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DRIVING WHILE IMPAIRED – Defining “Driving”

As always, we begin our analysis by reviewing the relevant law, N.C.G.S. 20-138.1: “A person commits the offense of Impaired Driving if he drives any vehicle upon any highway, any street, or any public vehicular area within this state: While under

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DRUGGED DRIVING IN NORTH CAROLINA

Drugged Driving – or Drug DWI – is a form of “Impaired Driving,” under N.C.G.S. 20-138.1. This is the same law that the State uses to convict drunk drivers. In other words, the same law governs drunk driving and drugged driving. But, operating under the influence of drugs, and operating under the influence of alcohol, are two very different things.

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Serious cases require serious representation.
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DRIVING WHILE IMPAIRED ∙ dwi / dui

The most serious non-felony known to North Carolina law • Mandatory Driver License Revocations • Fines, Costs and Mandatory Jail or Prison for Repeat Offenders • We remove the fear of the unknown by explaining everything you need to know, most importantly: what we do to help • Step 1 is on you, the rest is on us.
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ARRESTED FOR NC DRIVING WHILE IMPAIRED (DWI)

EARLY MORNING, SATURDAY FEBRUARY 15TH, 2020 1:47AM. HUNTERSVILLE, NC.

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Blue lights in the rear view; there’s no other cars on the road, so he must be the target. “What the -?” He wasn’t even speeding! Everyone always says that they’ve only had 2 beers, but this time it’s actually true! He must have been speeding a few miles over the limit or something. Pulling his car off on the right shoulder, he slides it into park and waits. BAM! A flood light beams from the driver’s side mirror of the patrol car parked behind. It’s so damn bright that it genuinely takes him by surprise. That ultra-bright light beaming not only off every mirror in the car, but off of every surface; the leather steering wheel seems to somehow reflect it! His eyes start to hurt from such bright lights; but “just relax,” he tells himself, “you’ve been pulled over before; you weren’t doing anything wrong.”

TAP-TAP-TAP of metal on glass, this time from the passenger side window. That was a surprise, he’d been expecting an officer from the left. He turned his gaze to see a stern looking officer, probably mid-40’s with short brown hair, looking straight into his eyes. He pointed down, as if to indicate that the driver needed to roll down the window. When the window was fully lowered, then and only then did the officer speak: “sir, please turn the dome lights on in your vehicle.”

Shit – he knew that. Quickly, he reached his right hand up to “Sir!” the officer’s voice froze him in his path. “Do not make any sudden movements in the dark – this is for my own safety. Do you understand?” His voice is stern, definitively more authoritative than his first request. You should apologize, right?

“Yes sir, officer, I’m so sorry, I’m just nervous that’s all. I really didn’t mean to reach so quickly. I’m not really a figidity guy, but I get nervous around cops. Not that I have a reason to or anything. I just want to make sure I’m doing everything right.” He noticed that he was rambling; moreover, the officer hadn’t interrupted him at all, he simply let him keep talking. “Say, why did you pull me over tonight anyway?”

Without so much as blinking, the officer kept staring directly into the driver’s eyes. Without answering, he said just five simple words: “License. Registration. Proof of Insurance.” This time, he reached slowly towards his back pocket – extra slowly this time – to retrieve his wallet. After fumbling through a few receipts, two expired debit cards, and a few floppy dollar bills, the driver located what he needed: official documents. Handing over his credentials, the driver happened to drift his eyes across the rear-view mirror, unintentionally – and only now did he notice the two other squad cars that had parked directly behind the original officer. “This can’t be good…” he almost blurted out loud. “Sir, I’m going to go back to my vehicle for a few minutes; please leave your lights on and do not move the vehicle. Do you understand?” The driver nodded in the affirmative.

As the officer turned back towards his car, he finally breathed a sigh of relief. He really didn’t have anything to hide – police just made him nervous. The cool winter air blew through both open windows; and as he looked into the rearview, he noticed his cheeks had become red and flushed from the cold, brisk air. “Where are you coming from tonight?” asked a voice right beside the driver’s face. Another officer – appeared almost out of thin air, this time on the driver’s side, where his window was already down, and where he was caught completely off guard! The newest one was only inches away, right up in the driver’s face before asking for his whereabouts. “Uh…” he stuttered, still completely surprised. “Poker night with the guys, up off 115. I think the neighborhood is called Heritage Green…?”

The officer let him speak, but always had follow up questions: how long were you there? Do you play poker every week? Win any money? How many people? And then, the question the driver knew was inevitable from the very beginning:

“What have you had to drink tonight, sir?” He was so close, his face seemingly only inches away. You can’t lie to a police officer, right? Isn’t lying to an officer a crime? He’ll understand that people don’t get drunk from two beers. “Officer, I -“

“It’s ‘Trooper,’” he interrupted, bluntly.

“Sorry – uh, Trooper, I had two beers a few hours ago at my buddy’s house. I’m definitely not drunk or anything.” The trooper let him finish talking; he debated whether he should say anything else. He decided: Yes: “…and I’ve got a clean driving record – and why am I being pulled over anyway?” The trooper let him finish, then waited even longer just to make sure the driver didn’t have anything else to add before stating that the original officer would return soon, and that he could explain the reason for this traffic stop. The lights from the rearview seemed to be getting brighter this entire time!

