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      While the Republican majority in the North Carolina Legislature might be composed of Tea Party bigots appealing to their Neanderthal base, they’re not completely stupid.  They know how to whip the ignorant mob (who would actually benefit from progressive policies) into an indignant frenzy – all the while keeping that mob poor, ignorant and self-destructive.  […]
    • HB2: WHAT A DISGRACE. March 29, 2016
      REPUBLICANS: YOUR MASTERS ARE NOT HAPPY WITH YOU BUT PHIL ROBERTSON LOVES YOU. In case you missed it, my fellow freedom-fighters, last Wednesday, the Tea Party leadership in the North Carolina Legislature called a special session of the General Assembly at a cost of about $42,000.00 of North Carolina tax-payer money.  What crisis, you may […]
    • Moral Monday Round Two February 27, 2016
      This week I was privileged to represent two defendants from the most recent Moral Monday arrests at the North Carolina General Assembly’s Rotunda (North Carolina’s Forum ,if you will) .  These two cases were the first cases that the State of North Carolina called for trial stemming from the 2015 Moral Monday demonstrations against the […]
      (THANKS TO THE LATE ANTONIN SCALIA FOR ACTUALLY PENNING SOME DECISIONS THAT WERE CORRECT.  R.I.P., I GUESS.) The following is based on actual events. Any resemblance to real persons, living or dead, is purely coincidental (How do these two disclaimers live with each other?) As we all know, there is no such thing as a […]
    • BLOOD TESTS January 26, 2016
      ADMISSIBILITY GOVERNING CHEMICAL ANALYSES; ADMISSIBILITY; EVIDENTIARY PROVISIONS; CONTROLLED DRINKING PROGRAMS A 1. 20-139.1(c1) ADMISSIBILITY A. NOTICE AND DEMAND. 1. WHEN THE STATE WANTS THE EVIDENCE INTRODUCED. NCGS 20-139.1(c1) is the notice and demand requirement that exists for the purpose of curing the confrontation clause problem facing the State whe […]
    • CHECKPOINTS ARE TERRIBLE. January 22, 2016
      IF YOU’RE A CRIMINAL DEFENSE LAWYER AND YOU’RE NOT CHALLENGING CHECKPOINTS, YOU’RE NOT A CRIMINAL DEFENSE LAWYER. 1. INTRODUCTION Challenging checkpoints requires, initially, a two-prong analysis: first, the checkpoint’s constitutionality on its face; and, second, its constitutionality as applied. The mistake that many defense lawyers make is looking at the […]
      NON-STATUTORY AGGRAVATING FACTORS There is no such thing as a non-statutory aggravating factor. I repeat: There is no such thing as a non-statutory aggravating factor. All together now: There is no such thing as a non-statutory aggravating factor. NCGS 20-179(d)(9): “Any other factor that aggravates the seriousness of the crime.” This is the catch-all under […]
    • HAPPY NEW (RELIGION-FREE)YEAR January 3, 2016
      My hopes for 2016, my loyal followers, are for a year in which secularism replaces sectarianism, sanity replaces stupidity, reason replaces religion. 2015 has been a fascinating year.  It has highlighted the blight on our country of senseless gun-violence.  While people are being killed daily by guns that are not for hunting and exist for […]
    • Congratulate Me On My New Website December 29, 2015
      http://www.theraleighcriminallawyer.com.  and while you’re at it, visit my DWI website, http://www.TheRaleighDWILawyer.com.
    • I HAVE TWO REVIEWS; THEY’RE BOTH BAD November 11, 2015
      Those pesky reviews. As the lawyer with the highest number of pending DWI cases in Wake County, North Carolina, I marvel at the fact that I have only two reviews.  How, I wonder to myself, do all these other lawyers have so many reviews?  Why, I ponder, do I seem to attract clients who don’t […]


While the Republican majority in the North Carolina Legislature might be composed of Tea Party bigots appealing to their Neanderthal base, they’re not completely stupid.  They know how to whip the ignorant mob (who would actually benefit from progressive policies) into an indignant frenzy – all the while keeping that mob poor, ignorant and self-destructive.  They know how to divide and conquer.  They know that fear and bigotry wrapped up in the American flag, the christian bible and  “protecting  our women and children” will churn out support from their hate-filled followers for their hate-filled laws.  And they know how to chip away at our rights – bit by bit – until we are eventually left with no rights.

Ever since that most unlikely of friends to the criminal defendant, Antonin Scalia, penned Crawford v. Washington in 1995, restoring the right of the accused to be confronted with and to cross-examine his accuser – which the C0nstitution unequivocally guarantees and which years of case-law had buried in a teeming cess-pit of court-found exceptions – our legislature has relentlessly fought to scale back that right.  And has done so stealthily and in a way that isn’t going to yield much attention.  The North Carolina government knows that an ignorant populace is easily manipulated; so when it enacts laws that curtail the rights of the criminal defendant, the ignorant won’t raise their voices in protest.  Only the law professors and other “liberal elites” will.  The educated populace will raise the alarm. And the Duck Dynasty Republican base will do its duty and shout the voice of alarm down, never to understand that it just fucked itself again.  If only they were as passionate about the parts of the Constitution that are not the second half of the Second Amendment.  But again, ignorance and all that.

The latest effort (and success) by the Republican-dominated State legislature to deny the accused his confrontation rights can be found in the small changes to NCGS 20-139.1 – the DWI Notice and Demand statute. Sounds dry and it is; but it’s important.  The loss of a right here weakens the right over there. And every right everywhere.

Prior to the amendments to this statute, the law surrounding the admissibility of written blood, urine and breath reports as well as chain of custody reports in lieu of witnesses having to testify about what the reports say was: first, (Notice) that the State had to provide written notice and a copy of the report to the defense at least 15 days prior to the hearing at which the report would be used; and second, (Demand) that the defense failed to object and demand the presence of the witnesses  in writing  at least five days prior to that hearing.  In other words, in order for the defendant to insist that he be confronted with the witnesses against him, the State needed to advise him that it intended not to bring those witnesses to court, and, he, the defendant needed to object.  Obviously, if the State failed to put the defendant on notice, the defendant didn’t need to object.

