Charlotte Criminal Lawyer Blog

Attorney J. Bradley Smith answering the question: "Should I talk to the police?"

The Supreme Court handed down a major ruling last month in the Missouri v. McNeely case. The justices decided to reject the argument advocated by Missouri and the Obama administration that officers should never be required to secure a warrant prior to procuring a blood test against suspected drunk drivers. Instead, the Court decided that police officers should usually obtain judicial approval prior to ordering a blood draw.

The case revolved around Missourian, James McNeely's 2010 arrest. After being pulled over by a state trooper, McNeely failed several field sobriety tests and then refused to submit to a breathalyzer test to determine his blood alcohol level. Given his refusal, the officer took McNeely to a local hospital where he was strapped to a table and had his blood forcibly drawn, all without ever bothering to secure a warrant.

McNeely attempted to block the blood test from appearing in court, arguing that the results were illegally obtained. Prosecutors claimed that given the time of night and location of the arrest, that a warrant would have been impractical and taken at least two hours to secure. This delay was unacceptable, in their opinion, given that it might allow enough time for alcohol to leave McNeely's system.

Justice Sotomayor, writing for the majority, rejected Missouri's argument and decided that the police almost always have enough time to properly secure a warrant before forcing a blood draw. Sotomayor was willing to concede that some cases might require extraordinary actions without a warrant, but said that such instances would be dealt with on an individual basis.

Continue reading "Supreme Court Issues Important Ruling Regarding Warrantless Blood Tests :: Charlotte North Carolina DWI DUI Criminal Attorney Lawyer" »

Attorney J. Bradley Smith answering the question: "Should I ever plead guilty to a charge?"

In an interesting case involving drunk driving arrests, our very own Brad Smith has been in the news recently, arguing that police in Charlotte need to make some serious changes to the way they process suspected drunk drivers. The issue arose after one of Brad Smith's clients was recently arrested after leaving an Uptown bar.

The man said police pulled him over almost immediately after getting in his car and that he was given multiple breath tests by the arresting officer. The final such test indicated that the man had a blood alcohol concentration of 0.11, just over the legal limit of 0.08. The defendant vehemently denied being drunk and wanted the chance to prove his innocence by having his blood taken and analyzed independently. Sadly, due to the slow police booking process the man never got the chance.

After being arrested, the driver was taken to jail, arriving at 3:20 a.m., was granted bond by a magistrate a little after 5 in the morning but was not officially released from the jail until 3:45 p.m. That means that the man remained in jail for more than 12 hours after his initial arrest, totally denying him the opportunity to collect a breath or blood sample of his own.

Given this lengthy delay, Brad Smith filed what's known as a Knoll motion, claiming that his client had been denied a reasonable amount of time to prepare his own defense. A Mecklenburg County judge agreed and dismissed the charges against the man late last month.

Continue reading "Lengthy Mecklenburg County Jail Processing Times Leads To Dismissal Of Drunk Driving Charges :: Charlotte North Carolina DWI DUI Criminal Attorney Lawyer" »

Attorney J. Bradley Smith answering the question: "Should I talk to the police?"

A very interesting story appeared in the Boston Globe last week and compared the surprisingly few DUI arrests in that city to numbers from other similarly sized towns, including Charlotte. The results were surprising and revealed that Boston, home to the 10th largest metropolitan area in the country, only made 241 DUI arrests last year.

The shockingly few drunk driving arrests made by Boston police officers in 2012 is puzzling because it also represents a stark drop off from recent years. Only three years ago the number of people arrested for impaired driving was 33 percent greater than last year's numbers.

The 241 arrests are best viewed in comparison to the numbers from other similar cities. Denver, a slightly smaller city, made 3,000 DUI arrests in 2012. Philadelphia, a somewhat larger city, made 20 times the number of DUI arrests as Boston. Even here in Charlotte, with a significantly smaller metro area population, police made around 1,600 arrests in 2012, several multiples more than in Boston.

Continue reading "Boston DUI Arrests Pale In Comparison To Numbers Out Of Charlotte :: Charlotte North Carolina DWI DUI Criminal Attorney Lawyer" »

Attorney J. Bradley Smith answering the question: "Should I ever plead guilty to a charge?"

A Canadian man recently had his drunk driving charges dropped thanks to his acid reflux problems. The driver, Phil Coffey, from Ontario, was first pulled over in 2010 as part of a DUI enforcement campaign by local law enforcement authorities. Coffey was suspected of drunk driving and given two breath tests which showed he had nearly twice the legal limit in his system, 0.15. Despite these potentially damning results, Coffey got the charges dropped after explaining the impact acid reflux can have on such readings.

