Charlotte Criminal Lawyer Blog

So You Blew on the Intoxilyzer? What does registering a .08 or above on the “Breathalyzer” mean for your legal defense. – Part 1

Published on: September 2, 2011 | On behalf of Arnold & Smith, PLLC

alcohol limit.bmp If you see blue lights come on behind your vehicle and it’s after midnight on about any day of the week, chances are the Officer stopping your vehicle is going to ask you if you have consumed any alcohol that evening. If he smells even the faintest odor of alcohol a Driving While Impaired investigation is almost certainly to follow. Hopefully after performing some routine field sobriety tests you will be allowed to get back in your vehicle and drive away, however, you may find yourself being placed in handcuffs and arrested.

The strongest piece of evidence for the state in the majority of Driving While Impaired cases is a sample of a person’s breath. Most individuals who are charged with Driving While Impaired submit to a sample of their breath on the intoxilzer because they think they think they will get bonus points in court by being “cooperative” and because when they are read their rights with respect to taking the test, they are informed that if they refuse to take the test their driver’s license will be revoked for one year. So if you blow a .08 or above on the breathalyzer, do you need to begin preparing for life after a DWI conviction or is there still hope?

The bottom line is the state’s case is certainly stronger with a reading than without one. However, a person who registers a .08 or above on the intoxilyzer is not automatically guilty of Driving While Impaired. In a recent decision the North Carolina Court of Appeals in State v. Narron held that a reading of .08 or above does not constitute a mandatory presumption of guilt for a person charged with Driving While Impaired. Rather, the reading on the Breathalyzer is simply reliable evidence to satisfy the State’s burden of proof as to this element of the offense of DWI.

Well you’re probably thinking if its reliable evidence isn’t that just as good as a presumption of guilt? The answer is of course “no”. Being a good criminal defense attorney means defending with ingenuity. If the Intoxilyzer is nothing more than “reliable” evidence, it can certainly be shown to be unreliable. The Intoxilyzer is not a magic box that always produces an accurate reading regarding a person’s breath alcohol content. If a prosecutor is allowed to submit a reading, without any rebuttal or any suggestion to the jury regarding the problems with breath testing or the problems with the Intoxilyzer, the fact finder will accept the reading as sufficient or “reliable” information as to a person’s alcohol concentration.

Catawba County “Knock and Talk” Leads to Discovery Marijuana, Moonshine, Money and Guns

Published on: August 29, 2011 | On behalf of Arnold & Smith, PLLC

In a Catawba County home, deputies found a liquor still, 100 jars of “white lightning” moonshine, 40 firearms, 195 grams of marijuana, prescription drugs, and more than $13,000 in cash. The resident, Mr. Timothy Scott Fox, has been charged with possession with intent to sell and deliver marijuana, maintaining a dwelling for a controlled substance, possession and sale of non-tax paid alcohol, possession and sale of alcohol without a permit, and manufacturing liquor without a permit. Mr. Fox is now out on $15,000 bond.

Interestingly, this bust and subsequent arrest arose out of what is called a “knock and talk.” When police suspect that criminal activity is present at a location, but they do not have enough evidence to obtain a search warrant, many times they will knock on the door of a location to interact with the persons at the residence and hopefully obtain enough evidence to meet the probable cause requirement for a search warrant.

In this case, police stated that they knocked on Fox’s door, and as they talked with him, they became suspicious of what was inside the home. No facts are given as to what their basis for the search warrant actually was in this case, however, many different things can serve as the basis of a warrant. For example, the smell of marijuana can give rise to probable cause. Another possible scenario is if police look into the interior of a home and they see ingredients that either are contraband, or are typically associated with contraband. Actually seeing the liquor still in this case would obviously be enough for probable cause.

‘West Memphis Three’ Set Free But Not Exonerated

Published on: August 22, 2011 | On behalf of Arnold & Smith, PLLC

West Memphis.jpg On August 19, 2011, Damien Echols, Jessie Misskeley, Jr. and Jason Baldwin changed their original 1993 not guilty pleas and a judge found that based on these new pleas, they have served their time, and they will be released but have a ten-year suspended sentence hanging over them once they are released. This legal maneuver, called an Alford Plea, allows these men to maintain their assertion that they are innocent but acknowledges that the state does have some evidence against them that could be the basis of a conviction.

In 1993, three 8-year old boys were murdered in West Memphis, Arkansas, a small town just across the Mississippi River from Memphis, Tennessee. Echols, Misskeley and Baldwin were charged and tried for the boys’ murder, but Prosecutors never could give anyone a reason why these then 13-year olds would commit such a horrendous crime. Their only idea was that these boys committed the murders as part of a Satanic ritual. The boys have always maintained their innocence, yet in 1993, Echols was sentenced to death, and Baldwin and Misskeley were sentenced to life.