In any arrest, there is a specific moment – a definitive point in time where the person being arrested realizes that he is going to jail. He cannot talk his way out, and incarceration is inevitable. That point in time – in this case – happened exactly after the Trooper’s next request for the driver: “Sir, please turn the car off and step out of your vehicle.”

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NORTH CAROLINA LAW, N.C.G.S. ⸹ 20-138.1, CRIMINALIZES IMPAIRED DRIVING

North Carolina prohibits the operation of a motor vehicle on any highway or public place:

  • While under the influence of an impairing substance; OR

  • With a blood alcohol concentration of .08& or more (.04% for drivers with CDL endorsements); OR

  • With any metabolized schedule one controlled substance (such as opiates or benzos) in your system.

Prosecutors typically proceed under a Substantial Impairment theory when, for whatever reason, a chemical test is either unavailable or inadmissible. This could happen for a variety of reasons: perhaps the crime lab has improperly erred tracking the chain of custody, or in cases where the driver refused to blow, a chemical test of simply not available. Here, facts such as weaving, speeding, performance of SFST’s, and admission(s) to drinking become especially important.

Prosecutors proceed under Prong II impairment theorys when they have chemical tests at their disposal showing that at any relevant time after driving, the driver had a blood alcohol content of .08 or higher. This is typically obtained through a breathalyzer machine, preformed at the jail rather than on the side of the road.

In suspected drugged driving cases, or where the driver refuses to blow, but police demand a blood test, a driver can be found guilty of DWI if any amount of a Schedule I substance is detected in their blood or urine. This applies even if the medication detected was doctor-prescribed.

“Operation” means having “physical control” over a vehicle, so depending on the circumstances, a driver can be convicted of a DWI without the vehicle being in motion.

“Under the Influence” means that a person has ingested a substance which has caused appreciable impairment to the driver’s faculties.

Driving While Impaired (DWI) is the most serious misdemeanor under North Carolina law. I tell every one of my DWI clients that DWI law is more technical than a murder case; the evidence is fleeting, only existing for typically a few hours, and disappearing by the minute. To prove guilt, the State must collect and preserve that evidence before it disappears, but in order to do so, several invasions must be made to the driver’s privacy rights. The law of impaired driving involves important constitutional rights, many of which the police must violate to collect evidence and secure drunk driving convictions. Our justice system balances the competing societal interests of preventing and punishing drunk drivers with personal privacy interests. All levels of appellate courts across all 50 states (plus the federal judiciary) have struggled with exactly where to draw these lines. DWI law (from an attorney’s prospective), is a complex blend of Constitutional Law, Criminal Procedure, technical knowledge, and a firm understanding of human biology. Many fine attorneys spend their entire careers in just this one single practice area; it’s extremely difficult for general practitioners to become masters of this highly specialized craft.

Consider for a moment some of the rights we enjoy as American citizens – especially those we always take for granted; those rights we never stop to consider. Under the 5th Amendment’s “liberty” clause, citizens enjoy an unenumerated right to travel the public streets, highways, and thoroughfares free from unwarranted, and unsolicited, police interference. We have the right to come and go as we want, to travel day and night, without justification, explanation, or undue harassment from police.

Yet in the 1990 case of Michigan v. Sitz, 496 U.S. 444, 110 S.Ct. 2481 (1990), the United States Supreme Court held that the societal value of preventing drunk drivers outweighed the personal freedoms guaranteed to motorists through the Fourth Amendment. Before reaching the U.S. Supreme Court, both the Michigan Court of Appeals, and the Michigan Supreme Court agreed with the trial court’s findings; namely:

  1. The State has a grave and legitimate interest in curbing Drunk Driving;

  2. Sobriety checkpoint programs are generally ineffective (evidence showed that during the only operation conducted [which lasted 75 minutes], 126 vehicles passed through the checkpoint, with an average delay of 25 seconds per vehicle, and that only 2 drivers were arrested for Driving Under the Influence of alcohol (only 1.59% of stopped drivers were driving under the influence);

  3. Evidence at trial from other States, including Texas, elaborated upon the ineffectiveness of these checkpoint programs, and that because they are generally ineffective, they do not significantly further the state’s interest in curbing Drunk Driving; AND

  4. That while the checkpoint’s objective intrusion on individual rights in slight, their “subjective intrusion(s)” is/were substantial. Id., at 439, 440, 429 N.W.2d, at 183, 184.

In its reversal, the U.S.S.C. (in a 6-3 decision) distinguished earlier decisions involving the constitutionality of checkpoints where police were searching for illegal aliens instead of drunk drivers [distinguishing Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979)]. The court explained that during impaired driving checkpoints, a “seizure,” within the meaning of the 4th Amendment had in fact occurred; thus, the question becomes whether such seizures are “reasonable” under the 4th Amendment. In determining reasonableness, courts must balance: the magnitude of the drunken driving problem or the States’ interest in eradicating it against the measure of the intrusion on motorists stopped briefly at sobriety checkpoints. Although Michigan courts deemed this intrusion “substantial,” the U.S.S.C. decided that the intrusion was merely “slight;” this one word served as the sole basis for reversal and stripped American citizens of their constitutional right to freely travel without police interference.

Consider other personal freedoms guaranteed by the Bill of Rights, but slowly being chipped away by the federal judiciary: the right to he secure in one’s person, houses, papers, and effects; the right against self-incrimination; the requirement of probable cause prior to an arrest; the right to procedural due process before the deprivation of liberty (including Notice and an Opportunity to be heard); Even the Presumption of Innocence. Each of these individual rights appear in DWI cases – each have been whittled away over time by an overreaching Federal Bench under the guise of “societal interests.”