Coffey admitted from the beginning that he had been drinking the night of his arrest. He claims to have had three small glasses of wine over the course of three hours at a friend's wedding that he attended with his wife. Coffey also said he ate a large amount of greasy food that night, appetizers and a large pasta and beef entrée followed by dessert. His attorneys argued that this heavy meal combined with his acid reflux condition to lead to an inaccurate BAC reading. His reflux was especially out of control that evening because Coffey testified that he never took his prescription Nexium pill that day which works to control episodes of severe heartburn.

Coffey had his doctor testify that he suffers from moderate to severe acid reflux which causes a person to regurgitate stomach acid into their mouth. Coffey claimed that he finished his last glass of wine while leaving the wedding and was pulled over a short time later. This meant that there was enough unabsorbed alcohol in his stomach to be pushed back up into his mouth by his acid reflux at the time the BAC reading was taken.

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Attorney J. Bradley Smith answering the question: "Should I talk to the police?"

The North Carolina General Assembly has passed legislation that would ensure that individuals who are convicted in the state of human trafficking must register with local sheriffs as registered sex offenders.

The legislation was passed unanimously by the North Carolina House this week which would add another crime to the list of those that require registration with the state. The measure says that if the trafficking involved minors, or was committed with the intent of creating sexual servitude then registration is mandatory. The Senate passed the measure last month which means the legislation will now head to the governor for his signature.

The legislation will require that registered human traffickers alert sheriffs about where they live or if they decide to move. It also means that they will not be allowed to live near schools or day care centers and must also avoid working in positions that require interaction with children.

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Attorney J. Bradley Smith answering the question: "What is the difference between a misdemeanor and a felony?"

A potentially important bill has been introduced in the North Carolina legislature that could change the way law enforcement agencies handle marijuana possession offenses. The legislation, House Bill 637, would lower penalties for minor marijuana possession offenses.

The legislation would reduce penalties for possession of up to one ounce of marijuana. Those found to have such a small quantity of the drug would only be subject to a fine, changing the classification of possession to a civil infraction rather than a criminal offense. The bill would also reduce the punishment for those found guilty of possessing between one and one and a half ounces of marijuana by making the crime a Class 3 misdemeanor.

Currently, North Carolina law says that possession of a half ounce of marijuana or less is a criminal misdemeanor and is punishable with a fine of up to $200 and a possible suspended jail sentence. Possession of between a half-ounce and one and a half ounces is punishable with up to 45 days in prison and a $1,000 fine. Possession of more than one and a half ounces of marijuana is punishable with up to 8 months in prison and a fine.

Continue reading "North Carolina Legislature Considers Changes To Marijuana Laws :: Charlotte North Carolina DWI DUI Criminal Attorney Lawyer" »

Attorney J. Bradley Smith answering the question: "Should I talk to the police?"

Late last month the Supreme Court handed down a major criminal ruling concerning the use of drug-sniffing dogs. The case, Florida v. Jardines, was a close one, 5-4, and backed up a lower court's decision to declare evidence obtained after police used a drug dog outside a house that was being used to grow marijuana inadmissible in court. The High Court found that using the drug-sniffing dog, named Franky, to search the house from the front porch was a violation of Joelis Jardines' constitutional rights.

The case arose in 2006 when police were given information from an anonymous tip program that drug activity had taken place in the Jardines home. A few weeks later, officers decided to investigate the tip further and took Franky out for a walk, being sure to slowly go by the man's front door. Franky then made the alert that drugs were on the premises and the police used that alert to justify a warrant to search the residence. The search turned up 25 pounds of pot and led to Jardines' arrest on drug trafficking charges.

Jardines filed an appeal and eventually made his way before the Florida Supreme Court which found that using Franky as a basis for the search warrant was illegal. The Supreme Court was then required to sort through whether the police were allowed to use the drug sniffing dog from the front porch as a basis for the search.

Continue reading "U.S. Supreme Court Comes Down Against Intrusive Drug Dogs :: Charlotte North Carolina DWI DUI Criminal Attorney Lawyer" »

Attorney J. Bradley Smith answering the question: "Can I be arrested without evidence against me?"

News from the Attorney General indicates that there was a big rise in the number of North Carolinians who died as a result of domestic violence last year. The 15 percent jump, a rise of 16 deaths, brings the total dead in 2012 to 122. The rise has alarmed law enforcement officials who have now said that more will be done to stop domestic abuse before it turns deadly.

The statistics showed that out of the murders that took place last year, 78 of the victims were female and 44 were male. The offenders were overwhelmingly male, 104 versus 18 female offenders. A tragic statistic contained in the new reports is that out of the 122 people killed, seven had taken out protective orders at the time they were murdered.

