Posted On: July 22, 2010 By: admin
Clients are frequently curious about a phrase that is ubiquitous on television, but rather ambiguous in the layman’s mind: “Probable Cause”.
In a DWI context the officer who arrests a driver for driving while impaired usually must demonstrate that he had Probable Cause to arrest the person that he suspects.
Although Probable Cause has been defined in slightly different ways by different courts, in 1988 the North Carolina Court of Appeals defined it as:
“A reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing the accused to be guilty.” For the purposes of this discussion (and in most NC DWI cases) this is the relevant definition.
What this means in practice in a Charlotte DWI is that the officer cannot arrest a person just because he has a hunch or an intuition, he must be able to demonstrate that there were objective factors that led him to the conclusion that the person was guilty.
There are several different ways that these factors are typically established. The first is the driving of the defendant- the officer will testify about weaving or traffic violations, or sometimes about an accident.
The second is the officer’s observations of the person after he makes contact, for instance their ability to speak clearly, the odor of alcohol or marijuana, the person’s ability to stand and walk and communicate normally.
The third is any statements the person makes including the person’s admission to drinking or an admission that she was coming from a bar or party. Also relevant is whether the person is excited or overly emotional in making these statements.
The officer may administer a portable breath test to determine whether there is alcohol in the person’s system (in North Carolina the specific reading is not admissible- only whether any alcohol existed).
The final factor and sometimes the most valuable for the prosecution, is the overall performance of the individual on the standardized field sobriety tests or SFST’s. If conducted properly these tests can give an officer ammunition in court to establish problems with brain function, balance and ability to perform tasks. Often a judge weighs these factors heavily in making a decision.
These are the most common factors considered by the court in making a determination of Probable Cause. In some cases a Judge will determine that the factors as a whole were not “sufficiently strong in themselves to warrant a cautious man in believing the accused to be guilty” and the remedy for that is typically a suppression of the results of the arrest which leads to a dismissal of the case.
If you have been cited with a Charlotte DWI you please call the offices of Rosensteel Fleishman to speak with an experienced attorney about your case.
Posted On: July 22, 2010 By: admin
Increasingly law enforcement agencies in Charlotte have been utilizing checking stations also known as “checkpoints” or “road blocks”. These checking stations are controversial but do yield a large number of arrests in Mecklenburg County.
The reason that they are controversial is that they stop drivers who have committed no crime or traffic infraction and who have done nothing else to raise suspicion about them. Many people believe that this is contrary to the Fourth Amendment’s prohibition against unreasonable search and seizure. Ultimately the United States Supreme Court and the Supreme Court of North Carolina have found these checkpoints to be Constitutional, but their rulings, and North Carolina Statutes place limitations on law enforcement’s ability to conduct these warrantless stops.
Checkpoints must be conducted pursuant to a written plan. The plan and the reason for the checkpoint must meet strict standards to be deemed Constitutional. Some of the requirements relate to the way that the checkpoint is physically set up and which cars are stopped and how the cars are stopped. Some of the requirements deal with the purpose of the checkpoint and the checkpoints actual relation to preventing crime. One of the things a good attorney does in handling a checkpoint DWI is to review this checkpoint plan in relation to the court cases that have established the Constitutional standards.
If you have been stopped at a Charlotte DWI checkpoint call an attorney at Rosensteel Fleishman to discuss your case.
Posted On: June 29, 2010 By: admin
After an arrest for a DWI an individual is typically taken to jail and placed in front of a machine that measures the amount of alcohol in a breath sample. In all North Carolina DWI cases the officer administering the breath test (the chemical analyst) must inform the defendant of his rights with regard to that test. These rights include the right to refuse to take the test. This is commonly referred to as a “refusal to blow” or just as a “refusal”. There are a number of consequences to a refusal, some positive, some negative.
The first consequence is that a judge or jury hearing the case can use the refusal as evidence against the defendant. In other words, why would a sober person refuse to blow? On the other hand, a refusal can deprive the state of the evidence it needs to convict a person who is currently under investigation. In other words, if the other evidence is not strong the judge or jury could find that without an alcohol reading there’s just not enough evidence to prove impairment beyond a reasonable doubt.
The other main consequence is that if a person refuses to blow then the person’s North Carolina Driver’s license will be revoked for a year. The person would not be eligible for a limited privilege for six months.
There are ways to avoid this suspension and as with all matters that involve a DWI, anyone charged should immediately speak with an attorney at www.rflaw.net to determine the best course of action.
Posted On: June 16, 2010 By: admin
Recently we have been seeing less willingness by District Attorneys to negotiate with clients who have extremely high speeds (typically classified as 90mph and above). Even for a driver with an otherwise clean record, a speed that high will suspend a driver’s license. However, much like the limited privilege available to people who have been convicted of Driving While Impaired (DWI), there is a limited privilege available for people convicted of high speeds that suspend a driver’s license. The privilege must be approved by a Judge and filed with the DMV. This privilege allows people who would otherwise suffer severe employment problems or have to drive illegally to have a legal way to still be able to drive. The speeding ticket lawyers of Rosensteel Fleishman, PLLC can give you more information if you are charged with an especially high speed speeding ticket.
Posted On: June 2, 2010 By: admin
The house is debating a bill (H.813) which would end strict contriutory negligence in North Carolina. If the bill passes, the amount of damages the plaintiff is entitled to would be reduced by their own negligence. This has long been fought by the insurance lobby as the number of cases wherein the Plaintiff is only fractionally at fault is quite large. The majority of states use comparative fault as their basis for tort law. As of today however, the law is still the same and as such it is extremely important not to speak with the insurance companies until speaking with a qualified Charlotte personal injury lawyer
Category: Charlotte Personal Injury Attorney
Posted On: March 11, 2010 By: admin
Under North Carolina law, if the defense can prove that the Plaintiff in a car accident case is even just 1% negligent (and that negligence was a proximate cause in the accident), they are unable to recover money damages. While the law of contributory negligence is very strict, there are ways around it. Over the years there have been thousands of cases dealing with different facets of contributory negligence. This is why it is important to discuss your case with a skilled Charlotte personal injury lawyer at Rosensteel Fleishman, PLLC. Our lawyers know what facts to look out for to help your case. Further, our lawyers have access to the latest technology to examine up to the minute changes in the law.
Category: Charlotte Personal Injury Attorney