VEHICLE SEIZURE AND FORFEITURE IN DWI CASES

FUN FACT: Did you know that the police can seize, impound and sell your car if you are arrested for DWI/DUI and you either (1) have a driver’s license which is revoked due to a prior impaired driving revocation or (2) have no valid driver’s license and no automobile liability insurance.
The police present a magistrate with an affidavit of impoundment to initiate the seizure. Then the magistrate issues an order of seizure. The car is towed to a private impound lot where the daily storage fees begin accumulating.
The vehicle can be released to:
1) An “innocent owner.” This is a person who owns the car but was not the DWI driver and didn’t know the driver’s license status. An innocent owner can obtain a permanent release,
2) The defendant/owner can obtain a permanent release if he/she can demonstrate that his/her license was not revoked due to a previous impaired driving revocation or the license is valid and/or there is liability insurance,
3) A rental car agency can obtain a permanent release if the car was a rental,
4) A lienholder can obtain a permanent release if driver/borrower has defaulted on the loan and
5) A co-owner of the car can obtain a temporary release if that person posts a security bond in an amount equal to the fair market value of the car as long as the car is returned on the day of the forfeiture hearing.
Trials involving cars subject to forfeiture are to be tried on the officer’s next court date or 30 days whichever comes first unless the court grants a continuance for “compelling reasons.” Since trials rarely occur so quickly, if the defense wants to try to enforce this right, they must argue for an immediate trial date, object to any continuance and argue that the remedy is to release the car.
NCGS 20-28.3

ONLY A LITTLE BIT ILLEGAL

When Justice Thomas is the author of a criminal opinion, you can be sure that it will not benefit the defendant and he does not disappoint in Utah v. Strieff. The reason this opinion is so bad is that it rewards the police for violating an individual’s constitutional rights. Here, even though the police officer had no right to stop Mr. Strieff and would not have known that an outstanding arrest warrant existed had he not made the illegal stop, methamphetamine recovered was admitted as evidence.
To understand why this is such a bad opinion, you need to understand the Exclusionary Rule. The Exclusionary Rule states that if the search or seizure is illegal then anything found can’t be used in trial except when:
1) The police would have found it anyway (Inevitable discovery)
2) There was an independent source which was completely separate from the illegal search or seizure, or
3) The connection between the misconduct and the evidence was weakened by time or intervening circumstances.
Here, Justice Thomas selected door #3, the Attenuation Doctrine. But the illegal stop was only minutes before a warrant check and subsequent search– so this doesn’t really make sense. So anytime a valid warrant exists, Strieff will be cited for the proposition that the illegal stop was only a little bit bad and after all, there was a preexisting valid warrant and the guy had drugs on him anyway. So I guess that makes it okay.

What or who can be searched when your car/the car you are in smells of marijuana?

Assume that there is a valid reason for the car you are in to be pulled over: speeding, registration etc. The car has the lingering odor of marijuana. What/who can be searched?
In State v. Pigford (Aug. 2, 2106) NC Ct. of Appeals (COA 15-1047), the court ruled that the odor of marijuana emanating from inside a vehicle does not provide an officer with probable cause to conduct an immediate warrantless search of the driver.
What does this mean?
If the car just smells of marijuana but no particular person reeks of marijuana, the car can be searched as can items which could contain marijuana but occupants of the car cannot be searched.
BUT, if an occupant of the car has a very strong odor of marijuana on his body, that person could be searched but no one else.
AND if during the search, contraband (illegal items: drugs, guns…) is found and supports the arrest of an occupant of the car, that person can be searched (as part of the arrest for possession of that contraband) but no one else can be searched.
WHAT??? I can’t keep all this straight?
Search and seizure law is tricky. Let your lawyer argue that there is no probable cause BUT don’t undermine your case by giving consent to search. If you consent, it doesn’t matter that the evidence would have otherwise been suppressed or excluded. Just know that there are many permutations of the law and it is very fact specific. So even if the car you are in smells of marijuana, it doesn’t give the police the right to search your person. The Constitution provides more protection for searches of people than of property.