Attorney General Roy Cooper said that Wake County saw the highest number of domestic violence murders, 11, while Mecklenburg County saw the second highest, with eight. Robeson County, a relatively small place in terms of population ranked much higher than expected, coming in fourth with five domestic violence murders.

Because law enforcement agencies believe more can be done to stem the rise in domestic violence deaths, the state legislature have proposed several bills aimed at increasing law enforcement's power to regulate the matter. One proposal would require that prosecutors be informed if those out on probation for domestic violence fail to satisfy their offender treatment programs. Another proposal, House Bill 209, would require that consent protective orders be treated like traditional protective orders.

Continue reading "Statistics Show 15% Rise In North Carolina Domestic Violence Deaths :: Charlotte North Carolina DWI DUI Criminal Attorney Lawyer" »

Attorney J. Bradley Smith answering the question: "Can I be arrested without evidence against me?"

A recent piece of legislation proposed by state Representative Pricey Harrison would create limits on how law enforcement agencies across the state would be allowed to use unmanned drones. The Bill would only allow the use of drones to help conduct searches and rescues as well as when there is a threat to life, potential serious damage to property, an imminent escape or destruction of evidence.

The bill says that drones could not be used to gather criminal evidence or collect data unless there has been a search warrant issued by a judge. Beyond a valid warrant, the only other exception is in cases whether there is a reasonable suspicion that someone's life is in danger.

The legislation was prompted by public outcry over reports of civilian police department acquiring drones to patrol the skies. Even more worrying was the lack of oversight for the potentially powerful surveillance tools. Few rules existed about who would control the devices or how they might be used. The bill was meant to try and reassure residents of North Carolina that drones will not be used in ways that violate their civil liberties.

The ACLU has come out in favor of the bill, saying that it's a good first step to protect residents' privacy. The ACLU of North Carolina is actively lobbying lawmakers to pass the bill which it says works to safeguard and regulate the use of drones early on before they have had the chance to proliferate across the state.

Continue reading "North Carolina Legislature Takes Up Drone Control Legislation :: Charlotte North Carolina DWI DUI Criminal Attorney Lawyer" »

Attorney J. Bradley Smith answering the question: "What is the difference between a misdemeanor and a felony?"

An employee of Macy's in Charlotte's SouthPark Mall was charged yesterday with embezzling more than $2,000 from the department store. The woman, Shamika Freeman, 27, was arrested over the weekend and later released from Mecklenburg jail on a $3,000 bond.

The woman was a cashier at Macy's and was questioned by company officials after they uncovered a series of suspicious transactions on her terminal. Managers at the store decided to inform policy after failing to resolve the situation and called Charlotte-Mecklenburg Police Saturday afternoon.

The woman admitted to Macy's management that she had made 17 fake refund transactions since last September. The cashier told her bosses that she knew in each case that the items that were being returned had never actually been paid for. The cashier then returned the items and placed the money on store gift cards and gave the gift cards to a currently unknown person.

Embezzlement is a kind of property crime. It happens when a person, who has been entrusted to manage or monitor someone else's money or property, steals all or part of that money or property for their own personal gain. The key to charging someone with embezzlement is that the person had legal access to another's money or property, but not legal ownership of it.

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Attorney J. Bradley Smith answering the question: "Should I talk to the police?"

A battle in the state legislature is brewing over a bill that would grant prosecutors dramatically more power in determining which juveniles are tried as adults. The legislation, House Bill 217, would allow prosecutors to decide whether to try children as adults so long as they are 13 or older and have been charged with certain serious felonies.

North Carolina law currently leaves the decision of whether to try a child in adult court up to juvenile court judges. The measure has sparked a huge outcry from judges and defense attorneys who say giving prosecutors so much power is a bad move. Many believe that judges are in the best position to weigh not only the best interest of the child, but also the best interest of the community before making such an important decision.

Some defense attorneys have worried that prosecutors, who are often required to appear tough on crime, will have very little incentive to keep children in the juvenile justice system. The problem is that the community is seldom made safer by trying kids as adults. Additionally, the children are almost never helped by being moved into an adult prison system that is not equipped to care for them or offer much in the way of rehabilitation.

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Attorney J. Bradley Smith answering the question: "Can I be arrested without evidence against me?"

It is tragic to think that there are people in prison in North Carolina today all because courts or police lost or discarded important evidence that could have been used to secure their freedom.

Rape kits, dirty sheets and blood samples are just some of things that have been tossed aside because courts and police officers simply did not know how valuable they would become in the future. As scientific understanding grew by leaps and bounds over the last several decades, evidence that could be used to free innocent suspects has increasingly been discovered to be lost forever.