DWI law involves much more than drunk, or drugged, drivers. DWI law involves personal liberties guaranteed by our Nation’s founding documents, and the erosion of the rights in exchange for securing drunk driving convictions is a dangerous process that sacrifices personal freedoms in favor of Police freedoms. I believe that the very best DWI attorneys have a clear understanding of the stakes in these sort of cases, and that if we are going to allow police the ability to intrude upon individual liberties, then they must be required to follow very clear policies and procedures absolutely, exactly, and specifically. Their failure to do so – to limit themselves in a show of self-restraint – must result in a dismissal of charges, or a finding of Not Guilty. The law has a built-in mechanism essentially codifying this principal, known as the Exclusionary Rule, but it often does not go far enough. To be fair, Police Officers generally want to follow these rules: the last thing they want is to commit error resulting in dismissal – and thus a guilty person going free.

Consider the other personal freedoms at stake in DWI cases: involuntary (and oftentimes “warrantless”) blood draws; arrests lacking probable cause, the law of evanescent evidence and disappearing blood alcohol content (exigency & urgency). Consider a person’s right to have their own independent chemical test conducted, for use as repudiation at trial of the accuracy of the state’s machines and equipment – obtaining an independent chemical test is impossible if the subject is in jail and under any sort of secured bond.

DWI is the most technical crime known to law. Excellent attorneys spend the duration of their careers striving to understand this hyper-technical niche. If you’ve been charged with DWI, my advice to you is to avoid a “General Practitioner” at all cost: this field is simply too difficult, too technical, and too important, for someone with only a half-grasp on the principals involved and required for effective representation. Excellence requires a career’s worth of devotion to truly excel in this ultra-precise niche.

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RELEASE FROM JAIL AFTER BEING CHARGED WITH DWI

MID-MORNING, SATURDAY, FEBRUARY 15TH, 2020 10:26AM. CHARLOTTE, NC.

“I wish I had my sunglasses;” he thought to himself, wincing his eyes involuntarily. The muffled thud of heavy steel doors closing behind him signaled that although he was finally out, his problems were only beginning. And although his wife hadn’t arrived yet to pick him up, he knew that their conversation would be physically painful for him. The phone call he had made a few hours earlier were bad enough. Thank God the kids weren’t in the car; she was going to have so many questions that he wasn’t going to know how to answer. This was the first time he’d ever seen the inside of a jail, except for on TV of course. “How can I fix this?” he kept asking himself, over and over, dreading the moment her car would turn left and onto this one-way road where he stood; dreading the moment this inevitable conversation could be delayed no longer. It wasn’t that she would be angry, he knew her too well. She wouldn’t be angry at all in fact, she’d be truly sad for him. The part he most wished to avoid was her disappointment.

She idolized him in so many ways, and no matter how many times he had told her that he wasn’t perfect, he would always catch her glancing at him in that adoring way which seemed to say it all, without saying anything. He had committed the greatest sin of all: failing someone you love. He was her Superman – before today.

He couldn’t decide what or how he felt, a state of emotional purgatory. Was he excited and relieved that she’d soon be there to take him home – back to the safety of their house? Was he terrified of the rest of the family somehow finding out? He knew all too well how his own family treated sins such as these: they were brushed under the rug, never to be mentioned after resolution. Was he dreading the slow car ride back to Lake Norman? He felt emotionally blank, a sheet of paper without words. A pop-quiz full of questions and no answers.

When he had been released, a jailer stuffed a stack of wrinkled paperwork under his arm and buzzed open the door – that was it. There was no discussion about next steps; There was no advice about “who’s the best DWI attorney?” He didn’t even have a cellmate to ask because he had been kept in a holding cell all night – completely alone. No one spoke to him, the only words he remembered were said as he sat before a breathalyzer machine earlier that morning. They seemed to all be one-word commands: Blow. Harder. Sign. Date. Undress.

Had he not read the disheveled paperwork, he wouldn’t even know that he had a court date in a few days: Tuesday, February 18th, Courtroom 1150, 9am. That was the full extent on his predicament, a future date. What would happen then? How long would it take? What would he tell his boss, that he had a last-minute doctor’s appointment? And if he had this many questions, imagine how many she would have! To make everything worse, there was nothing in the world he could say to quell her anxieties, to reassure her that everything would be ok. To be honest, he wasn’t even convinced himself that was true. It was then, right in the middle of pondering just how little he knew about what to do next that her black Acadia approached the light on McDowell, to turn left on 4th. And at that moment, he didn’t care about trying to define his feelings. He briskly trudged toward the curb, opened the door, slid onto the passenger seat, and melted into a feeling of home. Security. Protection. He didn’t say anything because he didn’t know what to say. And neither did she.

In 1990, North Carolina’s General Assembly passed the Structured Sentencing law with broad, bipartisan support in both chambers. The law governs both the types of punishments, and the lengths (or limits) of those punishments and apply to virtually every misdemeanor and felony known to state law. Structured Sentencing is based on a handful of legal principles, and the topic of Crime and Punishment. When a person pleads guilty to a crime or is found to in-fact be guilty of a crime, Structured Sentencing regulates what punishments the judge is authorized to order; Judges do not operate with limitless, unfettered discretion. The principles underlying this law are:

  • PROPORTIONALITY. Sentences should be proportional to the severity of crimes. It should be measure by the harm caused to the victim, and the offender’s criminal record.