FIELD SOBRIETY TESTS: PASSING WILL STILL LEAD TO ARREST

In order to be convicted of a DWI/DUI, the prosecutor must prove that either you drove a vehicle while impaired or, regardless of impairment, that you drove a vehicle with a blood alcohol concentration of .08% or higher. There is no requirement of impairment for the second prong. FSTs are evidence of impairment so if the officer has a legal reason to stop your car, the officer’s observation of the smell of alcohol, the physical signs of alcohol consumption and an admission of alcohol consumption constitutes sufficient evidence for arrest regardless of the FST.
In Tennessee v. Silva (3/16/16, Tenn. Ct of Appeal), the court ruled that if the officer smelled alcohol emanating from the car, if defendant had bloodshot and watery eyes and admitted to consuming alcohol, he could be arrested for DWI regardless of the fact that he passed the FST. The rationale was that if there was probable cause for the stop, then the defendant need not display “every known symptom of intoxication in order to support a determination of probable cause.”
Don’t submit to the FST; it is a no win situation. If you pass or fail, you will be arrested if there are observable indicia of alcohol consumption.
Do not assist the officer in the collection of evidence to aid in your own conviction.

A MILLENNIAL’S GUIDE: YOU AND YOUR PENDING FELONY

This week in court, a 19 year old facing a felony drug case characterized the criminal allegations and the corresponding suspension from his university as a “bump in the road.” His life had been on hold for six months while the criminal case was pending. He had been kicked out of college and was back living with his family. The tuition and dorm fees secured by parental personal loans had been forfeited. A 28 day residential drug treatment, paid for by his parents and their health insurance had been completed last year but the defendant had continued to smoke marijuana. As the defendant spoke, it was apparent that he alone failed to appreciate the severity of his situation.

To all Millennials: if you find yourself facing a felony charge, here are some tips:

1. This is serious. A felony conviction will bar you from desired education, employment, immigration, licensing and additional significant opportunities. You have gone through life with your parents, teachers etc. minimizing characterizations of harsh situations. All sugar coating aside, it is time to dig deep and comprehend that there are consequences to actions.
2. Once you can appreciate that this is some serious shit, begin to work with your lawyer to formulate a strategy for your defense. The goal is to protect your future even if it means sacrifice in the present. A reduction in charges or a dismissal is worth suffering through jail, community service, rehab or counseling. Be grateful if you get this chance.
3. If you are asked questions by the judge or an attorney, THINK before you answer. A glib or thoughtless comment will reflect really badly and possibly make the judge or the prosecutor withdraw the break that was about to be bestowed upon you. This is referred to this as “snatching defeat from the jaws of victory.” Don’t let it happen to you.
4. If you are put on probation, given a deferred judgment or conditional discharge, don’t blow it. If you violate the terms of probation, you will go to prison. State prison. Not television prison, not “Orange is the New Black” prison but scary real life prison where you are locked in with dangerous adult criminals. If you are given a conditional discharge or deferral, you have an OPPORTUNITY to earn a dismissal. Fulfill your obligations and don’t pick up any new charges and get that dismissal. Once dismissed, the case can be expunged and you can begin anew with an unmarred future and a lot more wisdom.

16-17 year olds catch a break in Orange County: Misdemeanor Diversion Program

North Carolina is one of only two* states who treat 16-17 year olds as adults for criminal law purposes but effective April 15, 2016, a misdemeanor diversion program will ameliorate this inequity. Instead of being arrested or receiving a citation for alleged misdemeanor violations, a “youth citation” will be issued and participation in an in a diversion plan tailored to the needs of the specific teen is required. Successful completion of community service and any recommended counseling or substance abuse rehabilitation will result in the absence of filing of criminal charges. No tangible or computer record of the offense will exist and no mug shot will be taken which could hamper one’s future educational, employment or personal opportunities.
The diversion program is administered by the Criminal Justice Resource Manager and should take approximately 90 days to complete. Only teens with no prior criminal record and with allegations that are not sex-based will qualify for participation.
While we should continue to fight to amend the statute and increase the age for criminal responsibility from 16 to 18 years, Orange County teens can now join Durham County teens in catching a break.

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* New York is the other state.

