Sometimes when an individual is charged with DWI their vehicle is seized incident to their arrest. North Carolina’s General Assembly has attempted to protect defendants’ due process rights in these type of cases by enacting a relatively unknown “Trial Priority” subsection (“TP Section”) in the Vehicle Forfeiture Statute. See N.C.G.S.A §20-28.3(m).
Vehicle forfeiture cases are relatively rare, so the provision usually goes unenforced. I only know of two cases in our county in which the defense attorney attempted to enforce this provision. The first to successfully do it, to my knowledge, was Corey Rosensteel of Rosensteel Fleishman, PLLC (http://www.rflaw.net/charlotte-nc-attorney/traffic-attorney-charlotte/) who was kind enough to collaborate with our office in making our recent motion to enforce the provision. Because of the Statute’s nuanced nature, I thought it would be helpful to provide a brief overview, as well as, a few tips for defense attorneys who attempt to enforce it. The first part of the TP Section requires that trials for cases involving vehicle forfeitures be held at the arresting officer’s next court date or within 30 days, whichever comes earlier. See N.C.G.S.A §20-28.3(m). The second part of the Statute forbids a continuance of the case unless there is a written motion, a finding of a compelling reason by the court, and that written motion and finding are attached to the court file. See N.C.G.S.A §20-28.3(m). Despite having nearly unbridled discretion in the calendaring of criminal cases, the State rarely schedules a court date within 30 days of the date of arrest; so if you have a case involving vehicle forfeiture, chances are you have a violation of the Trial Priority Statute. The TP Section doesn’t have a waiver or “use-it-or-lose-it” provision. See N.C.G.S.A §20-28.3(m). However, it can be tough to argue that a defendant should get the benefit of a timeliness-based statute two or three court dates down the road, so it is important that the motion to enforce it be raised at the first court setting. The more confounding portion of the TP Section is that it doesn’t provide for a remedy when the Statute is violated. See N.C.G.S.A §20-28.3(m). The two seemingly natural options would be return of the vehicle or dismissal of the underlying criminal charges; the State will typically argue for the former. There are several problems with the State’s proposed remedy: 1) the defendant has already been deprived of use of the vehicle without a hearing for an extended amount of time; 2) the court is not permitted, under the Vehicle Forfeiture Statute, to waive storage and towing fees, so the defendant will get their vehicle back with a huge bill attached (often times the defendant’s vehicle will be sold if the ongoing storage fees can’t be paid) See N.C.G.S.A §20-28.3(l); and 3) giving the vehicle back doesn’t discourage the State from violating the TP Statute in the future; 4) the Vehicle Forfeiture Statute already has a vehicle retrieval procedure, so the General Assembly wouldn’t have needed to enact TP Section if the intended remedy was return of the vehicle. See N.C.G.S.A 20-28.2(e). The effective defense attorney will focus on the General Assembly’s intent to protect defendants’ due process rights, and should have some persuasive case law ready from other jurisdictions interpreting statutes similar to the TP Section. For more information about vehicle forfeitures and DWIs, contact Corey V. Parton at Parton & Associates, PLLC. Written by Corey V. Parton. Researched by Megan White, Third Year Law Student Thank you to Corey Rosensteel at Rosensteel Fleishman, PLLC for his contribution to this article.
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A recent video has surfaced showing Florida drivers who, when stopped at a DWI checkpoint, hold up a sign asserting their rights and their license. The sign instructs the stopping officer that the driver: “chooses to remain silent, refuses to consent to a search, and demands their lawyer,” while also stating that the driver will comply with lawful orders and will display all required documentation through their window. The sign, espoused by a local attorney, takes advantage of a loophole in Florida checkpoint law requiring drivers to only “display” documentation, with no mention as to whether or not they have to roll down their window.