The case of the West Memphis Three has been in the headlines for years. An HBO three part documentary, “Paradise Lost”, has been in the works almost since the boys were convicted with Part I being released in 1996 and Part II released in 2000. After Friday’s hearing, the ending of the third part will have to be revised before its release which was scheduled to be in January. Celebrities have also joined the cause with Metallica allowing the use of its songs in the documentary, and singer Pattis Smith, actor Johnny Depp and Pearl Jam’s Eddie Vetter all appearing at a benefit for the West Memphis Three in Little Rock, Arkansas last summer.

While the West Memphis Three are going home, they will still have the burden of a murder conviction and ten year suspended sentence hanging over them. Even though new DNA tests failed to show that the boys were even at the crime scene, the Judge would not overturn the conviction. Had the three not entered these Alford pleas, they likely would have stayed in prison pending a new trial. Once the judge refused to overturn the conviction, this was their best option to be sure to be released from prison.

These young men spent 18 years in prison for a crime they claim they did not commit, and there is no conclusive evidence to the contrary. One would hope that such a horror would be rare in this country where the state is held to a burden of showing guilt beyond a reasonable doubt. Yet too often there is a rush to judgment and an attitude that if a person is on trial, they must be guilty. The prime examples of this are the hundreds of exonerations that have resulted from DNA testing. In North Carolina alone, seven people have been exonerated after their wrongful conviction thanks to DNA testing.

Is Police Misconduct Becoming an Epidemic in the United States?

Published on: August 15, 2011 | On behalf of Arnold & Smith, PLLC

Police car.jpg On August 5, 2011, five current and former New Orleans police officers were convicted by a federal jury of various charges related to the shooting deaths of two unarmed men on the Danziger Bridge amidst the chaos surrounding Hurricane Katrina. The five men had been charged with twenty-five counts including the following: civil rights violations, deprivation of civil rights, obstruction of justice, and false prosecution. Four officers were found guilty of the shootings, while the fifth was found guilty of orchestrating the cover-up. The only counts the jury did not convict the officers of were the murder charges.

Nearly six years ago, Hurricane Katrina struck and decimated New Orleans. In the aftermath, chaos, lawlessness and looting abounded. While much of the city was still underwater, a radio call supposedly sounded reporting that police had been fired upon and that the shooters were headed toward the Danziger Bridge. This call was later shown to be false. A dozen officer responded to the call, and opened fire on the civilians.

As a result of the incident, seventeen year old James Brisette was shot in the back of the head, forty year old Ronald Madison was shot in the back. Also, a group of four unarmed survivors lay on the concrete bridge, crying and praying while officers fired their rifles at them at close range. In an attempt to cover up their misdeeds, the officers also attempted to frame two other innocent men who happened to be on the bridge that day by falsifying evidence, fabricating witnesses and planting a handgun.

These officers will be sentenced on these charges in the months to come, but they all face the possibility of life sentences for their convictions of a violation of civil rights which led to death.

While most people might chalk these officers’ behavior up to the post-Katrina chaos or the long standing corruption of the New Orleans police, unfortunately police misconduct is not that rare. A 2010 statistical report shows that there were almost 5,000 unique reports of police misconduct involving over 6,000 law enforcement officers and almost 7,000 victims. Additionally, this country spent $346,512,800 on misconduct-related civil judgments, settlements, court costs, and attorney fees, and this number does not include those settlements that were sealed.

Elisa Baker Wins Motion to Change Venue

Published on: August 9, 2011 | On behalf of Arnold & Smith, PLLC

criminal books.jpg On August 1, 2011, a Catawba county judge granted Elisa Baker’s Motion to Change Venue. Ms. Baker’s motion to change the venue of the trial was based on the extensive media coverage this case has attracted. Her attorney, Scott Reilly, felt that Ms. Baker could not receive a fair trial in Catawba County because of the coverage. District Attorney Jay Gaither did not oppose Ms. Baker’s motion. Although he felt that Ms. Baker would have been able to receive a fair trial in Catawba County, he “trust[s] the jury system… wherever we go.”

In a recent television interview with Charlotte News Channel 14, Charlotte criminal attorney J. Bradley Smith was asked to comment on this case where he said that he agreed with Attorney Scott Reilly’s recommendation to change the venue. Smith goes on to say, “what the next step will be is what county has a similar demographic makeup, population, etc. to Catawba County and what county the case will be moved to.” Smith thought that Rutherford County, NC might be in contention.

