Articles Posted in DUI/DWI

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Charlotte DWI and Criminal Defense Attorney J. Bradley Smith of Arnold & Smith, PLLC answers the question “Can the police search my car without a warrant?”

 

The Minnesota Court of Appeals recently issued a long-awaited opinion concerning the constitutionality of the state’s implied consent law. The Appeals Court affirmed the law, holding that a warrantless breath test qualifies as a valid search so long as it is connected to a lawful arrest.

 

Glass of beer Charlotte DWI Lawyer Mecklenburg Criminal Defense LawyerIn Minnesota, anyone who chooses to drive a vehicle is said to have consented to a chemical test of his or her blood. This means the person must agree to a test of his or her blood, breath or urine to determine intoxication if a police officer has probable cause to believe the person was drunk driving and has been arrested and charged with such a crime.

 

If a person ultimately refuses to allow such a test, then he or she will not be forced into submission. Instead, the driver will have his or her license revoked and face a possible criminal charged related to the refusal to submit to chemical testing.

 

In the Minnesota case, the defendant challenged the state’s implied consent law by arguing that the law forces a person to submit to what amounts to an unconstitutional search as a condition for maintaining a driver’s license. The Court, unfortunately, disagreed and said that the search in this case was a valid one.

 

Though many critics of the implied consent law were disappointed with the result, some took comfort in a concurring opinion by the Chief Judge on the Appeals Court. In a separate opinion, the Chief Judge noted that the decision applies only to cases of warrantless breath tests, not blood or urine tests. Many viewed this as an attempt to open the door on challenges to such tests.

 

What about implied consent in North Carolina?

 

North Carolina drivers may not realize that similar laws exist here. North Carolina has an implied consent law which says that those arrested for a DWI have already impliedly consented to having a chemical test done for the purpose of determining blood alcohol content. The law basically says that in exchange for being granted the privilege to drive a vehicle in the state, you have given up your right to refuse to provide a breath, blood, or urine sample for a chemical test after being arrested on suspicion of drunk driving.  The penalty in North Carolina for refusing to provide such a sample, and therefore violating the implied consent law, is a one-year suspension of one’s driving privilege.  In North Carolina, the test to determine blood alcohol content can be taken at any relevant time after driving.  Courts have interpreted this “relevant time” to mean up to several hours after the person was last seen behind the wheel.

 

Your rights

 

Though drivers are said to have impliedly consented to blood alcohol content tests, it is important to note that these tests cannot be ordered on a whim. Instead, police officers must first have established probable cause to suspect that a person was driving while impaired. This must be supported by actual evidence, not just a guess. Additionally, drivers also have the right to consult with an attorney for advice regarding a potential chemical test and can also request a witness to observe the procedure. The important caveat here is that you have 30 minutes from the time at which you were informed of your rights to call an attorney or a witness. The BAC testing will not be delayed longer than 30 minutes.

 

The big factor to note when considering your rights and whether or not to refuse to provide a sample for a blood alcohol content test is that even if you are denied your right to contact an attorney or witness, that violation alone will not save you from the penalty of violating the implied consent law.  North Carolina courts have continuously held that even if certain rights are violated with regard to availability of witnesses and attorneys to view or consult prior to submitting a sample, a driver can still be punished for “willfully” refusing to comply with the implied consent law.

 

However, just because an officer states that you refused is not the end of the story.  Anyone who has been revoked for a refusal may request a hearing before a DMV hearing officer for a determination of whether the refusal revocation should be sustained.  This hearing must be requested within ten days of the revocation, so time is of the essence if you have been charged with refusing to provide a sample.

 

Penalty

 

If you refuse to submit to a chemical test, North Carolina’s implied consent law contains a harsh punishment: license revocation. The law says that someone who refuses to submit to such a test will have his or her license revoked for a period of 12 months.  Furthermore, at least six months must pass before a driver is eligible for a limited driving privilege.  Thus, should you willfully refuse to provide a blood, breath, or urine sample upon the request of an officer after being charged with DWI, be prepared to be without a license for at least six months.

 

 

Our attorneys at Arnold & Smith, PLLC routinely appear before the DMV for refusal hearings, so if you are facing a refusal revocation, please give me a call to set up an appointment today. Arnold & Smith, PLLC is a Charlotte based criminal defense, traffic violation defense and civil litigation law firm servicing Charlotte and the surrounding area. If you or someone you know need legal assistance, please contact Arnold & Smith, PLLC today at (855) 370-2828   or find additional resources here.

