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Retrograde Extrapolation Inadmissible in DWI Case Without “Fit” to Facts

The North Carolina Court of Appeals today in State v. Babich (PDF) ruled that the admission of expert testimony on “retrograde extrapolation” in a DWI case was error, because the State offered no evidence that the defendant in that case was in a “post-absorptive” state that might render a retrograde extrapolation calculation relevant.  In Babich, the expert merely assumed that...

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No More Checkpoints in Durham!

Just four days after my blog post lamenting the use of presumptively unconstitutional roadblocks in Durham, Police Chief C.J. Davis announced that this intrusive and offensive tactic will no longer be used by the Durham police. According to Chief Davis, effective immediately as of March 5, 2017, “checkpoints in the city of Durham have been directed to cease and...

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DWI Checkpoints in Durham: The Long Arm of the Police State Right Here at Home

Law enforcement agencies in Durham County periodically set up “DWI Checking Stations,” at which every driver is stopped, detained, and investigated without suspicion of any crime.  Sound unconstitutional? Sound like an excerpt from a dystopian novel? Well, the United States Supreme Court of the United States held in City of Indianapolis v. Edmond (2000) that DUI/DWI checkpoints are presumptively unconstitutional.  The...

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DWI Arrests in Durham, 2015-2016

In the fiscal year 2015-2016, local police in Durham arrested and charged 902 individuals with Driving While Impaired and related charges, including Driving After Consuming While Under the Age of 21 (77 cases).  A substantial percentage of those charges occurred on Friday and Saturday nights, when individuals are often driving home after consuming alcohol and the local police are...

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Mitigating the Consequences of a Level 2 or Higher DWI

We often recommend challenging your DWI in either a pretrial suppression hearing, or at trial, or both.  But we also recommend being prepared in the event that you are convicted of Driving While Impaired.  In order to assess the potential consequences in your case, we’ll need to know certain details about your history and the unique facts of your...

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DWI Defense in Durham

If you’ve been charged with a DWI in Durham, you’ll need an experienced Durham DWI lawyer to fight for you, both in and out of court. Some factors to consider in choosing a lawyer to represent you through this process: Does the attorney actually take cases to trial, or just collect fees and recommend a guilty plea once the...

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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...

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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...

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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...

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Horizontal Gaze Nystagmus (HGN): More Junk Science

Bullet lead analysis, hair and fiber analysis, and now the Horizontal Gaze Nystagmus (HGN) test has been added to the growing list of police practices masquerading as “science,” that have now been discredited and revealed as little more than a hoax pulled on the general public by law enforcement as a tool to secure convictions in the absence of...

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