September 2016 - Hiltzheimer Law Office, PLLC | Durham DWI Lawyer & Criminal Defense Attorney

by benSeptember 15, 2016 Uncategorized0 comments

Hiltzheimer Recognized as One of Three Best DWI Lawyers in Raleigh

Three Best Rated recently ranked attorney Benjamin Hiltzheimer as one of the three best DWI lawyers in Raleigh, North Carolina. Attorney Hiltzheimer has represented hundreds of individuals charged with DWIs in Raleigh, as well as Durham, Orange, Chatham, and Alamance Counties.

Mr. Hiltzheimer brings a decade of litigation experience to bear on each case he takes on, and takes it as a personal mission to leave no stone unturned in defending every client. Please visit Avvo for a sampling of reviews by prior clients of Mr. Hiltzheimer.

★★★

Raleigh/Durham DWI lawyer Ben Hiltzheimer is a criminal defense attorney in Durham, North Carolina, who represents individuals charged with DWIs and the full spectrum of misdemeanors and felonies. Contact us for a free, confidential consultation and case evaluation at (919) 899-9404.

by benSeptember 12, 2016 blog, dwi, news0 comments

Implied Consent Rights Only Fully Apply if You Speak English

For the English-speaking public, North Carolina state law requires that law enforcement officers read certain rights to DWI suspects orally, and provide those same rights in writing, before the individual is required to decide whether to blow into a breathalyzer (Intox EC/IR II in Wake County) or submit to a blood draw.

North Carolina General Statute § 20-16.2 is explicit on this point:

Before any type of chemical analysis is administered the person charged shall be taken before a chemical analyst authorized to administer a test of a person’s breath or a law enforcement officer who is authorized to administer chemical analysis of the breath, who shall inform the person orally and also give the person a notice in writing that:

(1) You have been charged with an implied-consent offense. Under the implied-consent law, you can refuse any test, but your drivers license will be revoked for one year and could be revoked for a longer period of time under certain circumstances, and an officer can compel you to be tested under other laws.
(2) Repealed by Session Laws 2006-253, s. 15, effective December 1, 2006, and applicable to offenses committed on or after that date.
(3) The test results, or the fact of your refusal, will be admissible in evidence at trial.
(4) Your driving privilege will be revoked immediately for at least 30 days if you refuse any test or the test result is 0.08 or more, 0.04 or more if you were driving a commercial vehicle, or 0.01 or more if you are under the age of 21.
(5) After you are released, you may seek your own test in addition to this test.
(6) You may call an attorney for advice and select a witness to view the testing procedures remaining after the witness arrives, but the testing may not be delayed for these purposes longer than 30 minutes from the time you are notified of these rights. You must take the test at the end of 30 minutes even if you have not contacted an attorney or your witness has not arrived.

According to the NC Court of Appeals in State v. Martinez (2016) (PDF), however, if a defendant does not speak English, the oral advisement requirement is now considered to be met by the chemical analyst by providing notice in English, even in cases where it is uncontested that the defendant speaks no English. That holding calls into question the meaning of the word “inform,” which by any common sense interpretation requires the actual communication of information in a manner that causes it to be received — or at minimum causes a reasonable expectation that it has been received — by the listener.

In Martinez, it is important to note that the defendant was provided written notice of his implied consent rights in Spanish, which distinguishes that ruling from cases in which an individual speaks only a language other than English and is not advised either orally or in writing of those rights. Nonetheless, the ruling by the Court of Appeals appears to violate the clear language of the law with respect to the oral advisement requirement, which requires that any defendant charged with an impaired driving offense be informed of those rights. Would the Court of Appeals apply the same logic to a deaf defendant, who hears none of the words?

Also important in assessing the impact of Martinez on the legal landscape is the Court’s reliance on the statutory provision that unconscious individuals may be tested under the implied consent law without any advisement of those rights. While that provision had always been questionable from a Fourth Amendment perspective, it was the law of North Carolina until April of 2016. Following the Court of Appeals’ ruling in State v. Romano (2016) (PDF), however, that provision has now been struck down. That decision now potentially undermines the rationale of the Court of Appeals in Martinez, which is ripe for litigation in our courts.

★★★

by benSeptember 9, 2016 blog, dwi, news0 comments

Warrant Required for Blood Draw from Unconscious DWI Suspect

Until this year, North Carolina law permitted the taking of a blood sample from an unconscious DWI suspect under the apparent rationale that, by the simple fact of being rendered unconscious, we give up the fundamental right to be free from governmental intrusion into the contents of our own blood.