Notice and Demand statutes are, themselves, designed to deny the defendant his confrontation rights by imposing some affirmative duty on the defendant to invoke that right, not to be deemed to have waived the right by failing to do something.  It seems to me that if the defendant has a right to confront the witnesses against him, the State should be required to bring those witnesses to court to testify and be cross-examined; not be allowed to warn the defendant that he – the State – is going to get the evidence in through an un-cross-examinable piece of paper unless the defendant specifically, and in writing, demands the presence of the witness. Since when does a right exist only after you’ve been threatened with the violation of it, and you have to express your objection, in writing, to the violation?

This already horrible piece of legislation has been worsened by two tiny yet significant changes.  The first is a change in the Notice provision: the State now must notify the defense no later than 15 days after receiving the report and at least 15 days prior to the proceeding (my itallics). The second, and far more significant change, is a change in the Demand provision that reads as follows:

If the proceeding at which the report would be introduced into evidence under this statute is continued, the notice provided by the State, the written objection filed by the defendant, or the failure of the defendant to file a written objection shall remain effective at any subsequent calendaring of that proceeding (my itallics)

The first change forbids the State from sitting on a report till the last minute, which under ethical rules it shouldn’t do anyway.  The second change – staggeringly – tells the defendant that if he hasn’t filed his objection and demand prior to the first court date, he is forever prohibited from filing it; he can no longer avail himself of the five-day rule to file his objection.  His right to confront the witnesses against him is forever lost because he didn’t file his objection prior to the first court date.  For all we know, the defendant intentionally didn’t file his objection prior to the first court date for tactical reasons, and he later discovered that his better tactic would be to file it (remember, we’re talking about DWI’s in District Court where there is no right to discovery).  Perhaps the defendant discovered a piece of information on that first court date that he couldn’t have discovered prior to it, and it was that piece of information that led him to rethink the mandatory invocation of his right. Maybe, he just forgot to file it; the case is continued for whatever reason – maybe it was the State’s motion to continue it – and the defendant is barred from filing his objection to the violation  of his rights at least five days prior to the next hearing or the next or the next or the next.

Or perhaps, I am hired by a defendant who realizes he doesn’t want his original lawyer because, you now, he doesn’t do things like file timely objections, and my client is forever precluded from filing his objection and exercising his absolute and unrestricted  right to be confronted with and to cross-examine his accusers, as the Constitution – without any notice and demand nonsense – guarantees, all because his previous lawyer didn’t know what he was doing!

Happy 240th plus one day, my wonderful champions of freedom.  Stay vigilant, my friends.








In case you missed it, my fellow freedom-fighters, last Wednesday, the Tea Party leadership in the North Carolina Legislature called a special session of the General Assembly at a cost of about $42,000.00 of North Carolina tax-payer money.  What crisis, you may inquire; what dire eventuality must we forestall, you may ask, that would require all of the State’s legislators to drop everything and rush back to Raleigh?  An impending terrorist attack?  An epidemic?  The threat, perhaps, that dozens of companies as well as the NCAA and the NBA will stop doing business with our State?   No. The Republicans called this special setting of the General Assembly all for the purpose of telling Charlotte that it can’t enact an anti-discrimination ordinance, due to go into effect on April 1. That’s right, the State’s government had to convene an emergency setting to prevent a city’s democratically-elected officials doing their job.  Charlotte’s ordinance among other things, would have allowed transgender people to use public bathrooms that reflected their new gender or the gender with which they identify.  (I saw a picture on Twitter of a guy with a beard and wearing a baseball hat who will now have to use women’s bathrooms).

This law, HB2, that the State House passed with some pathetic Democrats  (I name-shame them on Twitter) joining, and which the Senate passed after all the Democrats in that chamber walked out, and which Governor Pat McCrory immediately signed into law – this law – not only banned Charlotte’s attempt to protect people from discrimination but banned all cities, towns and municipalities in the State from enacting such local legislation; and, for good measure, threw in a provision that forbids local governments from establishing a minimum wage above the current federal slave-wage. Thank you so much, NC law-makers, for coming together, addressing and rectifying this vile assault on our values…or whatever.

The bathroom police, these stalwarts of less government, bullied their way into the realm of local governance – a rock in the foundation of right wing politics – and stripped North Carolinians of their right to live in an environment that reflects their values…or whatever.  Remember, Mecklenburg County (Charlotte’s county), was one of only six of North Carolina’s 100 counties that voted in 2011 against the “marriage amendment” to the State Constitution that declared marriage to be a union between a man and a woman, and which was ultimately struck down by the US Supreme Court.

Once again, the Duck Dynasty “values” of our rural counties are forced on the rest of us – Wilmington, Raleigh, Durham, Chapel Hill, Charlotte, Greensboro, Winston-Salem, Asheville, Boone.  And what’s the common denominator among these places?  Well, let’s  look at the rest of our State: what’s the common denominator in the 91 counties that are not New Hanover, Wake, Durham, Orange, Guilford, Forsyth, Mecklenburg, Buncombe, Watauga. Not to put too fine a point on it, it benefits Republicans to keep people uneducated, ignorant, divided and poor.  And for as long as this, their base, continues to buy into their lies and to vote against their self-interest, the GOP can continue to rip us off and give tax breaks to their rich, corporate backers.

But wait…

Hey, Republicans: Welcome to the law of unintended consequences, you fucking morons.  You didn’t just fuck us; you fucked yourselves too.

Thanks to the Tea Baggers’ ugly, mean-spirited, unnecessary, molly coddling of their “base,” they forgot who their true masters are.  And their true masters don’t want any part of this sort of stupidity.  Their masters know that if they don’t condemn a law so unashamedly bigoted and discriminatory their shareholders will not be happy about the loss in profit.  So their true masters – IBM, Dow, AA, Bank of America, Duke, Wells Fargo (to name just a fraction of the capitalist class that has weighed in), the NBA for fuck’s sake ( Chalotte’s supposed to host the All Star game in 2017 and the NBA’s talking about pulling out!), even the NCAA all condemn this law and are threatening to do the very thing our legislature ought to convene a special setting to prevent – taking their business elsewhere (#boycottNC is a thing)

At least Georgia, whose tea bag legislature tried to do something similar, had the sense (or maybe it just worked out this way) to allow some time between the passing of their bill and the Governor signing it. By the time the bill arrived on the Governor’s desk, he had seen the public and corporate revulsion, and found himself in the oh-so-enviable position of being able to veto the law on moral grounds.  NC, on the other hand, has overplayed its hand. By having their lapdog governor, McCrory, lurk in the shadows, pen in hand, to sign the bill into law, they’ve left themselves no way out.  How do they gracefully bow out and avoid the massive loss of revenue to our State by the corporate boycott?

Well done Rethuglicans.  You fucked us again.





Moral Monday Round Two

This week I was privileged to represent two defendants from the most recent Moral Monday arrests at the North Carolina General Assembly’s Rotunda (North Carolina’s Forum ,if you will) .  These two cases were the first cases that the State of North Carolina called for trial stemming from the 2015 Moral Monday demonstrations against the Tea Party legislation spewing out of the North Carolina General Assembly.  My clients were charged with second degree trespass upon the General Assembly building and violating that building’s fire code.  Both were found not guilty of the trespass charge and guilty of the fire code violation.  We appealed the convictions to Superior Court to be tried again before a jury.

You may remember that the original Moral Monday cases from 2013 ended up in the State voluntarily dismissing almost all of the 1000 or so defendants arrested in the Rotunda that year, including the remaining 18 clients of mine (I started out with 25, won seven, lost ten and appealed; the other eight never got tried before the mass dismissals).  The reason the State dismissed all those cases was because, while these cases were pending, the US Supreme Court case of McCullen v. Coakley was handed down.  This case found a Massachusetts law that created a buffer around abortion clinics to be unconstitutional. The buffer disallowed anti-abortion advocates from approaching people going into abortion clinics within a certain distance from the clinics.

In light of the McCullen decision, the Wake County, North Carolina District Attorney, who at that time was the Interim DA Ned Mangum – a well-respected District Court Judge who was appointed to the position to fill a gap between the retirement of the previous DA and the election of a new DA, a Republican, a very decent person and an excellent lawyer – made the gutsy and correct call to dismiss the charges.

Following the 2013 demonstrations, many lengthy  trials, some convictions, some acquittals, and the dismissals, the General Assembly announced that, in response to 2013, it would revise the legislative building’s rules and laws.

And it did.  For the worse.

You would think that the Republicans (their majority is huge in both houses) would have heeded the lessons from the dismissals of the 2013 cases and amended the rules to accommodate citizens wishing to participate in their democracy, make the place where our democracy is actually being carried out more accessible to the people whose democracy this is.  But no; they actually made it harder for people to come to their Forum to petition their government for a redress of their grievances.  They created even more restrictions, made it even harder for citizens to actually engage themselves in their governance.  And I found out exactly how when I tried my two clients’ cases.

The Republican leadership, having been given notice by the NC NAACP of the Moral Monday event in the General Assembly’s Rotunda, decided to bring the Fire Marshall to the legislative building a few days before the demonstration and have him perform an “inspection” of the  building.  The statutorily-mandated annual inspection of the building was not due for several months.  The legislature rammed through a law that changed the annual inspection to an as-needed inspection, and decided, you guessed it, that an inspection was needed. The Fire Marshall performed his “as-needed” “inspection” and, wouldn’t  you know it, concluded that there needed to be “zones” in the Rotunda that would be designated “egress” areas. Egress areas are areas that are set aside for the purpose of people being able to leave.  According to the Fire Code, “egress’ areas are to be kept clear of any number of specifically listed obstructions except, interestingly, people (after all, it would be hard for people to both use the egress areas and not be in the egress areas at the same time).  Nevertheless, on the day of the demonstration, the people – my clients and others – in these “egress” areas were told they had to move away, did not move away, and were arrested.

Not only is the timing of these newly-created egress areas interesting but so is the fact that in the 50-ish-year history of this building, never has anyone seen fit to question the lack of egress areas in the Rotunda.  Furthermore, there is not a shred of evidence that in the much larger 2013 demonstrations there was  even the suggestion that people were unable or hindered in any way when exiting the two legislative chambers, offices, public areas around the Rotunda or the Rotunda itself.

These egress zones were clearly created for the double purpose of restricting people’s access generally to the Rotunda and creating zones that automatically criminalized people’s presence in the Rotunda if they happened to be on the “wrong” side of a rope.

In a wonderful twist of irony, the trespassing charges against my two clients ended up in verdicts of not guilty because the legislative building’s police force – the tool of the Republican leadership that came up with this fire-code fiction – charged my clients not with trespassing by refusing to move out of the egress zones but with trespassing by exceeding the occupancy limit of the Rotunda. There was, to be annoyingly geeky and lawyer-y, a fatal variance between the charging instrument and the evidence.  And, in another wonderful little wrinkle for you, the statute would seem to suggest that the proper defendant in an exceeding-the-occupancy law would be not the people occupying the space but the authorities whose job it is to monitor the space – in this case, the very police force who charged my clients. They should have charged themselves.

I am proud and humbled to be allowed to represent these American heroes attempting to participate in their democracy, and I thank The Reverend William Barber and the North Carolina NAACP for all they do to advance responsible, progressive, inclusive, compassionate causes throughout our state and country.

Forward Together; Not One Step Back.








The following is based on actual events. Any resemblance to real persons, living or dead, is purely coincidental (How do these two disclaimers live with each other?)

As we all know, there is no such thing as a non-statutory aggravating factor (see previous blogs on this subject).  And here’s a wonderful example of how the finding of a non-statutory aggravating factor can hurt the State.

Danny Defendant has three pending DWI’s and no prior convictions.  He goes into court and pleads guilty to the second DWI (let’s call this DWI number two).  The Judge asks the State if there are any aggravating factors; the State offers none.  The judge asks  Danny’s lawyer (oh, that would be me) if there are any mitigating factors; the defense offers the statutory mitigating factor that Danny has had a substance abuse assessment and participated in the recommended treatment (in this case, he was actually in in-patient treatment).

By law (see my previous blog on this subject – the Grieslecrain case), Danny is entitled to a sentence in the mitigated (and lowest) range – a (DWI) level 5 sentence.  In this case, however,  the judge, sua sponte, finds two non-statutory aggravating factors: first, that at the time of this offense, Danny had been charged with a separate DWI (let’s call this DWI number one); and, second, that the Defendant crashed his car into a police car (both of which are true).  The judge finds that the non-statutory aggravating factors are counterbalanced by the mitigating factor, and sentences  Danny under (DWI) level 4 .

The Defense lawyer – who knows a thing or two about such matters – remains quiet on the judge’s unlawful sentence.  Why, I hear you clamour, does the defense lawyer remain silent?

Now would be an appropriate time for a quick primer on aggravating factors. (This is all Scalia.)  A non-prior conviction aggravating factor is anything other than the fact of a prior conviction that elevates the punishment beyond the statutory maximum punishment for the particular crime.  As such an aggravating factor is an element of the greater offense; the original crime plus the aggravating factor = the greater offense.  For example, in NC, misdemeanor fleeing to elude becomes a felony if the State can prove all the elements of the misdemeanor plus at least two statutory, specifically listed, aggravating factors.  This is a well-written statute; it makes clear exactly what is needed to elevate the crime (and punishment) from a misdemeanor to a felony; and, it acknowledges that aggravating factors are the same thing as elements of a crime (which, as we know,  because of separation of powers issues, only the legislative branch of government can create).  Furthermore, aggravating factors must be proven beyond a reasonable doubt in exactly the same way and subject to the same rules as elements of a crime.  Lawyers should read Apprendi, Blakely et al.

Back to Judge *******’s creation of, finding of and punishing for the non-statutory aggravating factors in Danny’s case:

In the case of a misdemeanor DWI in the lower, non-jury, division of court, Danny is probably not entitled to actual notice of the aggravating factors that might be used against him.  This is so because he is on notice of the potential aggravating factors that are listed in the DWI sentencing statute, and there are mechanisms in place for him to discover the facts (elements and factors) that the prosecution intends to use against him.  He is, however, entitled to know the crime that he is being charged with.  In the case of a DWI, he is on notice that he is charged with DWI,  which encompasses the six different levels of punishment and all of the possible aggravating factors that are listed in the statute (the catch-all “any other fact that aggravates…” is unconstitutional).  Danny obviously is not on notice of the greater offense of the DWI plus the two non-statutory aggravating factors that the judge created, found and imposed punishment on in his case (see my previous blog where we contemplate the potential non-statutory aggravating factor of the defendant’s wearing a loud shirt in a built-up area).

Danny has just been punished for a crime that he was neither charged with nor pleaded guilty to.  And that crime – DWI plus two non-statutory aggravating factors (one of which is a pending DWI that he happened to be charged with before this offense and which he is currently presumed to be innocent of))  – doesn’t even exist; it’s a crime created by the judge.  The judicial branch of government doesn’t create crimes; the legislative branch of government does – Apprendi/Blakely/Aggravating Factors Issues often raise the separation of powers question; but it’s usually the executive branch (the DA) who is trying to create new law.

Why is this a problem for the State? I hear you ask.  Why would the State care if the judge increases Danny’s punishment for this DWI because of the fact that at the time of this charge he had previously been charged in another DWI?

Because when the State tries to prosecute Danny for DWI number one, the State will be barred from doing since he’s already been punished for that crime.  Double jeopardy disallows being punished for the same crime twice.  And Judge *******’s using the fact of DWI number one against Danny when (s)he sentenced him in DWI number two means that Danny has already been punished for DWI number one, and he can’t face punishment for DWI number one again.

For example:  Defendant is charged with DWI and child abuse because he had a kid in the car with him.  If he is found (or pleads) guilty to both charges and the State wants to aggravate the DWI because of the statutory aggravating factor that the defendant had a kid in the car, the judge must arrest judgment (not punish) on the child abuse charge.  To both punish the defendant and aggravate his DWI sentence would be punishing him twice for the same offense. This is well-established law.  Everyone knows this.

So.  What am I going to do when it’s time to deal with DWI number one?  Plead not guilty, let jeopardy attach, and move to dismiss the charge on the grounds that Danny has already been punished for this offense when DWI number two was aggravated by the fact that Danny picked up that charge having been previously charged for the same offense in the current case – DWI number one.

That is why the State should care when a judge finds a non-statutory aggravating factor: it can’t prosecute DWI number one.



In Danny’s case, I appealed the matter to Superior Court.  The question then becomes: Is the Apprendi/Blakely/Double Jeopardy issue in DWI number one moot, or non-existent, since the sentence in DWI number two has been appealed?  Interestingly, North Carolina has a bit of a history messing around with DWI appeals from District Court to Superior Court.

In 2006, the legislature closed the loophole that allowed defendants with two DWI’s to be guilty of both but have neither be a prior conviction to the other.  We managed this little piece of sleight of hand by either losing or pleading guilty to one of the two DWI’s (it didn’t matter which one) and appealing, and then either losing or pleading guilty to the other DWI and  not appealing that one.  Because the prior DWI was on appeal, the sentence in the next DWI could not be aggravated by that prior conviction – it was appealed, so not a conviction. We would then remand the appealed DWI, which under the pre 2006 law-changes, resulted in the District Court sentence being automatically imposed – no re-sentencing.  This switch and bait resulted in two first-offender DWI sentences for a defendant with two DWI convictions.  No prior conviction to worry about in either case.   Genius!  We all did it.  It was the law.  In fact, if you didn’t do it, you were committing malpractice.

2006 changed all of this.  Now, an appealed DWI sentence was automatically vacated – not merely stayed as in the case of pre-2006 DWI’s and  all other misdemeanors – then and now – appealed to Superior Court.  This vacating of the lower court’s sentence meant that, upon remand of the case back to District Court, the District Court was required to conduct a new sentencing hearing.  Gone were the days when you could avoid the finding of a new conviction for DWI that didn’t exist at the first sentencing because the newly-convicted DWI was still pending at the time.  Post 2006, the District Court could conduct the new sentencing hearing only if all of the defendant’s DWI’s were resolved. No more two level 5 DWI’s; post 2006, the State would get its proverbial pound of flesh: a level 3, 4 or 5 DWI sentence on the first, and a level 1 or 2 DWI on the second.

DA’s used the 2006 law changes to increase a defendant’s original DWI sentence by offering, and being able to prove, aggravating factors it didn’t have at the original sentencing hearing – in particular, convictions for prior DWI’s.  Defense lawyers used the 2006 law-changes to our clients’ advantage as well: between the time of the appeal and the remand/re-sentencing, we would have our clients do things to provide mitigating factors that we didn’t have at the first sentencing.  The re-sentencing law provided the State and  Defense the opportunity to change the original sentence.

Then December 1, 2015 came along.  Now, DWI’s that were appealed after that date benefit from an actual re-sentencing only if there are additional aggravating factors that the  State wants to prove.  Otherwise – as in, if the Defendant would like to be heard on mitigating factors – there is no re-sentencing; the law has reverted to the pre-2006 law only if it helps the State, but not if it might help the defendant (I feel a new blog post a-comin’; this has to be a due process violation).

Danny’s appealed case still serves as a prior conviction to his pending case exactly because the legislature understands the difference between remands without a re-sentencing and remands with a re-sentencing.  If it didn’t, it wouldn’t spend so much time tinkering with those laws.  And, in a wonderful piece of irony, the combination of the new law designed to fuck the defendant and the judge creating an element of a crime that doesn’t exist, may have created the very outcome they were trying to prevent.





























1. 20-139.1(c1) ADMISSIBILITY


1. WHEN THE STATE WANTS THE EVIDENCE INTRODUCED. NCGS 20-139.1(c1) is the notice and demand requirement that exists for the purpose of curing the confrontation clause problem facing the State when it wants to introduce something into evidence – in this case a blood test result – without producing the witness to testify about it. Specifically, this statute lays out the method for the State to introduce the evidence of a person’s alcohol concentration without the necessity of the chemical analyst being present and testifying. In order to do so, the State must do two things: first, notify the Defendant at least 15 business days before the proceeding at which it intends to introduce the evidence of its intent to introduce the evidence through a report; and, second, provide a copy of the report to the Defendant. If the Defendant fails to object in writing at least five business days before the proceeding, then the State will be permitted to introduce the report into evidence without the chemical analyst’s being required to appear and testify. If the Defendant objects timely before the proceeding, then the State must bring in the chemical analyst to testify (or try to get the evidence in under the rules of evidence – more on that below). The Defendant’s failure to object is a waiver of his confrontation clause rights. And in the case where the Defendant waives his right, the evidence will come in via the chemical analyst’s affidavit.

2. WHEN THE DEFENDANT WANTS THE EVIDENCE INTRODUCED. When the Defendant wants the evidence contained in the report to be introduced into evidence, the Defendant is not bound by the rules in this statute. The Defendant can introduce the report, which fortunately is always an affidavit, into evidence through one of the State’s other witnesses on cross-examination. This is so because the notice and demand statute applies only to the State, and this is so because the State doesn’t have a confrontation clause right. The way to introduce an affidavit into evidence is easy; the foundation is simply that it is an affidavit relating to this case; it is an affidavit of whoever the affiant is; the affidavit is properly notarized or certified.

B. CONCLUSION. The State will generally bring the chemical analyst to court when the Defendant files a timely objection . In the event the State fails to bring the chemical analyst to court, then the Court should, and usually will, suppress the evidence. Obviously, if the Court appears inclined to allow the evidence in when the Defendant has timely objected, it’s time to speak up and steer the Court away from a decision that may prove to be embarrassing later on.



A. According to this provision of the statute (c3), in order for the State to avoid bringing in all of the chain of custody witnesses, two things must occur: first, the State must comply with the same notice provisions as in (c1); and second, the defendant must fail to object. This rule is identical to the rule in GS. 20-139.1 (c1). Yet, for some reason, the State feels, and Judges accept, that the State need comply with only (c1) but not (c3). Invariably, Defendants file their objections, show up in court, and the State has its chemical analyst but not a single chain of custody witness between the policeman who received the evidence from a nurse, perhaps, and the chemical analyst who received the evidence from someone else. The State has a piece of paper identifying who all the “unnecessary” witnesses are; so the State knows who these people are; they all work for the State government in some capacity; yet, upon the Defendant’s timely objection, the State brings into Court only the witness referred to in (c1) but none of the witnesses referred to in (c3) – even though the rules under (c3) are identical to those under (c1). And, usually, the State gets away with it; the State gets to introduce the evidence without bringing in to court their chain of custody witnesses. If the State knows it can get way with ignoring (c3), why does it even bother bringing in the chemical analyst under (c1)? Why doesn’t the State ignore this rule too?

Here’s why: The “chain-of-custody-goes-to-weight-not-admissibilty” argument. This argument, in the context of 20-139.1(c3) is a total red herring. The statute is unambiguous that the only way in which the State can avoid bringing in the chain of custody witnesses is if it provides the statutory notice and the Defendant fails to object; there is nothing in this statute or anywhere else that provides an exception to this rule. While the argument that chain of custody issues go to weight rather than admissibility has some basis, when a statute like 20-139.1(c3) exists, there can be no argument over weight versus admissibility unless the Defendant has failed to object. This entire statute is about admissibility, hence its name; the legislature has spoken as clearly as we could ask it to: chain of custody witness-statements can come in through a piece of paper only if the state has notified the Defendant of its intent to do so and the Defendant has failed to object.

As to the argument of weight versus admissibility, which should arise only in the event that either the State has failed to notify the Defendant or the Defendant has failed to object when the State has notified the Defendant, the bold assertion that issues of chain of custody go to weight rather than admissibility is simply false; it is a mis-characterization the law: Breaks in the chain of custody go to admissibility; weak links in the chain of custody go to weight. See State v. Pennington, 327 N.C. 89 (1990); State v. Fleming, 350 N.C. 109 (1999); State v. McDonald, 151 N.C. App. 236 (2002); and, crucially, see the two civil cases: Lombroia v. Peek, 107 N.C. App. 745 (1992), and Columbus County, on behalf of Brooks v. Davis, 163 N.C. App. 64 (2004). The civil cases are especially strong for the criminal defendant to argue because civil defendants are not afforded the same constitutional protections as criminal defendants; in particular, civil litigants do not benefit from criminal defendants’ confrontation clause rights.

