Whether it be the seizure of a car after a DWI arrest, or a mandatory suspension for refusing to blow at the station, DWI punishments have been growing harsher each decade as the North Carolina legislature continues to try to cut down on incidents of driving while impaired. It wasn’t too many years ago that a North Carolina offender could opt for a 30 day driving suspension instead of the required 24 hours in jail or community service option. In 1993, the legal blood alcohol limit was changed from .10 to the current .08.
Continuing the trend of harsher sanctions for DWI, the legislature recently passed ‘Laura’s Law’. The law increased sanctions for DWI convictions. It increased the length of time that repeat offenders may be incarcerated after a conviction, and increased the length of time that continuous alcohol monitoring may be required as a condition of probation – among other changes. The new law applies to offenses committed on or after December 1, 2011.
As DWI laws become more stringent, greater challenges are posed for defense attorney’s who wants to successfully advocate for their client. Increasingly, District Attorney’s offices across the state are adopting policies that DWI cases are to be prosecuted, not negotiated. It isn’t often that a defense attorney will find an assistant district attorney with the discretion to reduce a DWI charge, even if the case is weak for the government. Judges, as elected officials, must also feel the pressure to be conservative when ruling on DWI cases.
The trend towards the stricter prosecution and punishment of DWI cases has also found it’s way to various law enforcement agencies across the state. More and more, police forces are using strategically placed checkpoints to enforce DWI laws. While these checkpoints often lead to numerous DWI arrests in one evening, they also provide fertile ground for defense attorney’s to challenge the state’s case based on a violation of constitutional rights.
In 1990, The United States Supreme Court upheld sobriety checkpoints against a fourth amendment challenge in Michigan Department of State Police v. Sitz. Motor Vehicle checkpoints in North Carolina have been used extensively since that time. They became specifically authorized in the North Carolina General Statutes under section 20-16.3A, but there are still questions related to how they should be employed.
The Supreme Court in Sitz said that DWI Checkpoints are not a violation of the 4th amendment. North Carolina went further, by allowing traffic checkpoints when they are used to determine compliance with the provisions of the traffic statute. (G.S. 20-16.3A(a)) 1 In 2009 the North Carolina Courts affirmed that the ‘enforcement of the State’s Motor Vehicle Laws’ is a valid purpose for a checkpoint. (State v. Veasey, ___ NC App ___ , 689 S.E.2d 530, (2009) (Veasey II). This ruling allowed officers in North Carolina to set up checkpoints for both license checks under the North Carolina general statute authority, and to also establish DWI checkpoint’s under the authority of the Supreme Court ruling in Sitz.
Defense attorney’s can win the DWI case when the checkpoint involved was established without a clear definition of it’s purpose. When it is not clear whether it’s purpose was to ensure compliance with the traffic laws, or to specifically enforce DWI laws, it can become a checkpoint used for ‘general crime control’. The U.S. Courts have been clear that Checkpoints established to enforce general crime control are not permitted. (City of Indianapolis v. Edmund, 531 U.S. 32 (2000).) For example, defense attorney’s in North Carolina will find in their discovery packets, a one page plan to a ‘license and registration checkpoint’ that was set up around midnight and down the street from the local bar. These are cases that should be challenged.
In Order to protect against the unfettered discretion that would lead a field officer to establish a checkpoint which calls itself one thing but is in actuality something else, North Carolina courts have discussed the issues of purpose and reasonableness. The checkpoint must be reasonable and the purpose of the checkpoint must be clear. (State v. Rose 170 NCApp 284, (2005).
Author: Jesse Scharff Google