 

 

About the Author

Brad Smith Charlotte Criminal and DWI LawyerBrad Smith is a Managing Member of Arnold & Smith, PLLC, where he focuses on the areas of criminal defense, DUI / DWI defense and traffic defense.

Mr. Smith was born and raised in Charlotte. He began his legal career as an Assistant District Attorney before entering private practice in 2006.

In his free time, Mr. Smith enjoys traveling, boating, golf, hiking and spending time with his wife and three children.

 

 

Sources:

http://www.startribune.com/appeals-court-upholds-law-in-breath-test-refusal-case/318667551/

 

 

Image Credit:

http://www.freeimages.com/photo/beer-1326297

 

 

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Charlotte DWI Lawyer Brad Smith of Arnold & Smith, PLLC answers the question “What should I do if I have been pulled over and I have been drinking ?”

 

As the Kerrick trial dominates the Charlotte headlines, a different trial attracted the attention of Raleigh residents last week.  On July 27, trial commenced in an action against a Raleigh couple accused of providing alcohol to minors at a 2014 wedding.  Raleigh-based neurologist Dr. Charles Matthews, 59, and his wife, Kimberly Matthews, 52, were on trial in Wake County Superior Court, charged with four counts of aiding and abetting underage possession and consumption of alcohol.

Car Accident Charlotte DWI Lawyer Mecklenburg Traffic AttorneyJonathon Taylor was one of the guests at the wedding.  The 18-year-old had recently graduated from Ravenscroft High School in Raleigh, and was set to attend the University of South Carolina in the fall of 2014.  Sadly, Taylor never made it home.  He was killed in a single-car accident after his car left the road and hit a tree.  His blood-alcohol level at the time of the crash was .20—two-and-a-half times the legal limit for adults.

Prosecutors alleged that Taylor was one of several teens served wine by caterers at the wedding reception.  “They were pouring and setting it out,” said Mary Anna Ergsh, one of the other teens at the reception.  “Nobody asked for IDs or anything.”

The question before the jury was whether the Matthewses were criminally responsible for providing that alcohol to the minors.  On July 31, the jury answered that question in the negative, and the Matthewses were acquitted on the four counts of aiding and abetting the consumption of alcohol by minors.

However, the couple is not out of the woods yet.  In early July, the Taylors filed a civil suit under a law that makes businesses that serve and sell alcohol liable for injuries caused when a person underage is served.  The Matthewses were later added to the suit.

N.C. Gen. Stat. § 18B-121, a statute within “North Carolina Dram Shop” law, establishes the liability of licensed establishments such as restaurants, bars, and liquor stores that negligently furnish alcohol to underage people who subsequently cause death or injury to others in alcohol-related crashes.  Only an “aggrieved party” has a claim for relief for damages against a licensed establishment under the statute.

Although “aggrieved parties” are typically those physically injured as a result of a crash caused by an underage person (e.g., a person physically injured by an 18-year-old drunk driver sues the ABC store that sold the 18-year-old the liquor), a 2002 N.C. Court of Appeals decision (Storch v. Winn-Dixie Charlotte, Inc.) held that the parents of an underage person could also be included in the definition of an “aggrieved party.”  Their “injuries” may include funeral expenses of the underage person, as well as damages for loss of services, society, companionship, and support.  The Taylors will certainly reference the Winn-Dixie decision in their civil suit against the Matthewses, the caterers, and the local wine and beer store that supplied the alcohol for the reception.

Jonathon Taylor’s death should serve as a wake-up call to parents who turn a blind eye to underage alcohol consumption at their residence.  Before last week’s criminal trial, Wake County District Attorney Lorrin Freeman stated:  “Underage drinking is a very serious problem in our community that leads to the deaths of many promising young people.  Until we stand together as a community against parents who have a kids-will-be-kids attitude, we will continue to lose promising young adults way too soon.”

On June 28, 2014, a promising young adult was lost due to underage drinking, leaving Greg and Carrie Taylor without their only child.

If you or someone you know has been charged with a crime and is in need of the services of an experienced criminal defense attorney, please give me a call to set up an appointment today. Arnold & Smith, PLLC is a Charlotte based criminal defense, traffic violation defense and civil litigation law firm servicing Charlotte and the surrounding area. If you or someone you know need legal assistance, please contact Arnold & Smith, PLLC today at (855) 370-2828   or find additional resources here.