DEATH BY TEXT

You are driving when your phone buzzes with an alert. You take your eyes off the road, ascertain the location of the phone, grab it and look at it to determine the source of the vibration. Is it a text, an email, what? If you are security minded, in order to read the message, you swipe your finger over the fingerprint reader or enter a password or a pass code or trace a shape with your finger. Once you have gained access to the phone, you look at the device again to read the contents of the message. Now, not only are you not looking at the road but you have removed at least one hand from the wheel, but maybe both hands. Did you have to hold the phone in one hand and use your other hand to enter the access code? Did you have to steady the steering wheel with your knee? Also, you are no longer thinking of the road conditions and traffic because you are paying attention to gaining access to the message, reading the message and possibly, although it is against the law, typing back a response. Well the sender is waiting for a response aren’t they? While all this is happening, you are moving through space at what speed? Are you on the interstate going 70 mph, or on a country road doing 50, or in city traffic, creeping along? Have you had close calls before where your car drifted over the center line while you, just for a second, glanced at the phone? Or maybe your car veered towards the shoulder. Or maybe you slammed on your brake and just avoided hitting the bumper of the car in front of you. Lucky. Whew. Lucky until you aren’t. What happens when you hit a person or another car?
As an admitted distracted driver and a geeky criminal defense lawyer, I wondered what criminal responsibility would lie with someone who kills another person as a result of texting. Death could result from plowing into a pedestrian, a cyclist or a moped/scooter driver. There could be collision between your car and another car. Hey, that car came out of nowhere! What about the death of a passenger in your own car? Many possibilities.
I expect that over time texting while driving will be punished as DUI/DWI is now. The police will use a Textalyzer1 to analyze cell phones at a crash site to determine whether the driver was distracted because of recent use of a mobile device.
What are potential punishments?
At the top of the punishment pyramid is Second Degree Murder. Here, implied malice is shown if the texter had the intent to perform the act of driving in such a reckless manner as reflects knowledge that injury or death would likely result, thus evidencing depravity of mind.2 This mental state could be proven by knowledge imparted upon the driver from any previous violation(s) of the law. For example, if you got a ticket for driving while texting and as part of your punishment, you were required to participate in an educational program dealing with the dangerous and potentially fatal results of texting and driving and signed an advisement to that effect, you would be on notice. So when you subsequently texted while driving, in a trial, prosecutor could offer as evidence that advisement to prove that when you continued to text while driving, you were doing so with a conscious disregard that injury or death would result from any resulting collision when you were driving in an inherently dangerous manner.
A much easier felony to prove yet still serious is the common law offense of Involuntary Manslaughter: the killing of another person by an unlawful act that does not amount to a felony and is not ordinarily dangerous to life or by a culpably negligent act. Texting while driving, a violation of G.S. 20-137.4(A), should constitute a culpably negligent act because texting is an intentional violation of a statute which is intended to protect human life. A person acts in a culpably negligent way if he knows the probable consequences of the action but acts intentionally, recklessly or wantonly indifferent to the results.
Finally, misdemeanor Death by Vehicle3 occurs when an unintentional death results from the violation of a law relating to the operation, use of a vehicle or regarding the regulation of traffic and death proximately results from this violation. Death by Motor Vehicle applies when the circumstances do not establish the culpable negligence.
This blog only touches on possible criminal ramifications. There would be a civil suit for money as well as the emotional trauma inflicted upon you, your loved ones and the family of the victim. Most importantly, you would have caused the tragic extinguishment of a person’s existence prematurely. All because you needed to look at that text.
I am putting my phone under my seat or in the trunk, what about you?
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1.Cellebrite a company focused on the creation of data extraction, transfer and analysis devices for cell phones and mobile devices, is developing the textanalyzer.
2.State v. McAllister, 138 N.C. App. 252 (2000)
3.G.S. 20-141.4(a2)

Please Governor McCrory, I Don’t Want To Be A Secret Peeper!

Today I read that Governor McCrory has set up a 24 hour bathroom hotline to facilitate the reporting of persons of questionable gender, an “HB2 Offender Hotline.”
Although I doubt the veracity of this “news story,” don’t get any ideas. To the citizens of North Carolina, do not think that you can discreetly take photographs in the bathroom of gender-suspicious persons. There are a plethora of potential pitfalls with collecting evidence and taking photographs in a bathroom while an unsuspecting person is trying to engage in a private excretory function. In addition to being morally offensive, that method of evidence collection is called Secret Peeping and North Carolina law prohibits it. North Carolina General Statute § 14-202 is the Secret Peeping law which prohibits spying or secretly peeping into a room or bathroom for the purpose of viewing the body of, or the undergarments worn by, another person without their consent. Violation of the law is a Class 1 misdemeanor. Additionally, any person, who secretly peeps while in possession of any device which may be used to create a photographic image, is guilty of a Class A1 misdemeanor.
I will not be your peeper and I advise my other peeps not to peep either.

