Getting from DWI to Not Guilty
Posted by: euser
March 25, 2008
Topic: Criminal Law

So you've been charged with driving while impaired (DWI), and you're hoping for the best possible outcome. A not guilty verdict. Can it be done? The answer is sometimes, but it depends on the facts. If you have any chance at all, your lawyer is going to have to dig through the facts and find a gold nugget in your favor.

For almost all of my DWI cases, I start with the assumption that we are pleading not guilty and going to trial. That helps me have the right frame of mind as I analyze the issues. The first question is whether the officer had a legal reason to stop you. An officer cannot pull you over just because he feels like it. He must have reasonable suspicion or probable cause to believe that you have broken the law. If not, I file a motion to suppress the stop. If granted, the motion shuts the whole case down, barring the State from presenting any evidence and resulting in a dismissal of the charges.

If the stop is good, I then look at probable cause to arrest. If the officer smells an odor of alcohol on you, he may ask you to do field sobriety tests (walk and turn, finger to nose, etc). Or he may have you blow on a small, portable breathalyzer called an Alcosensor. You don't have to agree to do the field tests or blow on the Alcosensor, but if you do, the officer can use the results to reach the conclusion that you have probably been driving while impaired. In legal terms, that's "probable cause," and it's enough to get you arrested.

If I believe the officer did not have probable cause to arrest, I make a motion to suppress the arrest. If granted, the case is once again shut down, and the charges are dismissed. Because most DWI's involve an Alcosensor test prior to arrest, I have found that one of the best ways to challenge probable cause is to review the maintenance records for the Alcosensor. If it is not properly maintained as required by the North Carolina Administrative Code every 30 days, then I argue that its result is unreliable and cannot be used to form probable cause to arrest.

What if the stop is good and the officer had probable cause to arrest? Then we move to the Intoxilyzer test (or the EC / IR test for newer cases). This is the big machine at the Pitt County Detention Center that tests the alcohol in your breath and prints the result that will be used against you in court. The officer is required by law to follow a strict set of procedures when giving the test. The officer must advise you of your right to have a witness for the test and your right to refuse to take the test. He must also advise that if you refuse, your license will be suspended for one year, even if you are not convicted. He must also wait at least 15 minutes after giving the rights and before giving the test, to be sure that you do not eat, drink, or do anything else that could contaminate your mouth with alcohol and interfere with the test result.

If the officer does not follow the correct procedures, I can make a motion to suppress the result of the Intoxilyzer test. If I win the motion, then the State is left to argue that the other evidence in the case, apart from the Intoxilyzer, is enough to convict you. That's a tough argument for the State to make.

The final step is to review whether you were held too long after you were arrested and took the Intoxilyzer test. If the Magistrate put you under a high bond and held you in jail and prevented you from seeing your friends, then we can make a motion to dismiss the charges. The argument is that your friends could have seen you and could have testified that you did not appear impaired. If you were cut off from them when they came to the jail to see you, then you were deprived of their possible testimony to help you in court, and so we argue that the DWI should be thrown out.

That's an overview of the DWI analysis. There is more detail to it in an actual case, but at least that gives you a general idea. As you can see, my approach does *not* depend solely on the result of the Intoxilyzer test. Even if you blew a .08 or higher, you can still sometimes be found not guilty. I have represented lots of clients who blew over the limit and who were still found not guilty.

One footnote: for the new DWI laws that took effect on December 1, 2006, there is an additional layer of review in Superior Court if a District Court judge is inclined to grant a motion to suppress for any of the reasons listed above. I have been through the process now in three different cases, and it is a pain. But it has to be done if I am going to seek the best possible outcome for my clients.

So you may have a DWI, but don't give up. Get a thorough lawyer on your side, and you might get a better result than you expect!

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Using Technology in the Courtroom
Posted by: euser
March 11, 2008
Topic: Criminal Law

Technology is an important tool to use in the courtroom. Judges and jurors alike are accustomed to watching television and looking at a computer, and an effective visual presentation can be a powerful way to make a point on behalf of a client. But as with everything else in the courtroom, you need to think carefully about what you're doing. Through trial and error over the years, I have developed what I call the "Three Little Bears" approach to technology: not too hot, and not too cold, but (hopefully) just right.

Too hot: the overuse of technology. As a lawyer, you can labor for hours on a Powerpoint presentation, with slides that fly in from different angles and lots of other whiz-bang special effects. But overdoing it will distract the jurors from what you're trying to communicate. They end up enjoying your special effects and paying no attention to your content.

Too cold: the underuse of technology. A lawyer who stands in front of a jury with no visual aides and just talks and talks and talks convinces the jury of one thing: that he is boring. I recognize that not everyone is "hip" with high tech, but in this day and age, you have got to make use of the tools that are available. If you have nothing besides your voice, and your opposing counsel has his / her voice plus a cool visual presentation, your opposing counsel has the advantage.

Just right: using technology to *enhance* your content, not overwhelm it. I have Powerpoint presentations in court, but I rely on the basic slide formats, without a lot of crazy stuff jumping around the screen. I also have a digital camcorder, which allows me to video a crime scene and then send the video file to my laptop. Using a digital projector and a portable screen in the courtroom, I can show the scene to the judge and jury and illustrate the points that favor my client. You have to invest in the hardware, but once you do, the visual presentations become much easier. I also have started using a program called Sanction, which allows me to enlarge and highlight portions of documents and exhibits that I have scanned into my laptop. It's like John Madden doing a football broadcast, where you can draw circles and arrows on the screen to focus the attention of your audience on a particular part of the display.