 

 

About the Author

Brad Smith Charlotte Criminal and DWI LawyerBrad Smith is a Managing Member of Arnold & Smith, PLLC, where he focuses on the areas of criminal defense, DUI / DWI defense and traffic defense.

Mr. Smith was born and raised in Charlotte. He began his legal career as an Assistant District Attorney before entering private practice in 2006.

In his free time, Mr. Smith enjoys traveling, boating, golf, hiking and spending time with his wife and three children.

 

 

Sources:

http://www.newsobserver.com/news/local/crime/article27302533.html

http://www.ncga.state.nc.us/EnactedLegislation/Statutes/HTML/BySection/Chapter_18B/GS_18B-121.html

http://caselaw.findlaw.com/nc-court-of-appeals/1197191.html

http://abc11.com/news/couple-not-guilty-in-fatal-teen-crash-son-sentenced/895492/

http://www.ncga.state.nc.us/EnactedLegislation/Statutes/HTML/BySection/Chapter_18B/GS_18B-302.html

http://www.newsobserver.com/news/local/crime/article29114758.html

http://www.wral.com/raleigh-couple-charged-with-providing-alcohol-to-teen-prior-to-fatal-crash-say-case-is-discriminatory-/14771618/

http://abc11.com/news/parents-accused-of-aiding-underage-drinking-on-trial/888488/

 

 

Image Credit:

“Verkehrsunfall L261 04” by Huhu Uet – Own work. Licensed under CC BY 3.0 via Wikimedia Commons – https://commons.wikimedia.org/wiki/File:Verkehrsunfall_L261_04.JPG#/media/File:Verkehrsunfall_L261_04.JPG

 

 

See Our Related Video from our YouTube channel:

http://www.youtube.com/user/ArnoldSmithPLLC?feature=watch

 

 

See Our Related Blog Posts:

Say ‘No’ to alcohol breath test? Prepare to have your blood drawn

Can You Be Arrested For Drunk Driving In North Carolina Without Actually Driving A Car?

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Charlotte DWI and Criminal Defense Attorney J. Bradley Smith of Arnold & Smith, PLLC answers the question “Are breath test results always accurate?”

You thought it was July 4th weekend? You’re right, but it’s also “No Refusal Weekend” in Eugene, Oregon. Local and state police in Eugene plan to have prosecutors and judges on standby this weekend to obtain “blood draw warrants” against drivers who refuse to submit to alcohol content testing.

Gas and alcohol Charlotte DWI Lawyer North Carolina DUI AttorneyThis will prevent “people from avoiding full accountability,” police said. The U.S. Supreme Court confirmed in a 2013 case that police must obtain a warrant before drawing a person’s blood, except in cases of emergency. That case was called Missouri v. McNeely.

The program in Eugene is unique because, evidently, prosecutors and magistrates will be available to issue warrants quickly. The local chapter of the American Civil Liberties Union gave its blessing to the arrangement; a representative said more warrants in blood-draw cases was a “good thing.”

This could be the dawn of the age of warrants en masse, as litigation in the wake of the McNeely decision may show.  Many people consent to blood draws. Lawyers are now arguing that McNeely requires courts to consider whether, in the totality of the circumstances, consensual blood draws done without a warrant are constitutional.

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

 

Law enforcement officials across the State of North Carolina have agreed to join forces yet again to combat drunk driving. This year marks the fourth anniversary of State Highway Patrol officers working in conjunction with the Wildlife Resources Commission and the Alcohol Law Enforcement division to bust impaired drivers.

 

empty bottle Charlotte DUI Attorney North Carolina DWI LawyerThe law enforcement groups will work together to crack down on drivers as well as boaters, a campaign dubbed “On the Road, On the Water, Don’t Drink and Drive.” The groups say that alcohol is responsible for hundreds of accidents, both on land and on water, and that the joint collaboration between the agencies can help lead to greater success.

 

In North Carolina, the law says that it is illegal for a driver in a motor vehicle to drink while operating the vehicle. Additionally, anyone found to be operating a motor vehicle with a BAC greater than 0.08 percent faces drunk driving charges. The law differs slightly with regard to boaters, given that boaters are allowed to consume alcohol while operating their boats. However, boaters are held to a similar standard of intoxication and can be charged with Boating while intoxicated, or BWI if found to have a BAC greater than 0.08 percent.

