NC LAW TALK – EPISODE 1 – DUI DWI in North Carolina

Thank you for watching NC LAW TALK – Episode 1 – DUI DWI in North Carolina.  If you have topics of interest, feel free to email Bill Powers at Bill@PowMac.com.  For other areas of interest, check out www.PowersMcCartan.com  for NC LAW TALK.

DUI DWI in North Carolina

TRANSCRIPT OF VIDEO:

Mike: Welcome to another edition of NC Law Talk. I’m civil litigation attorney Mike Daisley with the Law Firm of Daisley Law VLLC, and with me is Bill Powers, Managing Partner of Powers Law Firm PA in Charlotte.
Bill and I share the same law office, in other words, share the same roof and we have practices that both focus on some of the harms done by drunk driving. Bill is a criminal defense lawyer defending people who have been accused of drunk driving. I tend to help families who have been harmed by some of the drivers who have been driving drunk and caused problems.
What we’re going to be doing in today’s edition of Law Talk is I’m going to be mainly picking a lot of Bill’s brain to talk about what he does in terms of criminal defense work, and how folks who find themselves in that position can equip themselves better, what to look for in attorneys that have that type of practice, what to look out for in terms of things that you see that people ought to be aware of if they get in that kind of position, how trials go in that regard, what people might expect when they see the blue light behind them.
Bill: Right.
Mike: And they know that maybe they might have had one or two too many.
Bill: Right. Well, the interesting aspect of DWI case, first you start off on kind of a larger scale perspective where normally it’s the next morning, sometimes people call us the night of, we do try to talk to them if at all possible. Normally we get a call the next morning either from the person that’s been charged or a family member and they’re trying to get some big picture type of perspective so we’re looking at things like, and we want to ask questions involving prior involvement with the court system, prior traffic involvement whether it’s a DWI or some other offense, we want to know if there were kids in the car, whether there was a wreck, serious bodily injury.
As I describe to people, we don’t mind eating an elephant, we just need to know what size elephant it is to start with.
Mike: In order to be able to give somebody, I mean, you can’t, if it’s at all like m on the civil side, people ask me, “Well, gee, what’s my claim worth? What will I get for my claim?” There’s no way you can answer that or begin to answer that as soon as they walk in the door. There’s so many factors involved but you want to be able to give your defendants or potential defendants some idea of what they might be in for.
Bill: Right.
Mike: If somebody comes clean with a clean record, for instance, you might be able to protect one thing as opposed to somebody saying, “Gee, I just got out of a bad situation a year ago.” Those will be different factors. What sort of factors do you look like? Is speeding worse than reckless driving, or are there certain grades that people look at to judge?
Bill: There are and I think it’s important to recognize, and most people get this now, all impaired driving cases are serious. Some carry much more dire consequences than just even a garden variety. That doesn’t mean that you discount the importance of a first offense DWI. In fact, quite the contrary. I see people really not taking things as seriously as they should on a first offense and then they get hammered and they don’t realize, hammered in the sense by the system or in life, and they think, “Gosh, I wish I had taken a little bit more care.”
Now there are four general categories. There’s actually a bunch of these things now but we refer to them as grossly aggravating factors. Grossly meaning really, really bad. Aggravating meaning making something worse in factors. We have a lot of materials on the web and you can look at my quick references guide book.
Mike: That website I think would be powmac.com.
Bill: Actually, we’ve just changed it.
Mike: Seriously?
Bill: It’s now powersmccartan.com. Powmac still works but it’s easier just to remember our firm name so it’s powersmccartan.com.
Mike: Got you.
Bill: The big four, again these are a lot of permutations and combinations, but the big four categories are — and I always use my fingers because it’s easier to describe — have you had a prior DWI within a seven year window? Were you involved in a wreck where there was-
Mike: Now was that convicted of DWI or do they keep track of–
Bill: Yeah, conviction. There are a lot of sub-issues here because people say, “Well, I got a reckless in New York. Is that the same?” Or, “I pleaded guilty but they told me I wasn’t going to jail.” They don’t recognize it was actually a conviction as part of that not taking the first ones as seriously. So, if it’s a conviction, whether it’s in North Carolina or any other state and it has a similar or same elements, and that’s a complicated aspect of a regular DWI here or what would be impaired driving here, we look at that — seven years.
Second thing we look at is were you involved in a wreck with serious bodily injury? Whatever that means; there’s not really a good statutory definition. It’s like the old saying ‘I’ll know it when I see it.’ There are some general guidelines but it’s not as delineated as we would like sometimes.
The third is whether or not you had a child under the age of 18 in the vehicle at the time.
Mike: That’s a fairly new nuance, isn’t it?
Bill: It’s newer in the sense that it used to be 16 and then they raised it to 18, but they also added people of a certain mental acuity, maybe someone that has some developmental issues and maybe they may be 40 years old but developmentally they’re under an 18 year old. The logic is is that type of person, whether they’re actually under the age of 18 or of some level of suppressed, for whatever reason, having a lower mental IQ based on age. They’re not capable of discerning whether it’s safe to ride in the vehicle or not. They’re not really an adult in the truest sense of the word.
Then fourth is was your license revoked at this time? I call it the “Hook ’em Horns” because you’ve got the first DWI but was your license revoked at this time due to that other impaired driving type of offense? It’s complicated, and each one of these has different factors. What a lot of people don’t realize, the most serious of them, what I call the head of the class or the front of the room, is that child in the car. Because that bumps you up automatically to a level one DWI and it mandates by statute minimum of 30 days in school.
Mike: Wow!
Bill: So first offense, no prior history, you worked in Calcutta in a mission field for 15 years, you have a kid in the car and you get a convicted driving while impaired — you know you’re doing 30 days active unless you can somehow get an alternative or get a judge to agree to an inpatient treatment or something of that nature. It’s really complicated and it’s really serious now.