Further certainty as to the statutory intent of both (c1) and (c3) is the fact that both of these provisions include the following language: “Upon filing a timely objection, the admissibility (my italics) shall be determined and governed by the appropriate rules of evidence.” So, by including this language, the legislature actually emphasizes the only manner in which chain of custody statements come into evidence in the absence of the actual chain of custody witness – that the rules of evidence will then determine and govern the admissibility of the chain of custody statement. What the statute fails to mention (because it obviously need not) is that the evidence will not be admitted if it violates the Defendant’s constitutional rights. And in the case of the State providing notice to the Defendant and the Defendant’s objecting, where admissibility will then be governed by the rules of evidence, if the State is able to find a rule of evidence that would allow the piece of evidence to be introduced, the State must do so without violating the Defendant’s constitutional right to be confronted with and to cross-examine the witness against him. See Crawford v. Washington, 541 U.S. 36 (2004) and its progeny.

3. 20-139.1(b)

A. “The Results of a chemical analysis shall be deemed sufficient evidence to prove a person’s alcohol concentration.

This is the language at issue in the case of State v. Narron, 193 N.C. App. 83 (2008), as well as the source of the per se pattern jury instruction – an instruction that so obviously makes a presumption about whether a fact has been proven or not (which, as we all know, is the function of the jury and the jury’s alone) that the ultimate result in Narron beggars belief. But despite this language (and the Narron Court’s ultimate decision), Narron is actually good for us. Narron makes clear that evidence of a particular breath or blood result (.08 for example) does not actually create the legal presumption that the jury must find that that piece of evidence has been proven; rather, Narron instructs, it is treated as simply some evidence of the fact – to be treated like any other piece of evidence; it is nothing more than prima facie evidence of the fact that must be proven. (Try explaining that to a jury when they’ve just been told by the judge, whose law they’ve all repeatedly promised to follow, that the results of a chemical analysis shall be deemed sufficient evidence to prove a person’s alcohol concentration!).

4. 20-139.19(e1) and (e2)

A. These provisions of the statute allow the State, in District Court, to introduce the chemical analyst’s affidavit without further authentication and without the testimony of the analyst with respect to the five listed matters. Number 5 is interesting in that it seems to disallow the Court from taking judicial notice of the preventive maintenance records that 20-139.1(b2) specifically does allow. Under this provision, the affidavit must contain “the date the most recent preventive maintenance procedures were performed on the breath-testing instrument used, as shown (my italics) on the maintenance records for that instrument.” It sounds like, the State, in this scenario, would need to actually produce the preventive maintenance records, and not be allowed to have the Court take judicial notice of them, as is allowed under 20-139.19(b2), discussed above.

B. The method for admitting this affidavit into evidence (e2) is identical to the methods referred to and discussed above in 20-139.1(c1) and (c3) – notice and demand. What this provision glaringly omits is any reference to a test ticket. If the affidavit doesn’t contain the alcohol concentration (which, for some reason, it rarely if ever does), then, because of the absence of any mention of a test ticket or any other piece of paper that might contain the alcohol concentration, the affidavit comes in but the test ticket containing the alcohol concentration does not; only the affidavit comes into evidence. It is well worth noting that the equivalent statute that existed in North Carolina, prior to Crawford v. Washington, allowed the introduction of the chemical analyst’s affidavit and “attached test ticket” to establish the Defendant’s alcohol concentration. So the argument that the legislature obviously intended for the test ticket to be admissible as well as the affidavit is defeated by the fact that the legislature has previously dealt with this issue in the era prior to Crawford overruling the Ohio v. Roberts, 448 U.S. 56 (1980) hearsay reliability standard, and specifically included the “attached test ticket” language.

Just like sections (c1) and (c3), section (e2) calls for the rules of evidence to govern in the event that the State has provided notice and the Defendant has objected. And, of course, the same confrontation clause analysis applies here as it does under (c1) and (c2).

Note the awful language that “the case shall (my italics) be continued until the analyst can be present.” Is this true even if the file has been marked “last for the State”? Does this provision allow for an indefinite continuance? It seems to – which, of course, raises a speedy trial issue. Interestingly, the case can be dismissed if the analyst “willfully fails to appear after being ordered to appear by the court.” I would have thought the remedy would be suppression of the evidence (and the analyst being held in contempt of court), but apparently, it’s dismissal of the case.




Challenging checkpoints requires, initially, a two-prong analysis: first, the checkpoint’s constitutionality on its face; and, second, its constitutionality as applied. The mistake that many defense lawyers make is looking at the checkpoint’s plan, seeing nothing wrong with it and abandoning the facial argument. You cannot know if the checkpoint plan is constitutional on its face until you have questioned the checkpoint supervisor – or someone – on the stand; invariably the supervisor will testify to something that seems to contradict the plan, or that indicates that the Primary Programmatic Purpose of the checkpoint is not what the State would like it to be, or that allows for impermissible discretion of the officer in the field, or some other fact that calls into question the constitutionality of the checkpoint. A checkpoint’s facial challenge, therefore, is actually a hybrid of a pure facial challenge and a general “as applied” challenge. Even when the facial challenge to the checkpoint’s constitutionality fails, the actual “as applied to the particular individual in question” analysis kicks in. The manner in which the individual defendant in a particular case was actually dealt with by the policeman who the defendant encountered could still lead to the conclusion that the defendant’s constitutional rights were violated and that the evidence against him should be suppressed.


A. CITY OF INDIANAPOLIS V. EDMOND. The starting point for challenging the constitutionality of any checkpoint is with City of Indianapolis v. Edmond, 531 U.S. 23 (2000). This case arose from Indianapolis’s “narcotics checkpoints” – a series of checkpoints set up throughout the city for the putative purpose of narcotics interdiction. The Supreme Court found that these checkpoints were indistinguishable from general crime control checkpoints and, therefore, too broad in their reach. The Constitution, this case tells us, recognizes only four types of checkpoint: sobriety checkpoints, driver’s license and registration checkpoints, interception of illegal aliens checkpoints, and Lidster-type checkpoints.  Read the case.  If the State cannot establish that the checkpoint in question falls into one of these narrow exceptions to the prohibition against suspicionless seizures and is, therefore, indistinguishable from a general crime control checkpoint, then the checkpoint fails this initial constitutional question.