One especially terrible tale of North Carolina's criminal evidence storage system is found in the case of Dwayne Dali. Dali was released from prison in 2007 after a nightgown that was part of the rape he had been convicted of was found and DNA tested after years of having been misplaced. While this is great news for Dali, there are potentially dozens or hundreds more who insist they are innocent yet will never be able to prove this because evidence surrounding their crime was either lost or destroyed.

The North Carolina Center on Actual Innocence has said it has run across 45 separate instances where DNA testing could definitively settle the issue of a defendant's guilt or innocence, but the evidence was either lost or destroyed. In 2001, legislators in the state passed a law that laid out which items should be kept in a case and for how long. It also created strict rules for how the destruction should proceed, with all destructions requiring approval by a judge only after defense attorneys and public defenders had been notified.

Continue reading "Serious Questions Raised About North Carolina's Lack Of Protections For Criminal Biological Evidence :: Charlotte North Carolina DWI DUI Criminal Attorney Lawyer" »

Attorney J. Bradley Smith answering the question: "Can I be arrested without evidence against me?"

The North Carolina Supreme Court issued an important ruling just last week making clear that those criminals sentenced to life in prison for murder, rape and other serious crimes during a period of the 1970s would truly be kept in prison for life.

The ruling comes about a month after the North Carolina Supreme Court heard arguments from attorneys for two inmates who said they should be released from prison according to the language of the laws then in place.

Curiously, North Carolina statutes between 1974 and 1978 stated that a life sentence was defined as a period of 80 years behind bars. While this seems like quite a lot of time, given the life expectancy of most people, good behavior and other time credits given for work in prison can cut this almost in half. This meant that some people sentenced to life during that time from could be nearing release if the prior statutory language prevailed.

Clyde Vernon Lovette and Charles Lynch, the two inmates seeking release, agued that they had earned enough credits for good behavior that their sentences should have been reduced allowing them to be released from prison. Lovette was in jail for a 1978 second-degree murder conviction while Lynch was convicted of two counts of second-degree burglary. Each man received a life sentence for his crime.

Continue reading "NC Supreme Court Says "Life Sentence" Means Prisoners Must Remain In Jail For Life :: Charlotte North Carolina DWI DUI Criminal Attorney Lawyer" »

Attorney J. Bradley Smith answering the question: "Should I talk to the police?"

A North Carolina woman pled guilty to stealing from her neighbor's dead child. The horrible incident took place in September of 2012 after a one-year-old boy drowned in a neighbor's pond after wandering away from his Rowan County, NC house.

The day of the young boy's funeral, two neighbors, Jessica Williams and Bobby Milam, broke into the family's home. While inside they stole some expensive items including jewelry and electronics which were found at a pawn shop and inside the mobile home shared by Williams and Milam. Several personal items were also stolen including a wall ornament, a picture frame and a book that contained the boy's birth certificate. Bizarrely, those same items were later found partially burnt in a fire pit behind their house.

A few days later police had zeroed in on the two and arrested and charged both with burglary. Just last week Jessica Williams pleaded guilty to her charges. Williams made what is known as an Alford Plea, meaning that she did not admit to the crime but did acknowledge that there was enough evidence to convict her. Under an Alford plea, the defendant must admit that sufficient evidence exists with which the prosecution could likely convince a judge or jury to find the defendant guilty beyond a reasonable doubt.

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Attorney J. Bradley Smith answering the question: "Can I be arrested without evidence against me?"

The North Carolina Chapter of the ACLU has announced that it is investigating actions by police departments across the state to purchase sophisticated military technology that it says may be used to spy on citizens. The action was prompted by the Monroe, NC police department's decision to reveal it would be spending $44,000 to purchase a drone of its own.

The Monroe City Council voted last week to authorize the purchase of a battery-powered mini-drone that contains a rotating infrared camera. The Monroe Police Department insists it will not use the drone to spy on innocent citizens and that it will put detailed procedures in place before the drone is ever used. They say they expect it to be used at crime scenes, in searches or in the case of natural disasters.

Despite these assurances, the ACLU has filed several public records requests with Monroe and other police organization across the state to obtain more information about exactly how such devices will be used. The ACLU has also filed such requests with Mecklenburg County along with 61 other police agencies in the state.

The state ACLU chapter has released a statement expressing its concern over the increasing use of military equipment and technologies by traditional law enforcement agencies. The group says its goal in filing these public records requests is to make sure that these frightening technologies and tactics are not being deployed without considerable oversight and that citizens' legal rights are still being upheld.

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