to prosecute on driving while impaired. All charges against him were dismissed.

The moral of the story is: if the police ask you to do it, it is probably a bad idea, and so you should politely but firmly refuse. So there you have it, a .17 and a refusal driving while impaired case was found not guilty. As I always say, it’s not the number that matters; it is the process by which the number was obtained.