  • HONEST. The sentence imposed should be truthful; the sentence ordered by the judge should bear a close resemblance to the actual sentence served; legal mechanisms that reduce the punishment imposed by the judge (such as early parole), should be abolished. 60 days should mean exactly that – 60 days.

  • CONSISTENT. Sentences should be consistent; people convicted of similar crimes, having similar prior records, and harming victims to the same extent should receive similar punishments.

  • PRIORITIZATION OF RESOURCES. Sentencing policies should utilize limited resources in a manner which reserves the most serious punishments for the most serious offenders. Jails and prisons should be reserved for violent and/or repeat offenders; less serious punishments (such as fines and community service) should be used for first-time and/or non-violent offenders.

The principals behind Structured Sentencing are admirable: they seek fairness, equity, and legitimacy. And although this law applies to virtually all North Carolina crimes, they specifically exempt both Drug Trafficking crimes and Driving While Impaired. These crimes are sentenced using the older law Structured Sentencing replaced: The Fair Sentencing Act of 1981.

Before Structured Sentencing, there was the Fair Sentencing Act of 1981. The law sought to change what had been viewed as the “soft on crime” sentencing practices that had allowed state crime rates rise to all-time highs. In 1977, during his first gubernatorial term, Governor James B. Hunt sought to toughen his stance on crime, while simultaneously addressing an exponentially exploding out-of-control prison population. North Carolina notoriously had a national reputation for extraordinarily high incarceration rates, and Governor Hunt believed that his bill (known then colloquially as the ‘Presumptive Sentencing Bill’) would achieve several objectives, including perpetuating his “tough-on-crime” stance, while reducing incarceration rates. Unimpressed, legislators allowed the bill to die in committee.

Two years later, following a successful rebranding campaign (complete with a name-change) Legislators began to fall in line, also wanting to be viewed as being tough on crime. At that time, all throughout America, a crime epidemic had indeed surged. Prison overcrowding had become a major problem; nationwide, but especially so in the Tarheel State. Governor Hunt again convinced lawmakers to take a second look at what had now become known as the Fair Sentencing Act. Although the bill had many objectives (ironically, it failed to address the prison-overcrowding problem that caused it to come into existence in the first place), the primary goal was to indirectly reduce the length of prison sentences by establishing “presumptive sentencing ranges” for judges to use when sentencing convicted felons. Judges were presented with charts containing “presumptive sentencing ranges,” based on an offender’s prior criminal record. Presumptive sentences should be where discussions begin – they constitute the default start positions. Provisions for deviation were also included in the law, which allowed judges to deviate from presumptive sentencing ranges, whenever specific facts existed to justify deviating.

If the facts of a criminal case were particularly heinous, then the judge could lengthen the sentence higher than the presumptive range, into an aggravated range. Alternatively, facts that tended to mitigate the case had the possibility of shortening the offender’s sentence. These notions of Aggrevating and Mitigating facts, and arguing these facts at the time of sentencing, still exists in North Carolina DWI law today. Aggravators and Mitigators form the basis of DWI sentencing, which will be explored later, and in much more detail.

Despite the fact that the FSA did absolutely nothing to reduce prison overcrowding, reports published after it had been replaced by Structured Sentencing made several key, positive findings that occurred as a result of FSA, including:

  • FSA had been quite effective in eliminating disparities in active jail time between blacks and whites, and between men and women.
  • For years, North Carolina had one of the highest incarceration rates in the entire nation – the state was notorious for locking up virtually every type of criminal offender. Yet after the FSA’s passage (between 1980 and 1985), the number of prisoners sentenced per 100,000 people increased by only 4.1%. Nationwide during this same time, all states combined had an increase of 43.9% of prisoners sentenced! North Carolina’s notoriously high crime rate increased at only 1/10 the rate of the rest of the nation!

The Fair Sentencing Act of 1981, and not Structured Sentencing laws, govern the way North Carolina judges sentence people convicted of Driving While Impaired. This form of sentencing establishes a presumptive range for sentences, but also provides judges with broad latitude to deviate from the guidelines, if specific facts exist to justify a longer, or shorter, criminal punishment. North Carolina DWI sentencing today requires that both the state and the defense argue any facts during a sentencing hearing that should be considered Mitigating Factors and Aggravating Factors. In addition, State law has now established Grossly Aggravating Factors – those facts in a DWI case that make the case especially heinous. The presence of a single Grossly Aggravating Factor requires mandatory jail time.

Experienced and professional DWI attorneys explain the importance of these factors to their clients, and help clients obtain as many mitigating factors that may be available in their case prior to sentencing. This is what we mean when we say “We Set our Clients up for Success:” it means we help you acquire as many mitigating factors as possible prior to sentencing so that you receive the most reduced sentence available at law. Although judges may sentence DWI convicts to any form of punishment, from community service up through 3 years in prison, my job is to help people turn their lives around after a DWI charge, and to present as many mitigators as we can lawfully assemble.

ANOTHER SLEEPLESS NIGHT.

EARLY-MORNING, SUNDAY, FEBRUARY 16TH, 2020 2:21 AM. HUNTERSVILLE, NC.

