Charlotte DWI Lawyer Brad Smith answers the question: “What steps should I be taking outside legal guidance to help my DWI case?”
Two (2) new deadlines for DWI trials in North Carolina took effect at the beginning of this month, and it’s a mixed bag for defendants.
One of the amendments, generally applauded by defense attorneys, now requires prosecutors to give defendants results of their blood or urine tests no later than 15 business days after the state receives them. Under the previous version of the law, prosecutors could wait until 15 days before trial to turn over the chemical analysis.
The change is a step in the right direction, but problems remain under the current law. First, the new law does not appear to require prosecutors to ever actually provide the lab results to a defendant’s attorney, just the defendant. Reasons ranging from embarrassment to forgetfulness could prevent a defendant from passing on the information to his or her attorney and damage their defense.
In addition, the new law does nothing to address the months-long delays affecting the state crime lab located in Raleigh. Some defendants are still waiting for lab results for DWI offenses over a year ago—and so are the prosecutors. The backlog in the crime lab is unlikely to be resolved without the money to hire more lab workers. Under the new law, defendants could still be waiting until 15 days before trial to receive their lab results.
The second change in the law is even less promising. Defendants who want to be able to cross-examine the lab analyst who completed their results at trial are now required to demand the analyst’s appearance within five (5) business days of the first court proceeding for which the state provided notice.
If the defendant does not demand that the lab analyst appear by this 5-day deadline, the defendant is considered to have automatically waived their right to question the analyst’s methods or findings.
This puts defendants who do not obtain an attorney until after their first hearing at a considerable disadvantage. If a person represents themselves at their first court hearing and does not know about the change in the law, he or she essentially loses their right to confront that particular accuser at trial. This right is referred to as the right to Confrontation, and it is theoretically protected by the Sixth Amendment to the U.S. Constitution, which guarantees due process to those accused of crimes.
Proponents of the law have said that the change is attempting to address court-scheduling problems, pointing out that although the new rule does make things more predictable for the state, the judge asks a defendant in his first court hearing whether or not he needs or has an attorney. In a perfect system, every defendant would have retained or been appointed an attorney by that first hearing, who would then take the proper steps to preserve the defendant’s right to cross-examine the lab tech at trial.
As far too many who have been involved in the criminal justice system before know, however, this is frequently not the reality. Many defendants opt to represent themselves pro se, or refuse a public defender so that they can later hire a private attorney after pooling their resources. Those individuals could easily slip through the cracks in favor of the prosecution.
If you or someone you know has been charged with a crime, please contact the experienced criminal defense attorneys at Arnold & Smith, PLLC. Our attorneys stand at the ready to defend you against state or federal charges. Please contact Arnold & Smith, PLLC today at (704) 370-2828 or find additional resources here.
About the Author
Brad 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.
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