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?
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.

18-21 Year-Olds Catch Big Break for Minor Crimes In Durham County

If you are an 18-21 year old  “First Offender” who was caught with a small amount of marijuana, shoplifting or other minor misdemeanor offenses, you can avoid the entire court process under a new Durham program. Under the Durham Adult Misdemeanor Diversion Program, no  formal charges are filed if you agree to participate in the program. The arresting officer can “divert” you to this program. You would have 90 days to complete relevant workshops such as alcohol and/or drug education or conflict-resolution classes. Additionally, participants would need to observe a court hearing and learn of the ramifications of an adult criminal record. Successful completion results in the absence of formal charges in court. The matter is dropped.

Potential charges such as those involving firearms, sexual offenses and traffic matters are outside the scope of this program but many first-time, non-violent offenses will qualify and the program is FREE!!!

DWI Marijuana: When Every Day is 420

With the legalization of marijuana and reduced penalties for its use, it logically follows that there will be an increase in DWI marijuana cases. The number of drivers with marijuana in their systems increased from 8.6 percent in 2007 to 12.6 percent in 2014. Although there is a plethora of research on DWI alcohol, the opposite is true for marijuana. Additionally, field sobriety and blood alcohol concentration (BAC) tests do not translate to effective indicators for marijuana impairment.
Use of marijuana can: (1) impair a person’s problem solving ability (2) can reduce a person’s ability to focus on several things at once, (3) can inhibit the part of the brain which initiates and coordinates movement (4) affects concentration and (5) reduces peripheral vision. But studies show that drivers who have ingested marijuana tend to be aware that they are impaired and try to compensate by driving slowly and avoiding risky actions.
DWI marijuana and alcohol drivers have different deficits and drive differently. Alcohol impaired drivers tend to drive faster than normal and to overestimate their skills. The opposite is true for marijuana impaired drivers who could pass simple tests of memory, addition and subtraction, whereas alcohol impaired drivers were much more likely to fail.
Field sobriety tests such as walking heel to toe (nine steps one way, turning on one foot and walking back), standing and balancing on one leg and the nystagmus test (tracking a pen with your eyes) will snag 88% of drivers under the influence of alcohol but will only catch 30% of drivers who use marijuana regularly.Additionally, accurate measurements of impairment are illusory. With alcohol, blood tests will measure the amount of alcohol in the blood at the time the blood is drawn. Breath tests measure the alcohol which has passed into the membranes of the lung’s air sacs and then into the air. The concentration of the alcohol in the air exhaled is related to the concentration of the alcohol in the blood and can be detected by the breath alcohol testing device. The alcohol concentration in the breath is related to that in the blood by the ratio of 2,100:1.
However, when marijuana is ingested, the active ingredient, THC, leaves the blood stream quickly and is absorbed by the brain and fatty tissues. So by the time a person is actually impaired and the THC levels are the highest (10 to 30 minutes after ingestion); the THC has left the blood. Blood tests will show recent use but not necessarily impairment. Urine tests are not an accurate indicator of impairment since the THC stored in fat cells slowly releases metabolite days and weeks after use.
To compound this conundrum, scientists do not agree on how much THC is necessary to cause impairment. Several states have set a numeric limit for the amount of THC in the blood from 1 nanogram per milliliter to 5 nanograms per milliliter. Scientists argue that the 5ng/ml is too high but zero tolerance is erroneous since the existence of THC metabolite is not proof of impairment. Some states have one standard for THC in the blood and another for THC metabolite.
Since nobody seems to agree about anything and until a new breathalyzer is created which can detect recent marijuana use, you may want to consider pushing the case to trial.



1. The National Highway Traffic Safety Administration studies 2013 and 2014.
2. Psychopharmacology, “A placebo-controlled study to assess Standardized Field Sobriety Tests performance during alcohol and cannabis intoxication in heavy cannabis users and accuracy of point of collection testing devices for detecting THC in oral fluid,” Bosker et. al, 2012.
3. “Driving While High”, E. Gray, Time, 10/13/14, p.56, Dr. Marilyn Huestis, National Institute on Drug Abuse, Psychopharmacology, Drummer et al. 2004; Grotenhermen et al. 2007.
4. “Stoned driving on the rise, but is it as risky as drinking and driving?” CBS News, 2/11/15.
5. “Driving under the Influence, of Marijuana, Koerth-Baker, NY Times, 2/17/14.
6. Freudenrich, How Breathalyzers Work,
7. “Driving While High”, E. Gray, Time, 10/13/14, p.54, 56.
8. Id at p. 56.

