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!
Author: Lynn Norton-Ramirez
http://www.nbcnews.com/watch/nightly-news/drunk-driving-simulation-program-aims-to-teach-teens-377752643761
1) Misdemeanor and Felony Deferrals- Amended G.S. 15A-1341 (probation), effective December 1, 2014, provides that when a defendant pleads guilty or is found guilty of a Class H or I felony or a misdemeanor, the court may, on the joint motion of the defendant and the prosecutor, defer further proceedings for the possibility of conditional discharge. The court must make certain findings (defendant has not been convicted of a felony or a misdemeanor involving moral turpitude, not previously placed on probation, etc.) without entering a judgment of guilt and place the defendant on probation to allow the defendant to demonstrate good conduct. Another conditional discharge provision provides that when a defendant is eligible for the drug treatment court program, a court may, without entering a judgment of guilt and with the defendant’s consent, defer proceedings and place the defendant on probation to allow participation in and completion of the drug treatment court program.On fulfillment of the terms and conditions of a conditional discharge, a plea or finding of guilt previously entered must be withdrawn and the court must discharge the defendant and dismiss the proceedings. However, if there is a violation of a term or condition of conditional discharge, the court may enter an adjudication of guilt and proceed as otherwise provided.
2) Reduced punishment if defendant possesses marijuana paraphernalia. New G.S. 90-113.22A
creates the Class 3 misdemeanor of possession of marijuana paraphernalia, and marijuana is removed from the current Class 1 misdemeanor of possession of drug paraphernalia in G.S. 90-113.22. Also, the new Class 3 misdemeanor is made a lesser-included offense of the Class 1 misdemeanor. These changes are effective for offenses committed on or after December 1, 2014.
S.L. 2014-119 (H 369)
In California, the first jurisdiction I practiced as a lawyer, if you were stopped for a DWI/DUI, you were given the option of which type of chemical test: blood, breath or urine, you wanted. As long as you selected one and completed the test, no refusal was alleged. The benefit of blood or urine was that some of the sample was tested by the police agency but the remaining amount, a “split” was available for defense testing. With a breath test, there is no independent test possible. Consequently, if you selected the breath test but wanted a split available for defense testing, you could always select an additional test. I have always believed that the inherent conflict between the role of the police as an “investigatory” agency who also tries to aid in your conviction, mandated that any observations or recordation of what allegedly transpired was suspect and independent verification was necessary. When I began to practice in North Carolina, I was shocked to discover that my skepticism of the objectivity of police was not a concern. Independent verification by the defense was not an issue.
The law in North Carolina provides for the driver to have a witness but only as to a mutually agreed upon chemical test. The officer decides which test and how many tests will occur. The police officer decides whether a “blood or other bodily fluid” will be tested; the choice is not yours. If the officer selects a breath test and you want an independent verification, you have to go as soon as possible to a private laboratory or medical facility for your own blood draw.
If the officer offers a breath test and you comply, the officer may then order a blood test and if you refuse to submit, the officer can: (1) get a warrant and force the blood test, (2) deny you a witness to this second test and (3) you have “refused” within the meaning of the statute and will suffer a more onerous driving privilege suspension… even though you submitted to the initial test.
If you are stopped and you do not believe that a breath test results accurately measure your blood alcohol concentration, get a second test. Ask the officer for the second test and if refused, get your own done. Also, even if you do not want a blood test, if the officer requires one after a breath test, comply- unless you want to suffer the driving privilege ramifications of a refusal.
[Whether you are best served in the trial by refusing is a topic for another Blog.]
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.
In the New York Times article, “Acquitted of Murder, Rapper Is Convicted on Weapon Charge” Lorne Manly discussed the recent new assault on the First Amendment. Currently, prosecutors are trying to introduce rap lyrics as confession evidence in pending criminal trials. Their argument is that merely setting the confession to music or in the form of a rap does not detract from its incriminating nature. Furthermore, courts are admitting this evidence.
What ever happened to artistic license? When Johnny Cash created his alter ego, an inmate in Folsom prison who had “shot a man in Reno just to watch him die,” No police officers began to comb their cold case files for an unsolved homicide in Reno. People understood the concept of artistic license.
This development could be the beginning of the end for rap. What do rap artists rap about? Not sunshine and rainbows but life observed: drugs, guns, gangs, shootings, police harassment etc. Consequently, if police and prosecutors can use the lyrics to criminally prosecute, the chilling effect on the desire to write and perform a song or rap is enormous. Why risk the harassment, possible incarceration and legal proceedings in order to express oneself? If that is not a violation of free speech, what is?
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: http://www.newsobserver.com/2014/08/14/4072103/there-are-no-exceptions-that-allow.html#emlnl=Crime_and_Safety#storylink=cpy
“Several Durham police officers lied about non-existent 911 calls to try to convince residents to allow them to search their homes, a tactic several lawyers say is illegal. The officers targeted residences where individuals with outstanding warrants were thought to be living, and told them that dispatch had received a 911 call from that address, when no such call had been made.
However, Durham Police Chief Jose Lopez says the 911 tactic was never a part of official policy. Last month, the department officially banned the practice, according to a memo from Lopez.
The tactic came to light at a court hearing on May 27, when a Durham Police officer testified it was part of official departmental policy. The hearing involved a defendant who had been charged with marijuana possession. (The INDY is not naming the defendant because the charges against her were dropped.)
In February, Officer A.B. Beck knocked on the door of the defendant’s home in South-Central Durham. When the defendant answered the door, Beck told her—falsely—that someone in her home had called 911 and hung up, and that he wanted to make sure everyone was safe. The defendant permitted Beck to enter her home, where he discovered two marijuana blunts and a marijuana grinder.
When Beck took the witness stand, he admitted to fabricating the 911 story in order to enter the house. Beck testified that his true intent was to serve a warrant, though he never produced the warrant in the courtroom.
Beck further testified that the 911 ruse was permitted under a department policy in cases where domestic violence is alleged, recalled Morgan Canady, the defendant’s lawyer.
During cross-examination, Canady quizzed Beck further.
Did you say there was a 911 hang-up? she asked.
Yes, he said.
But there was not a 911 hang-up?
No.
So you entered the house based on a lie?
Yes.
And this is your policy for domestic violence warrants?
Yes.
At that point Canady made a motion to suppress the marijuana evidence. Since the defendant’s consent was based on false premises, Canady reasoned, the consent was not informed and voluntary. Marcia Morey, chief district judge for Durham County, allowed the motion to suppress the evidence.
“You cannot enter someone’s house based on a lie,” Morey said from the bench during the hearing.
Without the evidence, the district attorney’s office dropped the charges.
“People have a constitutional right to privacy, and you can’t fake someone out of their constitutional rights,” said Durham defense attorney Brian Aus, who was not involved with the case. “You’ve got to be honest about this stuff.”
Ten days after the case was dropped, Chief Lopez sent a memo to all police department personnel banned the 911 ruse tactic. The department provided a copy of the memo to the INDY.
“It has recently been brought to my attention that some officers have informed citizens that there has been a 911 hang-up call from their residence in order to obtain consent to enter for the actual purpose of looking for wanted persons on outstanding warrants,” said the memo. “Effective immediately no officer will inform a citizen that there has been any call to the emergency communications center, including a hang-up call, when there in fact has been no such call.”
Asked why Officer Beck considered the 911 ruse tactic permissible, a police spokesperson said, ‘the department is looking into that.'”
by John H. Tucker @JH_Tucker | July 09, 2014 INDY week