The legality, effectiveness, and general common sense of this tactic has been the subject of much debate; but it led me to think about how we arrived at this (check) point, where United States citizens have to utilize a loophole to enjoy one of civilized mans’ most comprehensive and valued rights: the right to be let alone. Olmstead v. United States, 277 U.S. 438, 478 (1928) rev’d on other grounds, 389 U.S. 347 (1967). No one would deny the horrific effects of drunk driving, nor the need for law enforcement to deter and stop intoxicated drivers. Even the Supreme Court has repeatedly lamented the tragedy of drunk driving. South Dakota v. Neville, 459 U.S. 553, 558 (1983). Despite the severity of the evil they aim to remedy, sobriety checkpoints, which are usually operated at night at an unannounced location, seem eerily analogous to the type of random searches by British soldiers on the King’s Highway that our Founding Fathers sought to protect against when they ratified the Fourth Amendment. See Michigan Dep’t of State Police v. Sitz, 496 U.S. 444, 460 (1990) (Stevens, J., dissenting). Some level of particular, individualized suspicion has always been a core component of the protection of the Fourth Amendment; so how did we get here? See Delaware v. Prouse, 440 U.S. 648, 654-55 (1979). One of the first cases to permit random, blanket vehicle stops at checkpoints was Martinez-Fuerte in 1976. United States v. Martinez-Fuerte, 428 U.S. 543, 545 (1976). In that case, the Supreme Court attempted to help address America’s immigration problem by permitting brief questioning of all vehicle-occupants at a fixed checkpoint about 66 miles inland from the border. Id. at 545, 547. The Court rationalized that the because the intrusion on drivers was minimal and brief the checkpoints could be tolerated, despite the lack of any individualized suspicion for stopping each vehicle. Id. at 566. This reasoning provided the framework and rationale for later cases allowing DWI checkpoints. See Sitz, 496 U.S. at 450. However, these immigration checkpoints differed from DWI checkpoints later allowed in Sitz in one critical and consequential way: DWI checkpoints are not permanent. See Id. at 447. A surprise, nighttime checkpoint is significantly more intrusive and burdensome than a fixed one that a driver can anticipate encountering. Certainly a person has less of an expectation of privacy when they’re crossing a national border compared to when they’re taking a ride on a secluded road in the wee hours of the morning. What frightens me most is the reliance on the rationale that the degree and worthiness of the targeted evil (in the Court’s sole, unbridled discretion), is determinative of the level of warrantless, suspicion-less intrusion they are willing to allow. This cannot be the standard. If it were, law enforcement could justify checkpoints on every public street corner in the interest of reducing the crime rate. Once we give the government the power to intrude based on a perceived evil, the only thing restraining them is their own discretion. I’m reminded of the sheik who refused to let his camel put its nose in the tent, knowing that once the large, powerful animal felt the cool air, he would want to stick his neck in, and then his first hump, and then his second. Rizzo Mario & Whitman Glen, The Camel’s Nose is in the Tent: Rules, Theories and Slippery Slopes, 51(2) UCLA L. Rev. 539-592 (2003). The camel, like our state and federal government, is much too powerful for the sheik, or the people, to restrain when they decide they want to stick their nose in. Maybe it’s time to put a sandal to the camel’s nose, and tell him to stay out of the tent until he can articulate an objective, reasonable reason for why he should be let in, like the Fourth Amendment requires. For more information and opinions on DWI’s, checkpoints, and individual rights, contact Corey V. Parton at Parton & Associates, PLLC. This article is intended for informational purposes only. Each case is different and must be analyzed on it’s own facts and merits, so nothing in this article should be construed as or relied upon as legal advice. Written by Attorney Corey V. Parton. Researched and edited by Brittny M. Kaltenbach. In North Carolina, when a defendant is suspected of Driving While Intoxicated and is being asked to submit to an intoxilyzer, or some other blood alcohol content exam, they have a statutory right to have a witness come and observe their test; with one caveat: the witness has to get there within 30 minutes. N.C.G.S.A. §20-16.2 (a)(6)(2011).