 

The agencies say they will work together between Memorial Day and Labor Day, a traditionally busy time for drunk driving arrests. Checkpoints will be put in place across the state, both on land and on water, to ensure that drivers out for a good time are not legally impaired.

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Attorney J. Bradley Smith answering the question: “What happens if I am convicted of a DUI or DWI in North Carolina?”

 

Though it may sound crazy, it is actually possible for people to be arrested and charged with drunk driving in North Carolina without being found driving a vehicle. How could that happen? Keep reading to find out more about what North Carolina law says about drunk driving.

 

Hands on steering wheel Charlotte DWI Attorney North Carolina DUI LawyerWhat does the law require?

 

The law in North Carolina clearly says that for a person to be convicted of impaired driving, he or she must be found to operate a vehicle while under the influence of an impairing substance. Though this may seem clear cut, the statutes further specify this broad statement and explain that a person can be found to have “operated” a car if he or she is in actual physical control of that vehicle.

 

Actual physical control

 

Actual physical control has been defined by many courts as when a driver has the keys to the vehicle either in the ignition or near the ignition and has the ability to operate the car on short notice. Though the person may not actually be driving, it would not take much effort to put the car into motion, thus endangering others.

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Attorney J. Bradley Smith answering the question: “What should I do if I have been pulled over and I have been drinking?”

 

A man from Gaston County, NC was arrested this week and now stands accused of drunk driving in an accident that took place earlier this year and left a man dead. Anthony Lamar Ogden, 59, was arrested and charged with felony DUI in which death results. He’s now being held without bond in a York County Detention Center.

 

Broken drinking glass Charlotte Mecklenburg DWI Lawyer North Carolina Criminal Defense AttorneyAccording to authorities, Ogden was one of three drivers involved in a three-vehicle pileup, which happened back in January. The crash occurred on U.S. 21 just about a mile south of Fort Mill. The crash began a little before 7 p.m. when cars driven by Sherrell Wright and Alva Terrell had come to a stop on U.S. 21. Shortly thereafter, Ogden crashed into the back of Terrell’s Chevrolet, which was then pushed into the back of Wright’s Nissan.

 

Police say that while all three drivers were thankfully wearing seat belts at the time of the crash, the severity of the accident was so great that serious harm resulted nonetheless. All three drivers were taken to area hospitals for treatment of their injuries, though Terrell, who absorbed the brunt of the impact of the crash, suffered the most serious injuries. Terrell died three days after the accident at Carolinas Medical Center in Charlotte.

 

According to family members, Terrell was on his way home from a shift at Walmart where he worked as a cashier. The 74-year-old man was taking blood thinners, which contributed to his death because emergency medical responders and doctors struggled to control his bleeding.

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Attorney J. Bradley Smith answering the question: “What happens if I am convicted of a DUI or DWI in North Carolina?”

 

One drunk driver from Lincoln County, North Carolina is facing some serious criminal charges this week after police say he dragged an officer nearly 40 feet and later spit blood in the man’s face.

 

Dead End Sign Charlotte DWI Lawyer North Carolina DUI AttorneyAccording to authorities, the encounter began at around 11:30 p.m. last Wednesday when 20-year-old Jake Nelson was spotted running a red light on Highway 16. An officer saw Nelson and tried pulling him over. However, rather than comply, Nelson chose to run, a decision that could now cost him dearly.

 

After speeding away from the officer, Nelson is said to have driven off down several smaller side roads, nearly losing control of his vehicle at one point. Finally, Nelson ran out of room to drive after making a wrong turn down a dead end street. The arresting officer approached Nelson’s car, but the young man initially refused to roll down the window. After a while, Nelson agreed to crack the window, at which point the officer says he clearly smelled alcohol.

 

Backup soon arrived to help the first officer arrest Nelson who still refused to get out of the vehicle. The first officer then stuck his arm through the cracked window to try and unlock the door when Nelson rolled the window up and put the car into drive. The vehicle then slowly rolled for more than 40 feet, dragging the officer the entire way.

 

Police say they were only able to subdue Nelson after the officer whose hand was caught in the door finally got ahold of his Taser and used it on the young man. In the subsequent tussle, police say nelson spit blood on the officer.

