Charlotte Criminal Lawyer Blog

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

A new push by the National Transportation Safety Board has some worried about a continuing decline in what amount of alcohol qualifies a driver as impaired. The NTSB recently released a recommendation that said all states, including North Carolina, should decrease the threshold for what constitutes drunk driving.

Currently, state law says that drivers with a 0.08 BAC or above can be charged with drunk driving. The NTSB says that it believes states should decrease the number to 0.05 percent BAC. The push is part of what the NTSB says is a larger goal of completely eliminating drunk driving in the United States, something it says is responsible for far too many deaths each year.

The NTSB estimates that by dropping the current BAC limit from 0.08 to 0.05, an additional 500 to 800 lives could be saved each year. While some have come out in support of the move, saying that it will help make roads across the state and the country safer, others, including our very own Brad Smith, have pointed out that any strict limit in BAC misses the point.

Applying a one-size-fits-all approach to drunk driving ignores the fact that each driver is different in how they process and cope with alcohol in their systems. While one person might be impaired at 0.05 percent, others may be just fine. In fact, there are plenty of people who would demonstrate indications of impairment at levels below 0.05 percent, but that does not mean the number should be lowered across the board.

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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.

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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.

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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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