EXAMINING POLICE INTERROGATION TECHNIQUES: Securing The Confession

The focus of this blog series has been to expose the deliberate interplay of psychological techniques designed to elicit a confession. The nine step method explained in Criminal Interrogation and Confessions (1986) by Inbau and Reid culminates in steps seven to nine and the resulting confession.
Step seven is the alternative question. An alternative question is a question which presents two choices to the suspect concerning some aspect of his crime. Although both choices are an admission of guilt, one of the choices is morally appealing. An example of an alternative question includes, “Have you done this many times before or was this the first time?”; “Did you blow that money on drugs and partying, or did you use it to buy food for your family?”; “Was this whole thing your idea or did you get talked into it?”
None of these alternative questions addresses the actual consequences of the crime which the suspect may encounter so as not to be interpreted as a promise of leniency. Once a suspect opts for the more palatable option and acknowledges culpability, the oral confession follows.
In step eight, the interrogator develops corroborating evidence to fortify the acceptance of responsibility and obtains an oral confession.
In step nine, the oral confession is reduced to writing.
The interrogation is analogous to a dance; one party leads and controls the steps of the passive party. The first step is the accusation which advances to the development of the theme. The interrogator is always leading. The suspect will try to assert himself only to be ignored or dismissed. When the interrogator has refused to hear any denials, the suspect will withdraw and become passive. Once this vulnerable mood sets it, the interrogator switches tactics and draws the suspect in close and calls him by his name. Feeling validated by this attention, the interrogator delivers the alternative question and the suspect is presented with two choices with one being clearly more desirable. If the suspect selects an option, the interrogator needs only to wrap up the dance; the confession is a done deal.
The interrogation is never an opportunity for a suspect to explain his side. It is never anything other than a method by which the interrogator extracts a confession. The Miranda admonition cautions a suspect that he has the right to be silent and anything said may be used against him in court. Heed the admonition and don’t think that you are the exception; the person who can use the interrogation to your benefit. Stay silent and ask for an attorney.

Examining Police Interrogation Techniques: Handling Denials, Overcoming Objections and Re-connecting (steps 3-6)

The interrogation has begun; the interrogator has accused the suspect of the crime and developed his theme. Now, the suspect will begin to deny guilt. According to the nine step procedure for extracting a confession introduced in Criminal Interrogation and Confessions by Inbau and Reid, both guilty and innocent suspects will deny the accusations. Despite denials, a Reid trained interrogator “knows” that the suspect is guilty so there is no room for “weak denials.” Denials are not tolerated since the more a suspect denies involvement or is permitted to repeat or elaborate on a denial; the less likely a confession will result. Consequently, if the suspect tries to deny, the interrogator will ignore, interrupt or dismiss the denial by saying “we are beyond that point and we know you did it.”

By refusing to allow the suspect to deny the accusations or offer any details relating to his innocence, the officer overcomes the objections of the suspect and minimizes the importance of what the suspect has to say. An “objection” by the suspect is a statement offered by the suspect to prove that the interrogator’s accusation is false. In this step, the interrogator takes the suspect’s objection and uses it to further the interrogator’s own theme of guilt.

Having been rebuffed when attempting to deny, having all claims of innocence turned against him and not being able to get a word in edgewise, the suspect begins to withdraw. Responding to the suspect’s passive mood, the investigator moves his chair closer to the suspect in order to appear emotionally sympathetic and empathetic and quickly procures and retains the suspect’s attention by cultivating a personal connection. The interrogator moves closer to and physically touches the suspect. The officer maintains eye contact and begins calling the suspect by his first name. While the suspect’s “passive mood” is being carefully cultivated, the interrogator will condense his theme to one or two central elements and moves into the next step of the process designed to elicit the initial admission of guilt.

The last blog entry of this series will address this final stage.