Ms. Baker has been held in the Catawba County Jail since she was arrested in October for writing a phony ransom note in order to make it seem that her step-daughter Zahra Baker had been kidnapped. She has since been charged with second degree murder. Ms. Baker told family members that Zahra died after an illness and that she and her husband panicked and disposed of the body instead of notifying officials. Family members have told authorities that Zahra’s father was afraid to take Zahra to the hospital because he was in this country illegally and social workers had previously investigated complaints against Ms. Baker.

Traditionally, the proper venue for a trial is the county where the crime or portion of a crime took place. However, under North Carolina law, a Defendant may make the motion to change venue. The court must then rule whether “there exists in the county in which the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial.” Here, the court has found that there is little likelihood that Ms. Baker can receive a fair trial if it is held in Catawba County. The question is where the trial should be held.

Woman Files Lawsuit Against Stallings Police Department

Published on: August 4, 2011 | On behalf of Arnold & Smith, PLLC

On July 21, 2011, Dawn Whitlock filed suit against the Stallings police department and two of its officers for violating her civil rights when she was arrested almost three years ago for disorderly conduct and resisting an officer. In her complaint she alleges that Officers Tahitiana Munoz and Jeffrey Weatherman used excessive, unreasonable and unjustified force that resulted in physical injuries which required surgery.

On July 27, 2008, Officers Munoz and Weatherman responded to a 911 call from Robert Whitmore’s home. Mr. Whitmore told officers that James Polk, Whitlock’s boyfriend, had threatened to shoot him. Ms. Whitlock approached the officers and Mr. Whitmore as he was telling officers his story. Officer Munoz told Ms. Whitlock to get Mr. Polk. As Ms. Whitlock was returning to the house to do as the officer requested, Mr. Whitmore’s wife started an argument with Ms. Whitlock. Officer Weatherman began to yell at Ms. Whitlock, telling her to hurry up and threatening to arrest her. Ms. Whitlock then told Officer Weatherman to “go to hell,” at which point the Officers tackled Ms. Whitlock in her own yard.

Ms. Whitlock told the two officers she had recently had back surgery, and that Officer Weatherman was hurting her by lying on her back. As a result of the arrest, Ms. Whitlock’s back stimulation implant was “catastrophically damaged” which required her to undergo extensive surgery to remove the device and implant a new one.

Ms. Whitlock was tried in district court on the charges of disorderly conduct and resisting a public officer. At the trial, Ms. Whitlock was acquitted of the disorderly conduct charge but convicted of resisting a public officer.

Mecklenburg County Police Department to Cease Use of Tasers for Up to 45 Days

Published on: July 29, 2011 | On behalf of Arnold & Smith, PLLC

On July 21, 2011, Lareko Williams was tased by police after they say he was found beating and choking a woman at a Lynx light rail station in Charlotte. An hour later, Mr. Williams was pronounced dead. This death comes one day after a Charlotte federal jury awarded the family of Darryl Wayne Turner $10 million for his death after being tased by the CMPD. CMPD has now suspended their use of tasers for up to 45 days in order to make sure its tasers are working properly and to independently test the taser that caused Mr. Williams’ death.

Tasers are viewed as beneficial to those in law enforcement as a “non-lethal” option to subdue suspects. Many argue that tasers are much safer for suspects than other methods to subdue suspects such as a baton or other physical force. They also argue that tasers provide an alternative to lethal force when an officer has no backup. However, their use has become increasingly controversial in light of these serious injuries and deaths.

Tasers work in two different ways. One is called a “drive stun” where the taser is held directly to the subject without firing projectiles. The intent here is to cause pain, and thus this method is referred to as a pain compliance technique. Basically it is designed to cause pain in order to bring the subject into compliance, but on some subjects, such as those who are on certain drugs, the pain compliance technique does not work and other methods are needed to subdue an individual.

The other method of use is tasing an individual through shooting two electrode projectiles from the gun which are pointed, to ensure the projectiles can penetrate clothing and skin, and barbed, to ensure the electrodes cannot be removed. This method of use is not a pain compliance technique. Instead, the electrodes inject up to 50,000 volts into the body. All of this electricity interrupts the electric impulses that control the body and basically incapacitate a person. This use of the taser is effective even on those people on drugs that prevent them from feeling pain.