He tossed and turned: another sleepless night. At least tonight he was in his own bed; his own wife sound asleep beside him. The night before he found himself on the cold concrete floor of a jail cell. And although he was under no illusion about how much worse his stay could have been, he was certainly in no hurry to return. But he still couldn’t sleep. He had taken half a sleeping pill earlier, but it did little good to quell his anxious mind; it hadn’t stopped racing since the moment he was hit with those blue lights in his rearview. Sometimes he wished he could just turn his brain off, he wished it had a physical switch. “Now powering down,” he thought. He probably should have taken the whole sleeping pill earlier, not just half.

She had been much more understanding than he expected. In fact, she knew that she was the one who was more likely to have an extra glass of chardonnay with the girls before she hopped behind the wheel. On top of that, she always had the kids in the back of her SUV. She truly felt bad for what he had been through and knew that it probably should have been her. She knew her husband – they’d been married eight and a half years at this point, and on the rare nights that he did have a few to drink, she never really saw him sloppy drunk. The children never saw their father drink, and perhaps that’s what scared the both of them the most: just how little it actually took to be charged and spend a night in jail. They both needed to really consider any drinking at all outside of their home anymore. “If it could happen to him…” she thought.

She absolutely had a ton of questions – almost all of which he lacked an answer to. Neither had been in trouble with the law before, and neither had their suburban friends. They didn’t associate with criminals – he coached little league on Tuesday nights! How could something like this happen to people like them? And, more importantly: what now? Toss. Turn. Repeat.

Both spent the majority of the day scouring the internet but felt like they hadn’t made much progress. Almost every attorney claimed, in some round-about way, that they were the best. How were they supposed to choose the right one? They had already discussed likely having to drain their savings, maybe even take out a second mortgage. The lawyers they did try and call didn’t answer their phones – it was the weekend. “How do people get these things reduced to lesser charges?” he wondered. Toss. Turn. Repeat.

“How am I going to get to work?” “Who will pick the kids up from Soccer on Thursdays? Who is going to take my coaching slot? I can’t take the bus to little league practice! And when can I get my driver’s license back? How expensive is this going to be? Do lawyers take payment plans?” Too bad there isn’t legal insurance the way there’s health insurance. Toss. Turn. Repeat.

As discussed, DWI sentencing is governed by the Fair Sentencing Act of 1981. This law established presumptive ranges for punishments, but also grants judges the discretion to deviate from these presumptive ranges if mitigating factors justify lessening the punishment, or if aggravating factors justify a more severe punishment. Although not quite the entire list of options available, the sentencing judge may employ any of the following tools at their disposal when sentencing a person convicted of DWI in North Carolina:

  • Jail time;

  • Prison Time (up to 36 months with no eligibility for parole);

  • Community Service;

  • Fines (up to $10,000);

  • Supervised Probation (regularly scheduled meetings with Probation Officer including random drug testing);

  • Unsupervised Probation (generally requires that the probationer not be charged and/or convicted of any new crimes);

  • Court Costs;

  • Payment of Attorney’s Fees (for people that requested a court-appointed attorney);

  • Driver License Suspension;

  • Driver License Permanent Revocation;

  • Substance Abuse Assessment with Licensed Professional;

  • Requirement that when the Defendant is finally eligible for a driver’s license, that he install an ignition interlock device in his vehicle for a certain period of years (and not operate any vehicle without an ignition interlock device);

  • Not use, possess, or control any illegal drug or controlled substance unless it has been prescribed to him and is in the original container;

  • Not knowingly associate with any known or previously convicted criminals or illegal drug users;

  • Undergo medical or psychiatric treatment and remain in a specified institution if required.
  • Substance Abuse Treatment;

  • Continuous Alcohol Monitor / Defendant must abstain from consuming any amount of alcohol whatsoever for up to 120 days;

  • Post-release supervision following prison sentence;

  • House Arrest;

  • Community Service Fee;

  • Participation in educational or vocational skills development program(s);

  • Remain within the county unless granted written permission to leave by the person’s probation officer;

  • Satisfy all child support obligations;

  • Pay probation supervision fees;

  • Remain gainfully employed and/or obtain gainful employment within a certain period of time;

  • Possess no firearm or other deadly weapon without written court permission / Surrender firearms to Court or Sheriff;

  • Notify the court if he is terminated or resigns from his employment;

  • Attend and complete any treatment program the court deems appropriate, including domestic abuser programs;

  • Submit to warrantless searches by any probation officer of the persons home, vehicle, and any premises upon which the person is present;

  • Submit to warrantless searches by any law enforcement officer;

  • Participate in a Project Safe Neighborhood if requested by probation officer.

Although District Court judges are provided a very large toolbox, chock-full of punishments they may employ to accomplish the goal of administering justice, rarely does the punishment grossly outweigh the severity of the crime. Not only are District Court Judges elected in North Carolina (and thus dependent the will of the voters, who overwhelmingly want to see equal and fair application of justice), but throwing the book at a 1st time offender fails to meet any of the goals of the sentencing process. There are four major goals to the sentencing process: retribution, rehabilitation, deterrence, and incapacitation.