Mike: That’s why it really does behoove a defendant to get a professional in this regard. The tendency is, even for those who just make that one mistake, to say, “Well, I’ll go and I’ll explain to the DA and I’ll explain to the judge that I just made this one mistake,” and while they may have the best motives for that and they may be a very good person. I mean, these people are good people, but nonetheless, the judges’ hands are tied with some of the restrictive laws.
Bill: Right.
Mike: So if you don’t have a competent professional helping you and standing beside you in that regard, you can be in some dangerous water.
Bill: Right. I try to explain to people as an attorney there’s a common, for lack of a better term, conflation, maybe it’s confusing to truisms to come to the wrong conclusion. There’s this conflation that they believe that the system is equitable, life is equitable, things are meant to work out, when the truth of the matter is that is relevant to maybe sentencing. I regularly have people, just yesterday someone said, “Well, I’ve never been in trouble before, and I’ve got two jobs and I take care of my child.”
I’m like, “Listen, I totally and completely empathize with you. Having said that, that is not at all taken into consideration as to whether you’re guilty.”
Our job, and I say it’s like I’m the captain of the ship, the first role is to try to avoid the two torpedoes, that are the two minnows that are coming at you, and that’s guilt or innocence. Meaning, do they have a legitimate basis to stop you or arrest you? Are you going to be convicted?
The second part of being the captain, if you can’t avoid the torpedoes, is making sure the client doesn’t go down with the ship. Those are the life rafts or the life preserver issues so they’re very relevant in determining how you’re punished.
The legal side is whether you’re punished and so it’s difficult because clients think, “Gosh, isn’t it on some type of deferral program? I’ve never been in trouble before.” Unfortunately, I say “no.” It’s not me saying “no.” It’s the system.
Mike: To avoid the guilt or innocence decision, again it may play somewhat in the sentencing, but if they come or they go before the court unrepresented without checking as to whether the police have the right to stop you in the first place, and then once they did, if you indeed meet the qualifications under the statute for guilt or innocence, as you say, those are the two things that you look at. Whether they’re a good person and hold down a job may affect their sentence but not necessarily their guilt or innocence.
Bill: Right. I think there’s this misconception that there’s nothing you can do. It’s throwing out the baby with the bath water. We tell people how serious it is.
Mike: That’s the other extreme.
Bill: Right, right.
Mike: They come in thinking, “Oh, it’s no big deal. I’m a good person. They’ll see me for that. There’s no problem.” And the other is, “Oh gosh, there’s nothing they can do.”
Bill: Right. Both of those are not true, meaning there are defenses available in DWIs. That doesn’t mean they’re easy to win. It doesn’t mean that there’s any kind of promised result. Having said that, they’re very complicated. DWI cases, whether it’s a civil case or a criminal case, that’s why we do this because there’s an inseparable nexus.
Mike: Several things that you said, talking about a young person in the car, somebody getting in the car knowing that the driver was drunk or not having the competency, reflects very much on the civil side. If somebody’s a passenger and gets harmed by a drunk driver but that person had reason to know that person was drunk, they may be bad out of luck in North Carolina. That’s just on the civil side, but go ahead.
Bill: I guess my point would be overall that because of the consequences being so dire, and they are, you have to take your time to review, to do your homework. They are a, they being DWI, impaired driving cases are a perfect storm of science, law, technology, and consequences. Meaning they follow you around and they follow you around for a long time.
Mike: What’s interesting is having my practice where I am, in your office, my office being part of your office down the hallway from a lot of your staff that does such good work, is to hear some of the surveillance tapes that you get as part of your defense. You’re entitled to get those surveillance tapes from the squad car and listen to the interviews and going through those interviews almost frame by frame to look at that first element as to whether the police had, in fact, the right to stop you before even accusing you of a certain crime.
Bill: Right.
Mike: That’s something that you guys look at routinely.
Bill: Yes, we watch video everyday. We actually have law clerks that sit in the office and we normally, when I say we watch video we watch it not just one person, two persons. Our team watches the video numerous times to see what we can see or not see. We’re finding more and more video is playing a huge role in these cases. I think that would be true on the civil side.
Mike: Absolutely.
Bill: I know it to be true on the civil side. In summary, don’t assume that everything is terrible. Don’t assume that everything is great. Call a lawyer. We offer a free confidential consultation. Call us, we’ll talk to you, we’ll explain the good, bad and the ugly. We’ll give you a better night’s sleep — I promise you that. We always, when someone talks to us, they always sleep better that night. Then we will sit down and methodically, scientifically, obsessively-compulsively go over your case and give you the good, bad and the ugly. The only way I know how to practice law.
What we do at our firm is try to treat people the way we would want to be treated, and analyze a case as if one of us had been arrested. I think in so doing, you make good decisions that are made out of good facts and research. So don’t assume on either side. Take your time. Realize it’s not cheap. You’re going to spend some money hiring a lawyer and we’ll give you an honest opinion.
Mike: I remember a phrase you mentioned years ago, when we just barely knew each other, but one thing you were saying about if you have a traffic ticket, whether you should handle a traffic ticket by yourself; it’s like having a cavity. You could fill it by yourself but it’s probably better to call a dentist that knows what he’s doing. Same sort of thing if you have a traffic ticket, particularly a DWI and particularly in North Carolina. Probably better to call somebody who knows what they’re doing.
Bill: Right.
Mike: This has been Mike Daisley for another edition of NC Law Talk, taking with Bill Powers of Powers Law Firm PA, and please join us again next time.
Bill: Thank you.