That Checkpoint Stop Could Be Illegal

Police are allowed to set up “Driver’s Safety” checkpoints with the stated purpose of checking for vehicle related offenses: DUI/DWI, driver’s license and/or registration violations. These checkpoints must follow a certain protocol but in a Driver’s Safety checkpoint, all cars or cars in a regular pattern such as every third car, can be stopped without any reason to do so.
These vehicle safety checkpoints are completely different from a general crime control checkpoint because the police cannot stop cars to check for criminal activity without individualized suspicion. That is, they have to have some specific information about the particular car in question before it can be stopped. A checkpoint to search cars for illegal narcotics is an example of a general crime control purpose.
The first step in a checkpoint case analysis is to figure out what is the primary purpose of the checkpoint. The reasons and evidence submitted by the police such as a written plan for the checkpoint and their stated reasons for its existence must be closely scrutinized to determine the whether the actual purpose of the checkpoint is valid or whether it is a mere subterfuge for a general crime control purpose.
Secondly, the judge must balance the public/police’s interest in a checkpoint against the privacy interests of the individuals stopped.
The relevant questions are:
(1) How important is the purpose of the checkpoint?
(2) What were the reasons for why the checkpoint was set up in the first place?
Why was this particular location selected? Was the checkpoint planned in advance or at the last minute? Did the police have a pre-determined start and stop time? Why were these times selected?
(3) Is the intrusion on privacy interests no greater than necessary to achieve the objectives? Relevant issues are: the amount of interference with traffic? Were people told in advance of the checkpoint? Was it clear that it was a police run checkpoint? Who authorized or decided that there should be a checkpoint? Who chose the location? Was every car stopped or was a specified pattern employed? Was the checkpoint operated pursuant to specific oral or written guidelines?
What should you take away from this post? If you are stopped and searched by police at a checkpoint, the evidence and the case could be thrown out if the main reason for the checkpoint is to reduce crime and if the benefits of the checkpoint are outweighed by other factors. This is one of those situations when an in-depth legal analysis is required. After all, if A Motion to Suppress is granted, your case will be dismissed!

Neuroscientists find a way to diminish traumatic memories

This article explains the initial stages of a revolutionary experimentation which could lead to the diminution of traumatic memories: being a victim of sexual/physical assault or any crime which leaves residual emotional anxiety and trauma as well as PTSD. This fascinating article outlines the possibility of a much quicker and scientific alternative to psychological counseling, therapy and analysis.

There are no exceptions that allow underage drinking in NC BY JOSH SHAFFER

This is a reprint of an article in the News and Observer on 8/14/14

“It can happen at a wedding party. It can start as a graduation toast. It can escalate at the dinner table after a first glass of wine. Teens drink alcohol. Parents get arrested. It’s rare for adults to be cited for aiding underage drinking: only 20 people in Wake County last year, and 272 statewide. But charges filed this week against a Raleigh couple allege that an 18-year-old drank alcohol at their home before a fatal crash on June 28, at an event state alcohol agents described as a wedding-related party. The case has brought new attention to this often-misunderstood truth: The law punishes adults for allowing minors to drink, no matter when or where. “I think a lot of parents feel like, ‘If I know where they’re at, and I know they’re here, then they’re safe,’ ” said Kristen Booker, a criminal defense attorney in Raleigh and Wendell, whose practice includes underage drinking. “I hope it changes attitudes.” State Alcohol Law Enforcement agents get several complaints a year about underage drinking at weddings, said Jeff Lasater, special agent in charge for the Triangle area. But those are rare. More often, he said, they respond to high school parties that a school resource officer knows about. In many, parents are home, and they can be charged. “I think a lot of parents think it’s a safer alternative,” said Lasater, who added that some parents will confiscate keys that partygoers are able to find later. “It’s a common misconception.” In June, Jonathon Gregory Taylor died after the BMW he was driving crashed on Hunting Ridge Road after traveling at what investigators estimated at 89 mph. Arrest warrants said he had been drinking at the home of Charles Joseph Matthews, 59, and Kimberly Hunt Matthews, 52, at 904 Vance St. ALE agents said they did not know the number of people at the wedding-related function because they arrived several hours after it ended. Matthews is a Raleigh neurologist, and the Five Points home is large, valued in Wake County tax records at more than $2 million. Each of the Matthews adults was charged with four misdemeanor counts of aiding and abetting underage drinking. Thomas Blake Matthews, 18, was also charged with illegally buying a 375-milliliter bottle of Jack Daniel’s Honey liquor – about 12.7 ounces – at the Wake County ABC store in Cameron Village and giving liquor to three underage people. A clerk at the ABC store, James Gordon Wilson, was also charged in the case. Lasater said underage drinking with adult consent likely happens more often than agents know. “The only time we know about it is if it’s a bad consequence,” he said. Last year, a couple in Long Island, N.Y., got charged after a girl at their home developed alcohol poisoning. She had been drinking with their daughter and other youths after a high school banquet, and the parents called 911 themselves. Conversations about young people and drinking frequently turn to attitudes in Europe, where children often grow up drinking wine with dinner, and where beer can be drunk by people as young as 14. The question often rises, is there a line when a first drink before 21 is a rite of passage rather than a crime? “My answer would be, ‘No,’ ” said Booker. “No matter what.”” [email protected] or 919-829-4818 Read more here: