If you are facing driving while impaired (DWI) charges in North Carolina, there are several potential defenses that an attorney may be able to use in order to either (i) seek a reduced charge or sentence, or (ii) help you avoid a conviction entirely. We recently discussed three of these potential defenses on our blog:
- Challenging a faulty breathalyzer test
- Challenging a faulty field sobriety test
- Challenging an unlawful search or seizure
This article covers three more potential defense strategies for individuals charged with DWI:
- Seeking to suppress irrelevant or prejudicial evidence
- Questioning the arresting officer
- Researching and presenting exculpatory evidence
Three Possible Defense Strategies for Individuals Charged with DWI in North Carolina
1. Suppress Irrelevant or Prejudicial Evidence
As a general rule, prosecutors can only present “relevant” evidence when seeking to obtain a conviction at trial. While this may seem like a straightforward issue, it often isn’t, and in many cases there can be a serious question as to whether the State should or should not be able to use its evidence against you.
There is a similar issue regarding evidence that is considered unfairly “prejudicial.” In short, even relevant evidence can – and should – be suppressed if it unfairly suggests an improper basis for returning a guilty verdict. Depending on the circumstances involved in a particular case, examples of irrelevant or unfairly prejudicial evidence may include:
- Evidence of alcoholism
- Evidence of past DWI convictions
2. Question the Arresting Officer
As the defendant in a DWI case, you have the right to question the officer who arrested you, and there are a number of important reasons to do so. In a typical DWI case, the arresting officer is the State’s key witness, and challenging the officer’s credibility or poking holes in the officer’s police report can be crucial to mounting a successful defense.
For example, some of the issues your attorney can address when questioning the arresting officer include:
- What are the officer’s levels of training, education and experience?
- What were the facts and circumstances that led the officer to make an arrest?
- What is the basis for the officer’s opinion that you were legally intoxicated?
- Which field sobriety tests did the officer use and how did he or she assess your performance?
- How were your breath or blood test results validated?
3. Research and Present Exculpatory Evidence
Finally, in many cases, there will be evidence that DWI defendants can use in their favor. If there is evidence demonstrating that you should not be found guilty of DWI, your attorney may be able to use this “exculpatory evidence” to overcome any damaging evidence that the prosecutor presents in court.
Additionally, prosecutors owe a duty to disclose exculpatory evidence in their possession to the defendant. If the prosecutor in your case fails to disclose exculpatory evidence (commonly known as a “Brady violation”), this can be grounds to seek dismissal of your DWI.
Are You Facing DWI Charges in Raleigh? Schedule a Consultation Today
Cheshire Parker Schneider & Bryan, PLLC’s defense lawyers provide experienced representation for individuals charged with DWI in the Raleigh area. For more information about the defenses you may have available, call a Raleigh DWI lawyer today at (919) 833-3114 or contact us online to schedule a consultation.
Each quarter, the North Carolina State Bar (“NC Bar”) updates its website to include summaries and links to the most-recent disciplinary actions involving North Carolina-barred attorneys. These updates should be of interest to all practicing attorneys in North Carolina, not only as a reminder of the wide range of unprofessional (or illegal) conduct that can lead to discipline, but also for purposes of analyzing the varying degrees of discipline that the NC Bar can impose depending upon the specific circumstances involved.
For example, as you’ll see below, three of the four most-recent disbarments were the result of misappropriation of trust funds – in amounts ranging from $3,000 to over $110,000. However, another attorney who failed to maintain and properly disburse trust funds to clients received only a three-year stayed suspension. Needless to say, the NC Bar takes all allegations of unprofessional conduct extremely seriously, and any attorney who receives a Letter of Notice from the bar must take timely and appropriate action in order to protect his or her license.
Three Attorneys Disbarred in June and July for Misappropriating Client Funds
In unrelated disciplinary matters, three North Carolina attorneys lost their licenses this summer for misappropriating funds from their client trust accounts. While two of the disciplinary actions involved misappropriation of funds “totaling at least $100,000,” in the third action the attorney consented to disbarment after admitting to misappropriation of just over $3,000.