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Attorney J. Bradley Smith answering the question: “What happens if I am convicted of a DUI or DWI in North Carolina?”

 

In light of pop star Justin Bieber’s recent arrest for drunk driving in Miami, many have begun paying closer attention to local laws concerning underage drinking and driving. The reason is that some were surprised to hear that Bieber had been busted after police found him driving with a blood alcohol level well below the 0.08 percent that many assume is standard.

 

Bottles of Beer Charlotte DWI Lawyer North Carolina Criminal Defense AttorneyIn Bieber’s case, Florida’s law says that a person under 21 can be arrested and charged with drunk driving if they are found to have a BAC of 0.02 percent or above. This might come as a shock to many people who automatically assume the 0.08 percent applies to all drivers across the board.

 

Young drivers in North Carolina should realize that a similar law exists in this state which can lead to young people being arrested with far lower levels of alcohol in their system than would be required for drivers over 21. North Carolina’s law is actually even stricter than the one in Florida, with legislators here adopting a zero tolerance approach. That means that any driver under 21 who is found to have any alcohol in his or her blood whatsoever, even something as small as 0.01 percent, could be cited for impaired driving.

 

The rules can be so strict for young drivers because the state’s law clearly explains that it is illegal for anyone under 21 to consume alcohol except for in several very narrow circumstances. These circumstances include religious reasons, medical requirements or educational purposes (chefs and others that might need to cook with wine).

 

Though drivers under 21 make up a relatively small share of the overall drivers in the state, only about 10 percent, the account for a disproportionately higher share of all DUI related deaths every year, 14 percent. Given this disparity, legislators have long felt that a strict approach was the best way to ensure everyone’s safety on the roads.

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Attorney J. Bradley Smith answering the question: “How can an attorney help me with my DWI?”

 

Those busted for drunk driving in North Carolina understandably have a million questions following the arrest. Some common examples include how much will the arrest end up costing, is jail time possible and what impact will the arrest have on your future?

 

Handcuffed hands Charlotte Drunk Driving Lawyer North Carolina DWI AttorneyAnother one of the most common questions involves a best case/worst case scenario. Drivers often feel better knowing what the range of possible outcomes is in their case. Though nothing is absolute and your particular circumstances will greatly impact the outcome, the following are some good examples of possible best case/worst case scenarios.

 

The first thing to note is that the law can be surprisingly severe even for first-time offenders. North Carolina’s drunk driving law says that drivers will face fines, possible short jail times or community service, court costs and a suspended license. However, there are a variety of other factors that can ratchet these punishments upward.

 

Specifically, the law accounts for what are known as “aggravating” and even “grossly aggravating” factors, which can increase the severity of punishments facing first-time offenders. Examples of such aggravating factor include arrests while transporting a minor child, having exceptionally high blood alcohol content or prior drunk driving offenses on your record.

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Attorney J. Bradley Smith answering the question: “Is there more than one way for police to convict a DWI?”

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In a sad case out of Raleigh, one young man is behind bars after he hit and killed two others who were stopped on the side of I-40 last weekend. The accident occurred around 8 p.m. on I-40 in Raleigh and ended with 21-year-old Marshall Doran facing serious criminal charges.

 

Beer Can Charlotte DWI Lawyer North Carolina Drunk Driver AttorneyAccording to police, the deadly evening began when a tractor-trailer driven by Cardell Gayfield hit a patch of snow and began to lose control. His truck eventually spun out and ended up off the side of the road near U.S. 70. Two other passing motorists stopped their cars to see if they could help Gayfield and right as they did Gayfield says he noticed an oncoming vehicle moving towards them at around 60 miles per hour. The next thing Gayfield noticed was an interstate sign shaking as if it had been hit by a car and looked down to discover that both men had been hit.

 

Police say they don’t yet know where the two good Samaritans were standing when Doran’s 2001 Volvo struck them, but they are working with crash scene investigators to reconstruct what happened that night. They do know that after the deadly accident, Doran fled, leaving both men’s bodies on the side of the road.

 

Police say that they used cop cars and a helicopter to search the area for Doran’s Volvo and eventually found Doran hiding in the woods about 10 miles away from the accident scene. Doran eventually walked out of the woods, where police then arrested him. Authorities say that Doran was initially charged with second-degree murder, but that his charges have since been reduced to felony death by motor vehicle.

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