North Carolina General Statute § 20-16.2(b) still reads as follows:

(b) Unconscious Person May Be Tested. – If a law enforcement officer has reasonable grounds to believe that a person has committed an implied-consent offense, and the person is unconscious or otherwise in a condition that makes the person incapable of refusal, the law enforcement officer may direct the taking of a blood sample or may direct the administration of any other chemical analysis that may be effectively performed. In this instance the notification of rights set out in subsection (a) and the request required by subsection (c) are not necessary.

If you are conscious, on the other hand, the Constitution and its protections apply as you would expect. In other words, the government cannot jab your arm with a needle and extract a sample of your blood according to its whims unless you are properly advised of your rights, given an opportunity to exercise those rights, and then knowingly consent to provide a sample of your blood — OR, if the officer obtains a warrant for your blood after first establishing probable cause that some crime has been committed.

While that language remains in the statute, it has been overruled by the North Carolina Court of Appeals in State v. Romano (2016) (PDF). In that case, Mr. Romano was taken to a hospital after being taken into custody, for reasons that are less than clear from the court decision. After being taken to the hospital, Mr. Romano was rendered unconscious by medication administered to him against his will while in police custody, for the stated purpose of “calming him down.” After he was rendered unconscious, a nurse drew his blood under the supervision of one of the officers investigating the case. He did not provide consent (nor did he refuse), and no warrant was obtained. The record reflects that the magistrate’s office was “a couple of miles” from the hospital.

In a small victory for personal liberty, the Court of Appeals effectively struck down N.C.G.S. § 20-16.2(b). The Court cited the United States Supreme Court in Missouri v. McNeely (2013), acknowledging that the “invasion of bodily integrity implicates an individual’s ‘most personal and deep-rooted expectations of privacy.” The Court also noted, further quoting McNeely, that “‘the natural metabolization of alcohol in the bloodstream’ does not present a ‘per se exigency that justifies an exception to the Fourth Amendment’s warrant requirement for nonconsensual blood testing in all drunk-driving cases.'”

Ultimately the North Carolina Court of Appeals in Romano ruled that the Fourth Amendment applies with equal force to unconscious individuals suspected of Driving While Impaired, and that warrantless, nonconsensual blood draws from DWI suspects are unconstitutional unless the government can establish that a traditional exception to the Fourth Amendment warrant requirement applies in a given case.

★★★

by benSeptember 2, 2016 blog, dwi, news0 comments

Expert Foundation Still Required for HGN Testimony

According to the North Carolina Rules of Evidence, Rule 702, a witness properly qualified as an expert may only testify as to matters deemed to be outside of the domain of lay knowledge if the following three foundational criteria are met, under 702(a):

(1) The testimony is based upon sufficient facts or data,
(2) The testimony is the product of reliable principles and methods, AND
(3) The witness has applied the principles and methods reliably to the facts of the case.

It has long been agreed that the Horizontal Gaze Nystagmus test (otherwise known as HGN), which NC cops love to tout as the most reliable field sobriety test (!!) (but which the Supreme Court of Kansas deemed no more reliable than a Magic 8-Ball), requires expert credentials before testimony on the subject is admitted into evidence in a criminal DWI trial.

Some confusion had emerged in our trial courts, however, about the effect of the addition of subsection (a1) to Rule 702, which states:

A witness, qualified under subsection (a) of this section and with proper foundation, may give expert testimony solely on the issue of impairment and not on the issue of specific alcohol concentration level relating to the following:

(1) The results of a Horizontal Gaze Nystagmus (HGN) Test when the test is administered by a person who has successfully completed training in HGN.

Many of our trial judges interpreted the addition of (a1) to mean that if a cop had simply taken a class and gotten a certificate on HGN, then all foundational expert requirements were met by that simple fact under the law. What is not clear is why (a1) — which opens with a direct reference to the requirement that all foundational requirements of (a) be met first — was ever interpreted to mean that the foundational elements of subsection (a) were no longer relevant to the expert analysis relating to HGN.

It was a bizarre conclusion that was wholly disconnected from the plain language of the rule, but that pro-prosecution, anti-science interpretation of the rule had taken firm root in our trial courts, much to the dismay of those of us concerned with liberty and due process. Fortunately, our Court of Appeals in State v. Godwin (2016) came to the rescue to point out that the obvious plain language of the rule actually means what the obvious plain language says: namely, that when (a1) says that a witness must first be qualified under subsection (a), and that “proper foundation” must first be established, that those words means what those words mean.

And now, if applied correctly, it should be impossible for prosecutors to get expert testimony into evidence under any circumstances through cops alone, because they don’t have sufficient training in the underlying (fake) science of HGN to overcome the threshold that has been required by law for years.

★★★