B. PRIMARY PROGRAMMATIC PURPOSE AND STATE V. ROSE. State v. Rose, 170 N.C. App. 284 (2005) is the next step in challenging the constitutionality of a checkpoint.  Read it.  Rose’s discussion of the Court’s having to identify and make findings as to the primary programmatic purpose of the checkpoint is simply re-articulating City of Indianapolis’s requirement that a checkpoint fall within one of the four permissible types of checkpoint discussed above. However, Rose does impose the additional requirement that the Court make actual findings of fact to support its conclusion as to a checkpoint’s primary programmatic objective. The role of the defense lawyer, at this stage of the attack, is to point out why the checkpoint in question either does not fall within one of the four listed types of checkpoint, or, probably more successfully, why the checkpoint is indistinguishable from a general crime control checkpoint. If the State is able to establish that the checkpoint in question does indeed fall within one of these four types of checkpoint, the analysis switches to one of reasonableness.

C. REASONABLENESS AND BROWN V TEXAS. If the Court determines that the checkpoint does in fact fall within one of the four exceptions, and is satisfied that the primary programmatic purpose is what the State claims it to be, the Court must then determine the checkpoint’s reasonableness under the three-part test of Brown v Texas, 443 U.S. 47 (1979). This three-part test requires the consideration of three factors: (1) the gravity of the public concerns served by the seizure; (2) the degree to which the seizure advances that public interest; and (3) the severity of the interference with individual liberty. Read the case.

1.(a) Factor 1. This factor is generally not a problem for the State if the Court has already determined that the primary programmatic purpose of the checkpoint is one of the four listed exceptions – drunk driving is bad. It is unfortunate that the Courts have focused on the type of checkpoint as satisfying this factor rather than the actual seizure involved in the checkpoint (see Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990) and State v. Veazey 191 N.C. App. 181 (2008).

2.(b) Factor 2. Under this factor, the question is whether the checkpoint is sufficiently tailored to meet the important criminal investigatory needs. Why this area? Why this road? Why this direction of travel? Why this time? Why this type of checkpoint? The defense lawyer can and should always go back to the argument that the checkpoint is actually a general crime control checkpoint if the witness’s testimony suggests it – which will always be the case).

3.(c) Factor 3. This factor actually requires the Court to consider two things: first, the intrusiveness of the checkpoint; and second, whether the checkpoint allows individual policemen to act in an arbitrary, unconstrained and discretionary manner – the “unfettered discretion of the officer in the field” argument. This factor is a hay-making opportunity for defense lawyers. If the plan on its face, or the checkpoint’s operation as described by the witness, allows for different officers to behave in different ways with the motorists they’re dealing with, then the cops are being given permission to act in an arbitrary, unconstrained and discretionary manner. The defense lawyer should find the portion of the plan that instructs the officers on what their interaction with the motorist should be and listen to the witness’s testimony on this subject with particular vim; and she should pursue with vigor those areas that seem to allow for officers to deviate from the plan or give officers discretion in the manner that they interact with the driver.

D. NCGS 20-16.3A CHECKING STATIONS AND ROADBLOCKS. In addition to scrutinizing what the checkpoint plan allows the individual policeman to do while engaging with the member of the motoring public, the defense lawyer must investigate whether the plan complies with NCGS 20-16.3A.  Read the statute.  I have still to figure out what the first sentence of 20-16.3A(2a) means – how something can be both written and not in writing baffles me; however. The remainder of that subsection as well as subsection (3) is clear on what the bare minimum requirements are for the police to conduct a checkpoint: a policy; contingency provisions (deviations) but that disallow individual officers’ discretion; the fact that one police force may operate under another police force’s policy as long as its doing so is stated in writing.

Subsection (3)(b) instructs on the permitted behavior of the individual policeman working a checkpoint. This provision is rife with opportunity for the defense lawyer, and is, conveniently, the segue into the Constitutionality As Applied discussion. Obviously, if the plan on its face fails to comport with the statute, that is a facial challenge – albeit a statutory violation, but one which would still result in the remedy of suppression either under the theory that the violation is a substantial statutory violation or that the statutory violation is also a constitutional violation on reasonableness grounds. What is most interesting to me about this subsection is if the determination of reasonable suspicion mentioned in the first sentence is the same level of determination mentioned in the second sentence but which omits any reference to reasonable suspicion; and whether the determination of reasonable suspicion mentioned in the third sentence is the same level of determination mentioned in either of the two previous sentences. What exactly is subsection (3)(b) telling us? The notion that a criminal statute must be interpreted narrowly in favor of the defendant is well-settled; I encourage you to find an old pre-Declaration of Independence case from, perhaps, the Commonwealth of Virginia, that stands for this proposition, and back that up with one of any number of North Carolina appellate cases.  Do your research; geek out; have fun.


When the issue is whether the policeman, dealing not with the theoretical member of the motoring public but my client, deviated either from the plan or the statute, the question becomes: Is this checkpoint unconstitutional as applied to my client? As in the above analysis of attacking the plan on its face, the area of attack on a checkpoint as being unconstitutional “as applied” requires a close reading of what the plan allows the policeman to do and an equally close reading of NCGS 20-16.3(A)(3)(b).

The “as applied” challenge speaks specifically to the third prong of the Brown v Texas reasonableness balancing test that instructs that a checkpoint provide “explicit, neutral limitations on the conduct of the individual officer.” Brown at _____. And the checkpoint must provide for “orderly procedures to limit the unfettered discretion of officers in the field in order to avoid the arbitrary invasion of motorists’ privacy interests.”

If the manner in which the officer actually dealt with my client exposes a deviation from what is prescribed in the plan or 20-26.3A(3)(b), then the officer’s behavior was unlawful and unreasonable under the Fourth Amendment.