Suspensions and Stayed Suspensions
An attorney who had been licensed in North Carolina for nearly 20 years consented to a five-year suspension for mismanaging his client trust account (including unintentionally misappropriating funds) and “neglect[ing] multiple clients.” The specific findings of fact in the Consent Order included:
- Allowing the attorney’s office manager to transfer funds from his client trust account to his operating and personal accounts without oversight;
- Failing to track clients’ trust deposits and disbursing trust funds without maintaining records;
- Disbursing more funds to certain clients than the attorney held in trust for those clients; and,
- Failing to pay court costs out of clients’ trust deposits and failing to make appearances on clients’ behalves.
Following a June hearing before the NC Bar’s Disciplinary Hearing Commission (DHC), a criminal attorney received a three-year license suspension as a result of, among other things: deposing multiple State’s witnesses without notifying the District Attorney’s Office, attempting to misrepresent a client’s spouse as his “assistant” in order to conduct an after-hours penitentiary visit, and obtaining a fraudulent notarization on a Power of Attorney he obtained from one of his clients.
Finally, an attorney licensed for decades received a three-year stayed suspension (subject to compliance with various conditions) following a DHC hearing in April during which it was found that the attorney had, among other things:
- Failed to account for clients’ trust deposits and disbursements;
- Deposited personal funds into her client trust account and then used trust funds for personal expenditures; and
- Used a modest amount of at least one client’s trust deposit for personal purposes.
Of note, the DHC acknowledged that the attorney (i) suffered from a medical condition which caused her to wind down her practice, and (ii) had closed her client trust account subsequent to the violations.
Speak with a Raleigh Professional License Defense Attorney at Cheshire Parker Schneider & Bryan, PLLC
Cheshire Parker Schneider & Bryan, PLLC’s professional ethics and licensing defense section represents attorneys facing disciplinary action throughout North Carolina. If you need to speak with an attorney about protecting your license, call (919) 833-3114 or request a consultation online today.
If you have received a Letter of Notice from the Grievance Committee of the North Carolina State Bar, you need to take it seriously. Even if you believe that the allegations contained in the letter are unfounded, you have a professional obligation to respond, and failure to respond is itself grounds for discipline under the Rules of Professional Conduct (RPC).
However, absent a failure to respond, receiving a Letter of Notice is not necessarily a precursor to facing discipline from the Grievance Committee or a referral to the Disciplinary Hearing Commission (DHC). Many client grievances are unfounded, and in many cases attorneys will have sound defenses to what would otherwise be discipline-worthy allegations.
What is a Letter of Notice?
A Letter of Notice is exactly what it says it is – a letter that puts you on notice that a client has filed a grievance against you. It does not reflect the position of the Grievance Committee (other than its determination that the allegations, if proven, would constitute a violation of the RPC), and it does not mean that any disciplinary action is being taken against you. The Letter of Notice, essentially, is your opportunity to respond to the allegations before they go to the Grievance Committee for a determination of misconduct.
Responding to a Letter of Notice
You have fifteen days from the date of service to respond to a Letter of Notice. The response should contain, “a full and fair disclosure of all facts and circumstances pertaining to the alleged misconduct,” including copies of all relevant documents from the client’s file. If you need more than fifteen days (as is typically the case), you can request an extension, and as noted on the State Bar’s website, “extensions of time to respond are regularly granted.”
You are, of course, entitled to representation throughout the disciplinary process, and it will typically be in your best interests to hire an attorney who regularly practices in professional license defense. The more apt your response to the Letter of Notice, the greater your chances of securing a favorable resolution prior to full consideration by the Grievance Committee. If your response is incomplete, appears evasive, or raises more questions than it answers, the Grievance Committee is more likely to find probable cause to consider the grievance – and possibly open an investigation.