Since checkpoints see their most action at odd hours, the majority of defendants are unable to get a witness to the scene quickly, so oftentimes the “30 minute right” goes unasserted. I was recently involved in a case that tested the parameters of the 30 minute right when a client called me at 12:30 a.m. to come serve as his witness after he was stopped at a checkpoint near my home. I was a witness in the case and elected not to serve as counsel; but there were a few nuances to the 30 minute right that became important, and I thought they were worth sharing. The right to have a witness present is not the same as the right to have an attorney present. Courts have found that this is not a “critical stage of the prosecution” under the 6th Amendment; so regardless of whether the defendant calls their attorney, or their buddy down the street, the right applies the same. See Sedars v. Powell, 298 N.C. 453, 461-63 (1979); U.S. Const. amend. VI. The 30 minute timer begins as soon as the defendant makes their first phone call, regardless of whether or not somebody picks up. After 30 minutes, the officer will begin the exam regardless of whether a witness is a mile away, or right outside the door. See N.C.G.S.A. §20-16.2 (a)(6) (2011). Once the witness arrives, the police can delay them from accessing the defendant so long as the delay is “reasonable”. See State v. Hatley, 190 N.C. App. 639, 641-43 (2008). So, for example, a witness who arrives at a checkpoint without their license, or with an expired vehicle registration, can be made to wait while an officer runs their information and writes them a ticket; all the while those 30 minutes continue to tick away. Even a properly licensed and registered witness will likely have to pass through the checkpoint, which could cost the defendant critical time. The defendant’s right to a witness includes the setup of the intoxilyzer machine, as well as the administration of the test. So a timely witness should have the opportunity to watch the machine calibrated, and then make sure that the defendant’s two tests are given within five minutes of each other, and that the results of those tests are within .02 of each other (the standard for a breathalyzer test to be admitted as prima facie evidence of intoxication). See N.C.G.S.A §20-139.1 (b3) (2011). The witness may also be questioned as to the defendant’s appearance and apparent intoxication, so it is important for the witness to talk and interact with the defendant as much as possible. The witness may be needed to give critical testimony about things like the defendant’s speech, ability to stand and whether their eyes are droopy or glossy. If the court finds that the defendant was denied their 30 minute right, or that the test was improperly administered thanks to the witness’ testimony, the remedy is exclusion of the test results, leaving the State with little evidence and making it difficult for them to win a conviction. See State v. Ferguson, 90 N.C. App. 513, 519 (1988); State v. Buckheit, 735 S.E.2d 345, 347-48 (N.C. App. 2012); State v. Myers, 188 N.C. App. 452, 494-55 (1995). For more information about defense of DWI’s, contact Corey V. Parton at Parton & Associates, PLLC. This article is intended for informational purposes only. Each case is different and must be analyzed on it’s own facts and merits, so nothing in this article should be construed as or relied upon as legal advice. Written by Attorney Corey V. Parton. Researched by Megan White, Second Year Law Student. The legal industry, like any other in our capitalist system, is constantly being redefined by competition and commoditization. A quick search on the North Carolina Bar Lawyer Directory reveals that there are over 29,000 attorneys in this State and over 5,000 in Charlotte, while buffet style websites like LegalZoom attempt to cut the lawyers’ role out completely. How does the modern lawyer stay competitive in such a hostile business environment? By offering intangible services that can’t be commoditized.