RETRIBUTION. Retribution refers to justice: people who break the law deserve to be punished. Even though Impaired Driving is a Malum Prohibitum Offense (wrong because it is prohibited, or unlawful only by virtue of statute), and not a Malum In Se offense (wrong/evil in and of itself), our society simply cannot tolerate the loss of life that would result from the unfettered lawlessness necessarily resulting from everyone across the state freely driving while completely out-of-their-minds. People would be killed frequently – many times every single day – just on the highways of Mecklenburg County. And if the justice system failed to act, people would likely take the law into their own hands after a family member, friend, or child were killed by an impaired driver without any punishment whatsoever. We’d have revenge killings in restaurants, in the streets, from moving cars, and probably even in churches. Society simply must outlaw and punish the crime of driving while impaired, the only argument you could possibly make is where to draw the line: is a .08% BAC impaired? .10% I believe the larger argument over the course of the next decade will involve defining drug impairment in Drug-DWI cases.

DETERRENCE, INCAPACITATION & REHABILITATION. The other three goals are utilitarian, emphasizing methods to protect the public. They differ, however, in the mechanism expected to provide public safety. Deterrence emphasizes the onerousness of punishment; offenders are deterred from committing crimes because of a rational calculation that the cost of punishment is too great. The punishment is so repugnant that neither the punished offender (specific deterrence) nor others (general deterrence) commit crimes in the future. Incapacitation deprives people of the capacity to commit crimes because they are physically detained in prison. Rehabilitation attempts to modify offenders’ behavior and thinking so they do not continue to commit crimes. Although sentences frequently address several of these goals in practice, the emphasis on which goal is the highest priority has changed dramatically over time.
HOW MUCH IS YOUR FUTURE WORTH? Never bargain shop when it comes to your future, your family, or your livelihood! When looking for a DWI attorney, you should have only one hiring criteria on your mind: who can get the job done. And although I would never tell you who to hire or not hire, if you’re able to persuade an attorney to lower his fee for you – who else do you think can persuade that same attorney? How well do you believe they’ll fight for you?

HOW FLETCHER LEGAL APPROACHES EVERY SINGLE DWI CASE (AND WHAT WE CAN DO FOR YOU)

Thirteen principals guide the way we help our clients that have been charged with DWI. Here is the most important part: THE FIRST STEP MUST BE COMPLETED BY YOU, EVERYTHING ELSE IS ON US! TO GET STARTED, JUST DO ONE OF THE FOLLOWING:

  1. EMAIL derek@fletcher-legal.com. In the subject line, write: PC, or NEW CASE, or NEW CLIENT, or I NEED HELP, or something that will get my attention! Tell me how to reach you, and I promise I’ll get in touch as soon as I can; OR
  2. TEXT ME at (704) 747-7262. Again, it doesn’t really matter what you say, any of the examples above work just fine. Tell me what’s going on, and I promise I’ll get in touch as soon as I can; OR
  3. VIDEOCALL us by entering our virtual lobby using any mobile device, laptop, or desktop computer with a webcam attached. No software to download, no accounts to create. Simply navigate to attorneyvideocall.com, type in your first name, and one of our professionals will be with you shortly!

Now that we’ve got that out of the way, let’s discuss the approach that Fletcher Legal uses in each and every DWI case, and how we can put our skills to work for you. In this day in age – everybody needs “their lawyer;” the guy you call when things hit the fan. Your trusted advisor, the guy that helps you out of trouble, the guy who’s always available in an emergency. I want to be that person for you, and I will only ask once for the opportunity to earn your loyalty. Here’s how we handle cases once we’re retained:

LATER THAT SAME NIGHT

SEVERAL HOURS LATER, THAT SAME NIGHT.

“I need a good lawyer,” he actually muttered out loud. She was so deep in R.E.M. sleep, she never head what he has said. The thought began small, but the more he thought about it, they more it began to take hold and grow larger with each passing moment. “I need a good lawyer,” he told himself again. “No – I need the best lawyer! That’s what people do in these situations; they get good lawyers.” He kept repeating the phrase like a mantra, over and over. But where does one find a good lawyer? They each say that they’re the best, but how do you find out if they’re the right one before dropping thousands of dollars and hiring them? Toss. Turn. Repeat.

“I need a great lawyer,” he whispered aloud again. “I need the best lawyer.”

The idea turned into a mantra. The mantra turned into a belief. The belief turned into action. This week, he would do whatever he had to in order to find the best lawyer he could; he had too much to lose. He couldn’t imagine losing everything they’d built together, and spending any sort of significant time in jail would cause him to lose it all. The career, then the house, then the car, the wife, the kids…Toss. Turn. Repeat.

And it was that thought – that mantra – that belief, that finally brought him some small peace of mind. He had no idea what time it was now, and it really didn’t matter. He needed to plan the lie for his boss in order to make his court appearance; what would happen that day? More than anything, the fear of all the unknowns terrified him. “I will get the best lawyer I can find,” he returned to his mantra. It was the only thing that had brought any relief at all.

For the next few hours, time stood still, with nothing between him and his thoughts. At some point, he wasn’t sure if he had fallen asleep, or just closed his eyes for long enough that he was able to turn off his brain. It worked! But it certainly didn’t last long; groggy and completely exhausted, he woke when the smell of cooked bacon wafted up the stairs and seemed into his nostrels. Was this life back to normal, or just the great big cover-up? As he tied his robe, he glanced in the mirror and said it one more time: “I will hire the best lawyer I can find.”

HOW TO RETAIN A DWI ATTORNEY

1. You contact our office after being charged with a crime. We schedule a free case evaluation as soon as possible to review any documents in your possession, give you our most honest assessment of your case, and determine whether we are a good fit to work together. We consider our client an integral member of the team, and their assistance and active involvement often yields the very best results.