So look for a lawyer who can use the tools of the computer and video age. You'll be glad you did when you go to court.

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Mental Health Issues in Criminal Defense
Posted by: Keith Williams
February 13, 2008
Topic: Criminal Law

A good criminal defense lawyer watches for mental health issues that may serve as some degree of defense to a criminal charge. There are lots of different ways that a person's mental health problems can affect a criminal case. Here's an overview:

Insanity: a person with severe mental health problems cannot be held responsible for their actions. If you think you are Elvis Presley on a mission from God to kill the next person who walks through your door, then you cannot be convicted of the resulting murder. If you were so far gone that you did not know right from wrong, then you cannot legally be punished for your actions. You *can* be deemed mentally incompetent and sent to a mental hospital for a long time, but you cannot be criminally prosecuted and sent to prison. Insanity is a complete defense against the criminal charge.

Diminished Capacity: let's say you are charged with assault with a deadly weapon inflicting serious injury with intent to kill. You stabbed someone in a fight, and they almost died as a result of their injuries. Let's also say that you were drunk. Really, really drunk. If you were that drunk, then you probably did not have the mental ability to form the intent to kill. In the words of the law, your "capacity" was "diminished" as a result of your "voluntary intoxication." So there's no way you could have formed the intent to kill; you were just too drunk. You can still be convicted of the lesser offense of assault with a deadly weapon inflicting serious injury, but you cannot be convicted of the greater offense of assault with a deadly weapon inflicting serious injury *with intent to kill.* Diminished capacity is not a complete defense, but it is enough to reduce the severity of the crime in the eyes of the law and thereby reduce your prison sentence.

Mitigating Factors: What if you have mental health issues that contributed to the case in some way but that are not enough to constitute insanity or to undermine intent? For example, a person with bipolar disorder could argue that they committed their crime while in the frenzy of a "manic" phase. They knew they were doing wrong, but they continued on anyway. It's not insanity, and it doesn't go to intent. Nevertheless, it is still a mental health issue that is relevant at sentencing. It's something that might cause the judge to impose a mitigated (shorter than normal) sentence, a factor that makes the case seem less bad than it otherwise would have been. In legal terms, it is a "mitigating factor" which is "insufficient to constitute a defense but which significantly reduces the defendant's culpability for the offense."

Other: there are lots of other ways that mental health issues might be relevant in a criminal case. Does the defendant's mental health problem render him incompetent to make decisions and thereby show that he lacks the capacity to proceed to trial? Does the mental health problem of a witness show that the recollection and testimony of the witness are suspect and should not be trusted by the judge or jury? Expert witness testimony is sometimes needed from a psychiatrist or a psychologist to help the judge and the jury understand the nature and extent of the mental health issues presented by the case. That can be expensive, but it is a wise investment if it is helpful in reducing a prison sentence or attacking the credibility of a witness.

In sum, if you have a history of mental health problems, or if you were really drunk at the time of your offense, you need to be sure your lawyer knows about it. S/he can subpoena your medical records and interview witnesses in order to get a better understanding of whether the issue will help you in criminal court. It may not be a total defense, but it can still be helpful in giving your lawyer a tool to use when talking with the prosecutor and the judges.

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Sharpening the Knife
Posted by: Keith Williams
January 24, 2008
Topic: Criminal Law

A good criminal defense lawyer is someone who is ready, willing, and able to take a case to trial. Even if the case appears that it might be for plea, the lawyer should still prepare the case as though it is for trial. That's because a prosecutor who sees that a defense lawyer is prepared for trial is sometimes willing to make a better plea offer to the client. The more work the defense lawyer does in getting ready for trial, the more reason the prosecutor has to consider a reduced plea offer that will make the case go away.

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The 411 on Speeding Tickets
Posted by: Keith Williams
January 18, 2008
Topic: Criminal Law

OK, time to fire up the blog once again. Thought I would start off the New Year by giving you the 411 on speeding tickets. I handle a lot of major felonies in federal and state court, but I also enjoy my traffic court practice. A nice change of pace, as long as you know the rules. And for you, wise blog reader, I am about to pull back the curtain and share with you some of the secret knowledge that guides me through traffic court.

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Erasing Criminal Charges from Your Record
Posted by: Keith A. Williams
November 06, 2007
Topic: Criminal Law

I handle a lot of "expungements" in my practice. An expungement is when you erase a criminal charge from your record. I get a lot of calls and questions about expungements, so I thought I would devote this blog entry to a brief summary of expungement law.

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ECU Students
Posted by: Keith A. Williams
October 22, 2007
Topic: Criminal Law

East Carolina University is a major attraction here in Greenville, North Carolina. Enrollment is more than 24,000 students, and a lot of activity in our town focuses on ECU. For the most part, it's good, clean, and legal fun. But once in while, it crosses the line into criminal court. That's where I come in.

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Why Criminal Defense?
Posted by: Keith A. Williams
October 12, 2007
Topic: Criminal Law

On this, my first foray into the blogosphere, I might as well begin with a large question: why do I practice criminal defense law? Lots of other options are out there: real estate, wills, trusts, corporate law, tax. So why criminal defense?

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