        City of Indianapolis v. Edmond informs us that checkpoints are presumptively unconstitutional. Some States -Texas being one of them, interestingly (to me) – have found checkpoints to be in violation of their State Constitutions; and, in my view they should be deemed to be in violation of North Carolina’s constitutional ban on general warrants.  Read the Constitution.  Checkpoints permit the cops, the government, our servants, without a trace of probable cause or reasonable suspicion of criminal activity, to seize the motorist going about his business. Checkpoints are terrible.  And this article hasn’t even dealt with the question of the cops chasing someone down who decides he’d rather forego the involuntary encounter with the government’s enforcement arm by lawfully turning away from a checkpoint (yeah, they can do that).  It is more than imperative; it is our duty as criminal defense lawyers – the champions 0f freedom and the last line of defense against the creeping police state – to fight every single checkpoint.



There is no such thing as a non-statutory aggravating factor. I repeat: There is no such thing as a non-statutory aggravating factor. All together now: There is no such thing as a non-statutory aggravating factor.

NCGS 20-179(d)(9): “Any other factor that aggravates the seriousness of the crime.” This is the catch-all under the DWI sentencing statute. This innocuous-looking language at the bottom of the list of all the specific grossly aggravating and aggravating factors is in fact a hugely dangerous piece of legislation and horribly unconstitutional.

It is dangerous because it allows the prosecutor to make up aggravating factors and it allows a judge to find made-up aggravating factors. More on this later.

In his concurring opinion in Ring v. Arizona, 536 U.S. 584 (2002), Justice Scalia writes: “I believe that the fundamental meaning of the jury-trial guarantee of the Sixth Amendment is that all facts essential to the imposition of the level of punishment that the defendant receives – whether the statute calls them elements of the offense, sentencing factors, or Mary Jane – must be found by a jury beyond a reasonable doubt.” Ring at ____. Throughout Scalia’s opinion in Blakely v. Washington, 542 U.S. 296 (2004), and his concurring opinions in Ring and Apprendi v. New Jersey, 530 U.S. 466 (2000), as well as Justice Ginsburg’s opinion, in which Scalia joined, in Cunningham v. California, 549 U.S. ____ (2007), the Supreme Court unflinchingly, unwaveringly and repeatedly reminds us that there is no difference between an element of a crime and an aggravating factor.

In Blakely, Scalia responds to Justice O’Connor’s dissent thus: “It bears repeating that the issue between us is not whether the Constitution limits States’ authority to reclassify elements as sentencing factors (we all agree it does)…” Blakely at ___. He goes onto speculate about the absurd consequences that would result in allowing elements to be found by a jury and factors to be found by a judge: “The jury need only find whatever facts the legislature chooses to label elements of the crime, and those it labels sentencing factors – no matter how much they increase the punishment – may be found by a judge. This would mean, for example, that a judge could sentence a man for committing a murder even if the jury convicted him of only illegally possessing the firearm used to commit it – or of making an illegal lane-change while fleeing the death scene.” Blakely at ___.

Justice Scalia’s “greater offense” theory is, in essence, that aggravating factors are simply elements of a greater offense. Throughout Blakely, Scalia refers to “facts legally essential” to the punishment: “Every fact which is legally essential to the punishment must be charged in the indictment and proceed to the jury.” Blakely at ___. In other words, facts that are presented to the judge, post-trial, and the finding of which cause an enhancement of the punishment, are not “legally essential to the punishment” for the crime the defendant has just been convicted of, but become “legally essential” facts to the greater offense of the crime that the defendant has not just been convicted of but which the State seeks to punish the defendant for. Blakely prohibits a jury trial for a lesser offense followed by a bench trial for the greater offense: “The jury could not function as circuitbreaker in the State’s machinery of justice if it were relegated to making a determination that the defendant at some point did something wrong a mere preliminary to a judicial inquisition into facts of the crime the State actually seeks to punish.” Blakely at ___.

Apprendi and Blakely seem to suggest that in order for the State to punish a defendant for a greater offense, it will have to include the aggravating factors in the indictment and prove them to a jury beyond a reasonable doubt. Cunningham allows for the State to indict the defendant on the lesser offense and punish the defendant for the greater offense so long as the State puts the defendant on notice of its intent to use aggravating factors (or elements of the greater offense) to aggravate the lesser offense. This notice requirement eliminates the need to include the aggravating factors in the indictment and allows for a bifurcated hearing; however, the State must still prove to a jury the aggravating factors beyond a reasonable doubt. So a defendant could plead guilty to the lesser offense that he is charged with in the indictment and require a jury to be empaneled to determine whether the elements of the greater offense he has been given notice of are proven beyond beyond a reasonable doubt.

North Carolina has, for the most part, modified its behavior to comply with the Apprendi/Blakely/Ring/Cunningham rule. Other than in District Court (which I disagree with), the State must put the Defendant on notice of its intent to aggravate a DWI; and the Defendant has the right for a jury to decide whether the aggravating factors (elements of the greater offense, or Mary Jane) are proven beyond a reasonable doubt.

Back to non-statutory aggravating factors. None of the Apprendi cases deals with non-statutory aggravating factors. In each case, the factors are known and described by statute. The issue is: whether, when and how those aggravating factors can be used against a defendant. Non-statutory aggravating factors are unconstitutional because they are non-statutory. Since we know aggravating factors are elements of a greater offense, just as no one can create elements of an offense out of thin air, neither can aggravating factors be created out of nothing Only the legislature has the authority to create crimes and their elements; only the legislature has the authority to create aggravating factors – they are the same thing. If elements of a crime (whether it be the lesser offense or the greater offense) are unknown and cannot be found in a statute book, how on earth are people to be expected to know what behavior is allowed and what behavior is disallowed. If, suddenly, behavior a person engaged in is considered an element of a crime yet it exists in no statute, how could any of us ever know if we’re gong to be punished for it? That’s worse than ex post facto. Also, a prosecutor coming up with some “factor that aggravates the seriousness of the offense” permits the executive branch of government to invade the function of the legislative branch, and clearly violates the principle of separation of powers.

There is no such thing as a non-statutory aggravating factor. Just as there is no such thing as a non-statutory element of a crime (elements and factors are the same thing). If an element of a crime doesn’t exist in a statute book, it just doesn’t exist; it can’t be just made up – and certainly not by either the lone employee of the State standing at the prosecutor table or the lone employee of the State sitting on the bench. Do not allow a prosecutor to convince a judge to find non-statutory aggravating factors; they simply don’t exist; they are unconstitutional.