2. At the end of your free case assessment, we determine whether you are someone we want to work with; you determine whether we are the people that you’d like to work with. Assuming that both parties believe we can achieve good results, we provide a fee quote for the cost of representation. We remove the fear of the unknown by explaining everything about your case in plain english, and answering as many questions as you may have. We keep in communication throughout representation by sharing all discovered evidence and documents with you through shared cloud storage.

 A. Fletcher legal is a firm believer in “Flat-rate” billing. This means we will provide you with 1 number, that will cover the entire cost of representation. We will not ask for more money later. We do not believe in billing clients by the hour – this has the effect of attorneys billing clients for phone calls and emails. Our clients are never ever charged for speaking with us. And we believe clients have a right to know – as much as possible – the entire cost of representation, before deciding whether to hire us.

B. We are not the cheapest attorneys in our market; neither are we the most expensive. We base our fees on a variety of factors, including but not limited to the following:

i. The unmatched level of personal service we dedicate to each and every client. We accomplish this by providing every client with attorney fletcher’s personal cell phone number, for use in legal emergencies. I cannot count how many 2am phone calls I’ve received, and how many sunday mornings I have spent bailing clients out of jail. Representation doesn’t just end with this case; I am your attorney from now on, and in order to deliver this level of service, I must severely restrict accepting other cases.

ii. The complexity of the issues involved in your particular case. In dwi refusal cases, it may be necessary to contest the refusal through a dmv hearing. In an involuntary blood draw case, a suppression hearing may be needed. The more complex the case, the more time and research is required to properly handle the matter to the best of our abilities.

iii. The more serious the crime, the more expensive the fees. The reason for this is because I personally lose sleep thinking about a client who may spend the next ten years in prison. Once I am retained, this is no longer your problem, it’s mine. Very serious problems take enormous emotional tolls, and enormous amounts of time preparing.

iv. The liklihood of whether the case will proceed to trial, or whether the case is likely to settle/plead. Oftentimes in criminal cases where the liklihood of trial is unclear in the beginning, we will set two fees: the first is the minimum rate that will be required in all cases. The second fee is an additional amount that will only be required should the client decide to pursue the case at trial. I never decide to try a case: my job is to provide all the facts to my client, and allow them to make the decision about whether to try a case. Here, it would look something like this: “$3500 flat rate with an additional $1500 due should the matter proceed to trial.”

v. Whether legal fees will be paid up front, or whether alternative payment arrangements will be required. If payment plan(s) are required, how long will payments continue; how much work will it require from me to track and make sure all payments are made as agreed upon. Paying all fees up front will result in lower fee rates.

vi. The estimated amount of time needed to research case and statutory law, draft motions and memorandum, meet, write, consult, or discuss case specifics with either opposing counsel or an unrepresented, opposing party. Having practiced law for more than 10 years, I am able to rather accurately predict the time required for certain legal matters, and what each case will require from me.

vii. I do not care at all what other attorneys are charging for similiar or the same service. I do not compare myself against other attorneys, because the only person that an fairly compete against me is me. I compare myself only to myself, I know what I must put into a case to reach a successful resolution, and if a client is price-shopping for the lowest cost attorney, then we are almost certainly not good fits for one another.

viii. I agree that I will provide all services as described in the written fee agreement between myself and my client; I ask that all clients do exactly the same. In other words, I expect my clients to fulfill each and every obligation, promise, and responsibility that they make to me. Just as I will never ask my client for additional funds, I expect my client to live up to every promise made in our fee agreement.

ix. The amount of work and energy you are likely to require as a client. Having done this for 10 years, I am a pretty good judge of character, and can usually identify clients that will require much more of my time and attention that others; fee rates reflect this reality as much as possible.

X. Any other factors that require either more or less work, more time or less time, more resources or less resources, more expenses and costs or less expenses and costs, as seen from the prospective of attorney fletcher and fletcher legal may be considered in fee setting. Late fees and penalties for failures to fulfill your contractual obligations concerning payment agreements will be expressly defined either in the fee agreement itself, or within an attached addendum to the fee agreement. Client agrees that funds paid will first be applied to late penalties and fees, then to past due balances, then to current fees due.

4. Once retained, we draft a packet of new client documents, which includes information about the features & benefits offered by our firm, my personal cell phone number for legal emergencies and questions, along with a detailed client questionnaire and fee agreement. Once you return the signed and completed paperwork, along with the initial retainer payment, we are officially “Hired!” once hired, this case is no longer your problem – it is my problem. You’ve done everything you can do at that point.

5. Each case receives an independant investigation. We begin the search for evidence right away, and our first stop is usually at the courthouse where the case has been filed. Here, we pull the court file (or “Shuck), and scan all documents contained therein using our “Mobile office.” we convert these documents into pdf’s, and share them with you so that everyone has access to the same discovery. Each investigation is different because each case is different, but our broadest goal is always trying to identify, locate, and collect as much evidence about the case as possible.

6. We ask clients to write down everything they remember about the offense, including everything that they don’t remember, and/or everything they have been told. My goal is to be the foremost expert on the facts of your case. I achieve this goal only with your help. Once your narrative is drafted, we turn this into a timeline, and a witness list. Over the course of the case, these documents are constantly being expanded and refined. After we gather the facts, we assemble the most accurate timeline possible. From there, we research points of law to determine whether we can fight these in court, and their likelihood of success.