‘Moorish Nation’ Defense Clogging Up Mecklenburg County Courts

Published on: July 26, 2011 | On behalf of Arnold & Smith, PLLC

Meck County Courthouse.bmp Mecklenburg County defendants’ use of the “Moorish Nation” defense is interfering with District Attorney Andrew Murray’s new policy of taking more cases to trial. By invoking this “defense,” defendants force assistant district attorneys to deal with frivolous motions that delay the case. However, the real losers with this defense are those who try to use it, who, according to Charlotte criminal defense attorney Brad Smith, is one in which people are duped into believing it will work. Even the Moorish Nation’s national chapter has denounced the defense stating that their organization “is for peace and not destruction” and its members are “part and parcel of this government.”

The details of this strategy vary throughout the nation, but the underlying theory is that a defendant is of Moorish decent, and is not subject to the laws of the United States. According to the Mecklenburg County version, the defendant takes on a new name, and declares that he cannot be prosecuted for any crimes which occurred under his prior name. Another version which defendant Frederick R. James attempted in federal court submitted a “security agreement” for the use of his name which declared that anyone who used his name would have to pay him the sum of $500,000. He refused to submit to the Court’s authority without the judge, the prosecutor, and all court personnel submitting to this agreement. And at the end of trial, he submitted a bill to the judge for $151 million for the use of his name throughout the court proceedings.
While the fact that these defendants are attempting to circumvent the justice system by invoking a centuries old treaty may seem laughable, there are serious consequences to this theory. People have paid good money for this so called “advice” and have subsequently refused representation and proceeded on their own behalf believing that this defense will save them. Unfortunately, as many defendants have found out after-the-fact, this defense is nothing more than a scam and there are no reported cases of this theory succeeding at any level of the justice system.

Man Decides to Represent Himself on Murder Charges

Published on: July 19, 2011 | On behalf of Arnold & Smith, PLLC

In May, Robert Allan Lehmann was charged with murdering his ex-wife Emily Ford and her father, Russell Ford, after Lehmann lost a custody battle earlier that day. Orange County, CA Prosecutors allege Lehmann sent his current wife and his daughter out for ice cream and waited for Emily and her father to come to take custody of their 7-year old daughter. Prosecutors claim once Emily and her father arrived, Lehmann opened the door and then opened fire on Emily and her father as they tried to run away. Prosecutors further allege that after Emily and her father fell, Lehmann reloaded and then executed them both by shooting each in the back of the head.

On July 8, Lehmann told the Orange County Superior Court’s permission that he was refusing counsel, and therefore he will proceed in his defense representing himself.

According to the landmark case Gideon v. Wainwright, the Supreme Court ruled that every criminal defendant charged with a felony has the right to the assistance of counsel. This ruling was later expanded to guarantee the right to counsel at or after the time that judicial proceedings have been initiated.

Just as now a person has the right to counsel, a person likewise has the right to proceed pro se, or without the assistance of counsel, as Mr. Lehmann has chosen to do. However, as the old proverb says, “A man who is his own lawyer has a fool for a client.” If you or someone you know has been accused of a crime, assert your constitutional right for an attorney.

Charlotte Accused Rapist is back on the Street – Not a Magistrate Mistake?

Published on: June 8, 2011 | On behalf of Arnold & Smith, PLLC

In May 2011, Martin Diamond, 23, was released on a promise to appear in court for rape and kidnapping charges against his estranged girlfriend. The bond was originally set as a secured bond of $105,500, but was soon changed to an unsecured bond which meant Diamond could sign himself out of jail.

A “secured bond” means that the suspect has to provide some security such as a personal property which equates to the bond amount. The suspect could also hire a bail bondsman who would charge a percentage of that bond amount to the suspect and provide an insurance in order to allow the suspect to be realeased. On the other hand, an “unsecured bond” means that a suspect does not have to provide any financial or real property collateral.

Magistrate Sylvia Cherry was overseeing this process. As a result of this incident, the Magistrate overseeing the bond for Diamond was placed on suspension to allow for further investigation into this and related incidents. Judge Lisa Bell manages the Mecklenburg county magistrates and released a statement defending Cherry’s actions.

According to an article featured on the WSOC TV Channel 9 website, “Bell said a number of factors could have played a role in Cherry’s decision, including the fact that Diamond had no prior arrests or convictions, did not appear to be a flight risk, had a confirmed residence and was a student.” On the other hand, CMPD issued a statement calling the bond a “mistake”, according to local news affiliate WCNC Newschannel 36.

Understandably, the victim’s mother is outraged with this decision and is concerned that authorities will have a difficult time finding Diamond when he court date comes up.
The actions of the magistrate can often have significant impact a case regardless of the facts surrounding the matter. There are a number of motions that are filed which relate to magistrate misconduct and can have a bearing on the judge’s decisions in cases. This is yet another example of how critical the magistrate role is in the court system and it should not be taken lightly.