Communication The majority of people don’t speak well in stressful situations. I often spend multiple hours listening to clients before I’m able to fully understand their position. Sometimes it tests my patience and ability to focus, and I’m an interested party. Now imagine a client trying to explain their situation with the pressure of speaking in front of a powerful judge in a public setting. Clients need an advocate who can adequately and effectively convey their position, and that’s not something that can be packaged and sold, or learned overnight. It does not do any good to speak persuasively if it’s not to the point and the audience loses interest. And there’s no value in a quick, unclear message. The good lawyer is able to ascertain all of the facts from a client, weed out the irrelevant ones, and articulate their position clearly, concisely and convincingly. Connections The right message isn’t worth anything if it’s lost on the wrong audience. I often have clients who, after being served with a lawsuit for the first time, will take their paperwork to the Police Station, or the District Attorney’s Office before coming to see me. Even if they have a general understanding of the justice system, clients don’t know where to go and who to talk to in order to resolve their specific issue. The valuable attorney is able to leverage carefully cultivated relationships to help their client obtain an effective solution. That relationship might be knowing a great immigration lawyer or a helpful assistant district attorney if you’re in criminal defense. Or it could be as simple as knowing a good paper supply wholesaler who can help your small business client save money. A set of connections is a valuable product that can’t be purchased, obtained quickly or duplicated. Counseling Clients rarely come to a lawyer with great news. The legal profession inherently requires the lawyer to deal with individuals in tough situations, sometimes because of their own poor decisions. In my practice, clients have either been charged with a crime or are going through the unpleasant and unprofitable process of resolving a business dispute. Either way, they’re usually not thrilled to be hiring an attorney. The good lawyer is able to ascertain the client’s goals by listening, while at the same time tempering their expectations and ensuring they’re realistic. The valuable attorney then works with his client to formulate an effective strategy geared toward obtaining an achievable result, as well as a plan for ensuring they don’t end up in the same position again. For a client charged with a DWI, this means developing a litigation game plan aimed at achieving a dismissal or not guilty, preparing the client for possible sentencing, and addressing any underlying substance abuse issues they may need to deal with. For the business client, it might mean resolving their contract dispute and making sure they have an attorney to review their agreements moving forward. Every client matter is unique, making it impossible to package and sell a one-size-fits-all equivalent to good counseling services offered by a prudent practitioner. --Corey V. Parton, Senior Partner, Parton & Associates PLLC For effective counseling, communication, and use of connections, contact Parton & Associates, PLLC. During my week long orientation to law school, there was no dress code. My future colleagues and I dressed casually while professors and current law students tried to prepare us for what was ahead by sharing law school horror stories. This was true for every day of orientation except one. On Thursday, our itineraries told us we were to dress professionally for a networking event with local attorneys. At some point during the first two days of orientation, the networking event was moved to Wednesday, instead of Thursday. For one reason or another, I missed the memo. I showed up on Wednesday in cargo shorts, flip flops, and a bright pink polo (as if being the only person not in a suit didn’t make me conspicuous enough), looking like I was ready to network with sorority girls rather than attorneys. Needless to say, there weren’t many lawyers eager to get to know me. It wasn’t that I didn’t know how to dress or act professionally, I had worked at the Pentagon and on Capitol Hill prior to coming to law school; I was not getting approached simply due to the fact that I looked unprepared and uninterested. I quickly pulled the eject handle, went home, put on my best suit, and returned to try to salvage what was left of the day; but the damage had been done. Most of the attorneys I talked to were politely brief and dismissive. It was twice as hard for me to network as it was for my colleagues, all because they took a few extra minutes to put on a suit that morning. The lesson I learned that day was clear: by working hard to give a good first impression and maintain a professional reputation, you actually save yourself from having to exert extra effort in the future. That supposition proved true throughout my 2.5 years in law school, and has paid dividends for me as a practicing attorney. I made a commitment that day to never be underdressed again, and I could not have anticipated the benefits. I dressed to make a good impression and professors’ schedules seemed to open up for me, while other students complained that they were only available during limited office hours. I rarely experienced the “cold call” in class; instead, I was allowed to volunteer for discussions. This meant that I typically contributed to the topics that I felt most comfortable