Potential Discipline Following a Letter of Notice
Upon considering a client’s grievance and the attorney’s response, the Grievance Committee can take a number of different actions. These include:
- Dismissal – If no discipline is warranted, the Grievance Committee can either dismiss the grievance entirely, or dismiss the grievance with a Letter of Caution or Letter of Warning. These letters identify unprofessional practices and technical or inadvertent violations of the RPC, but do not constitute professional discipline.
- Admonition – An admonition is the least-severe form of professional discipline. Admonitions remain private, though they can be considered in any additional future disciplinary matters.
- Reprimand and Censure – More severe than an admonition though still falling short of suspension or disbarment, reprimands and censures are reported to the state and federal courts and published in print (in the State Bar’s Journal magazine) and online (on the State Bar’s website).
- Referral to the Disciplinary Hearing Commission – If the Grievance Committee concludes that there is probable cause to issue discipline greater than reprimand and censure, it will refer the case to the Disciplinary Hearing Commission. DHC hearings can result in suspension and disbarment.
Contact a Raleigh Professional License Defense Attorney at Cheshire Parker Schneider & Bryan, PLLC
The attorneys in our professional ethics and licensing defense section regularly represent other lawyers in North Carolina who have received Letters of Notice from the State Bar’s Grievance Committee. To discuss your response in confidence, call (919) 833-3114 or contact us online today.
If you were convicted at trial, this does not necessarily mean that your case is over. You could have grounds to file an appeal; and, if you do, it is important that you hire a lawyer to help you enforce your legal and Constitutional rights.
But, this raises an important question: Should you keep going with your trial counsel, or should you hire a new lawyer for your criminal appeal?
Why You May Want to Retain Your Trial Counsel
In certain circumstances, it will make the most sense for the lawyer who represented you at trial to represent you during your appeal. For example, this may be your best option if:
- Your grounds for appeal are limited. One of the more-common grounds for appeal in a criminal case is to assert that you received ineffective assistance of counsel. If you are claiming that your trial counsel was ineffective, you certainly will not want him or her to represent you during your appeal. On the other hand, if your grounds for appeal are limited to judicial errors (such as allowing the prosecution to use inadmissible evidence), then it may make sense to stick with your trial lawyer.
- Your trial lawyer has appellate experience. Of course, you want to make sure that your trial lawyer has appellate experience. Some lawyers only handle trials, and if your trial lawyer has never represented a client on appeal, it may be in your best interests to hire a new attorney.
- The facts of your case are complicated. If your trial lasted weeks and weeks and followed months and months of detailed preparation, it is going to take some time for a new lawyer to get up to speed. On the other hand, your trial lawyer will already be intimately familiar with the facts and may be better able to hit the ground running on your appeal.
Why You May Want to Hire a New Lawyer for Your Appeal
However, in some cases, hiring a new appellate lawyer will be your best (and possibly your only) option. Some of the reasons to seek new representation for your criminal appeal include:
- Your trial lawyer was ineffective. As we noted above, if you are entitled to a new trial because you received ineffective assistance of counsel, you will need to hire a new lawyer for your appeal.
- You want a fresh perspective on your case. In many cases, it can be beneficial to have a new lawyer take a look at your case. While your trial lawyer may have been focused on narrowing down the issues in order to build a cohesive defense, identifying your grounds for appeal requires a broader perspective. An attorney who has extensive appellate experience will be trained to spot the issues that can justify arguing for a new trial.
- There are multiple levels of appeal. Finally, your first appeal will not necessarily be your last. If you lose your initial appeal, you may be able to challenge your conviction again at a higher-level court. If you need to seek review in the North Carolina Supreme Court or the Supreme Court of the United States, this will involve special rules and procedures that typically require the knowledge of an experienced appellate attorney.
Discuss Your Case With a Raleigh Criminal Appeal Attorney Today
If you were convicted of a crime in North Carolina and would like more information about your right to appeal, we encourage you to contact us for a consultation. We can fully explore your grounds for appeal, and we can help you decide whether it makes sense to retain your trial counsel or hire a new appellate attorney. To discuss your case in confidence with an appeals lawyer at our offices in Raleigh, NC, please call (919) 833-3114 or request an appointment online today.