7. We assist clients with locating the correct substance abuse assessment facilities and completing recommended treatment. All facilities are not created equal. We maintain a list of preferred treatment providers, which include agencies we’ve had good experiences with in the past and/or agencies we have existing relationships with. We trust these agencies to conduct a fair assessment, rather than one recommending the maximum treatment length for their own selfish financial benefit.

8. Whenever possible, we help clients get their driver license back after the initial 30 day revoation. We do this as quickly as possible because we understand exactly how important it is that you are able to drive. If pleading guilty ends up being our best option, or if we have a questionable case where we may lose, we have a limited driving privilege ready to go for the judge to sign on the day of sentencing. We ask the court to not order community service fees when our clients have completed community service prior to sententing. We ask courts to consider inpatient treatment to court the same as time spent on an active jail sentence. We set up clients for the best possible outcome by focusing on mitigating factors, helping clients accomplish them, and highlighting them to the court.

9. We appear at every court appearance on your behalf; whenever possible, I do not want you to have to appear. Only if I need you to be present will I ask you to appear with me. We show up early to court; we do not make our clients wait around for hours before we appear.

10. We thank our current and former clients by discounting their future legal invoices $100 for every case that they refer to us. There is no limit on the number of referrals that may be credited on your account; any new client who hires my law firm and drops your name as the referral source qualifies.

11. We have many ways of communicating with new clients; we are available on nights, weekends, holidays, and during legal emergencies. We make sure you have attorney fletcher’s personal cell number for legal emergencies, and if you are charged with another offense. Using our “Portable office,” we scan all relevant court files, assemble these documents into PDF’s, and upload them to our personal and secure cloud storage so that our clients have equal access to all discovery.

12. We research each and every possible legal argument, until we have a clear understanding of how likely each is to succeed. If we can fight the law, we fight. If we cannot fight the law, we fight for the best possible deal.

13. We never ever take our clients for granted. Ever! We sincerely appreciate the trust and loyalty they place in us to resolve the most important issues in their lives; we seek to develop deep and meaningful relationships as trusted advisors, and strive to prove our worth at every single opportunity.

HOW A LAWYER CAN HELP WITH YOUR CRIMINAL CHARGE(S)

SENTENCING. Once you’re past the guilt or innocence phase, and the judge is about to enter judgment, your lawyer has an opportunity to recommend a particular sentence to the court. A good lawyer can clearly and convincingly articulate to the judge why you acted the way you did, what you have done to repair the damage you caused, and any other factors that mitigate your culpability in the offense. Defense Counsel’s primary duty, at this stage, is to seek (and persuade a judge) to sentence the defendant near the minimum sentence. This isn’t always easy; especially when a District Attorney adamantly demands he be sentenced to the max.
MITIGATING FACTORS. An experienced attorney will learn what remedial actions his client has taken pre-trial, and explain how they should mitigate the sentence. Has the defendant voluntarily entered substance abuse treatment after being charged with a DWI/DUI? If so, Counsel should mention that the client sought treatment voluntarily, whether the treatment was inpatient or outpatient, how long the program lasted, whether the client has a sponsor, how many AA or NA meetings a week they attend, and that they just picked up a 90 day chip.

Experienced lawyers know what facts will mitigate the damage at sentencing, and can be the difference between community service and active jail time.

WHERE WE GO: GEOGRAPHIC PRACTICE AREAS

Although we travel across the entire State of North Carolina – to each and every District and Superior Court – we are based in Charlotte. You could say that our home base consists of the following:

Serving: Mecklenburg, Union, Gaston, Cabarrus, Iredell, Rowan, Cleveland, Lincoln, Stanly, Davidson, Catawba, and Anson Counties, as well as Charlotte, Huntersville, Cornelius, Davidson, Lake Norman, Mooresville, Troutman, Statesville, Matthews, Mint Hill, Harrisburg, Weddington, Waxhaw, Indian Trail, Monroe, Wadesboro, Wingate, Polkton, Concord, Kannapolis, China Grove, Salisbury, Lexington, Thomasville, High Point, Denver, Lincolnton, Newton, Conover, Hickory, Belmont, Lowell, Mt. Holly, Lowesville, Gastonia, Dallas, Bessemer City, Kings Mountain, Shelby, Pineville, Midland, Locust, Albemarle, Rockingham, Asheville, Winston-Salem, Greensboro, Raleigh, and Wilmington.

FLETCHER LEGAL HELPS CLIENTS JUST LIKE YOU!

SERIOUS CASES REQUIRE SERIOUS REPRESENTATION. If you or someone you know has questions restoring their firearm rights, or to begin the process of restoring your gun rights now, call FLETCHER LEGAL at 704-747-7262, shoot that number a text, step into our virtual lobby for a video call, or book an appointment now for your free case evaluation. Fletcher Legal has helped clients restore North Carolina firearm rights, appeal from pistol purchase denials, and challenge concealed carry decisions. We conduct independent investigations in every case we take, which reduces denials, and ensures a smooth hearing.
VIRTUAL SERVICES REDUCE CLIENT EXPENSES. Schedule an appointment today to speak with Attorney Fletcher, either by video call, text message, or phone call. We offer flexible payment arrangements, independent investigations, and 24 x 7 emergency services. Book an appointment online now to begin building your defense.
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