discussing, rather than having my input solicited on days I may have been less than fully prepared – thanks to the Socratic Method of teaching. The result was when I spoke up, I sounded like I knew what I was talking about; since I sounded like I knew what I was talking about, my classmates assumed I was smart; since my classmates, now colleagues, perceived me as smart, they assume I am a good attorney and they don’t hesitate to send me referrals…see the pattern? Some of my former professors are now District Court Judges. Because of the reputation I established in law school, I feel a lot more comfortable in their courtroom than do many of my contemporaries. If the prospect of lightening your professional workload isn’t enough to encourage you to expend effort now on your external appearance, consider the alternative: A colleague of mine who started at the Public Defender’s office around the same time that I began practicing came to District Court one morning unsure of his client’s statutory sentencing level, which is based on prior convictions. He had simply missed one detail in his preparation - it happens. When the Assistant District Attorney inquired as to the client’s sentencing level, the new Public Defender took a risk and guessed that the client had no priors. As it turned out, he did. Do I think the Public Defender was intentionally trying to deceive the A.D.A.? Absolutely not. He made a split-second decision to avoid looking unprepared and inexperienced. It didn’t matter. As soon as the A.D.A. discovered the discrepancy he made a scene, yelling “that’s it, you’re done!” in front of a seated judge and courtroom full of attorneys. The A.D.A.’s assessment may have been a little exaggerated (that Public Defender is still practicing and is a good, competent attorney) but his credibility was fatally damaged. Now whenever he negotiates with the State, he has to bring proof of almost every fact he contends. Your client completed XYZ class? Where’s the certificate? Your client wants credit for time served? Where’s the printout from the Sheriff’s Inmate Intake website? I can’t imagine how much extra time he’s had to spend preparing and how many extra trips back and forth to the office he’s had to make. One professional misstep and his workload was un-quantifiably increased. Judgments made on looks and first impressions are certainly superficial, but they are a reality in our profession - like it or not. Of course, maintaining a positive professional reputation isn’t all about appearances. No lawyer should be all suit no brief case. Putting in the hard work necessary to understand the complex fields of law we work in is equally as important as looking the part. But it’s a lot easier to convince someone you’re prepared when you look it first. -- Corey V. Parton, Senior Partner, Parton & Associates PLLC The benefits of obtaining a lawyer for a traffic violation substantially outweigh the risks of not having one. Even a simple speeding ticket can carry serious consequences, not to mention, dealing with a traffic or speeding ticket can be an inconvenient and expensive hassle. It could cause you to miss school, work, or other obligations when an experienced attorney can handle the ticket without you having to even appear in court. Parton Buckingham, PLLC saves their clients money by working with the District Attorney to have the charges against them reduced or dismissed. A knowledgeable and experienced attorney will know the North Carolina traffic and insurance laws and best be able to assist you with your ticket. The lawyers at Parton Buckingham, PLLC will negotiate with the State of North Carolina in an honest effort to obtain the best possible resolution for your speeding or traffic ticket. It is in your best interest to obtain a proficient criminal lawyer to help you through the legal process. In North Carolina, simply just paying the fine is equivalent to pleading guilty. Or, if you are found guilty of a traffic infraction or misdemeanor, you will likely receive driver’s license points, insurance points, and/or insurance rate increases. Driver’s license points could lead to the suspension of your license and insurance points could lead to an increase in your insurance payments. Common driver’s license point penalties are: Conviction Point Values Aggressive driving 5 Passing a stopped school bus with children 5 Reckless driving 4 Tailgating 4 Illegal Passing 4 Running through a stop sign 3 Speeding more than 55 mph 3 Expired or no drivers license 3 Speeding through safety zone 3 Littering involving a motor vehicle 1 Commercial Driver’s License (CDL) If you have a CDL and receive a traffic violation then the points assigned to that conviction will likely increase. Insurance Points: In North Carolina, insurance companies follow the Safe Driver Incentive Plan (SDIP). Drivers who are convicted of moving traffic violations and/or who cause accidents will be charged higher premiums in accordance with their driving records. SDIP points are charged as follows for convictions and at-fault accidents during a three-year period: Points Percentage Increase 1 30% 2 45% 3 60% 4 80% 5 110% 6 135% 7 165% 8 195% 9 225% 10 260% 11 300% 12 340% Insurance Points Offenses: Here are some of the offenses North Carolina has listed as causes for an insured to receive insurance points. 12 Points
2 Points
-- Chad Buckingham, Senior Partner Photo courtesy of FreeDigitalPhotos.net; Gravr Razvan Ionut |
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December 2022
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