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DWI Hearings: If Process Is Delayed, Justice Might Have Been Denied

I. Defending the DWI

One of the keys to an adequate DWI defense, often rests with testing the original arrest as lawful, and valid. As the dwi defense attorney, in looking at pretrial release hearings, has pointed out, magistrates have real “obligations quote to guarantee fair treatment of anyone charged.” Courts have also gone on to adopt this perception of “magisterial obligations,” as DWI defense attorneys have been instrumental to reversing or winning new hearings. Let’s look at a unique set, of three consolidated DWI cases, eventually brought to the Supreme Court of North Carolina.

That these three separate cases were consolidated for consideration by the Supreme Court was itself a sort of ‘warning’ from the high Court, that there was something seriously wrong with the DWI system in North Carolina. Even more specifically, all three of the cases were in the same county (Wake).

II. Three guarantees, three separate cases: DWI rights to fight for.

A DWI defense attorney points out that there are three crucial obligations of a magistrate in any DWI arrest. First, the magistrate must inform the person of the charges. Second, the person arrested has to have basic rights to communicate with an attorney: but also, the reasonable right to communicate with friends or his family. The third, and often mistaken action by a magistrate, is that the person must be told about what general circumstances can be followed to get out of jail. These magisterial duties are a sort of interlaced rights; they work together to help guarantee someone is not being harassed or unfairly locked away from their rights, their families, or from release.

Let’s look at each of the three cases, and introduce them, not by the accused person’s name. Let’s introduce the three cases by the blood alcohol level (BAC) alleged.

BAC 0.30.   This was the Knoll case: the DWI defense attorney had moved to dismiss the case altogether. From the minute that Mr. Knoll was put in the jail, he tried to make a call to his father. This young man believed that his father would be able to help him with the entire situation. The request to make that call at the time was denied. Eventually, the father was not allowed to reach his son until very late that night.

BAC 0.25. This was the Warren case: another young man (19), this time driving near North Carolina State University. He was arrested around 10 o’clock at night. By midnight, his father was attempting to have him released from jail. Again, according to evidence introduced by the DWI trial attorney, the magistrate refused access. Instead the magistrate told the father that the “defendant would have to go to jail until six the following morning in order to sober up.”

BAC 0.18. The final case was Mr. Hicks. This time, this man was arrested very early in the morning by the Knightdale police. As with the other men, he was taken to the Wake County courthouse. He appeared before a magistrate, but this time he was allowed to make a phone call at that time (1:30). But while he tried to post his own bond, this was unexplainedly refused. He, too, was kept in jail until hours later, to ‘sober up.’

Research by the DWI trial attorney showed that there were many common facts in these cases. Unfortunately for the magistrate, these facts tended to show that the law was apparently not being followed. In fact, in a rebuke to the magistrate process, the North Carolina Supreme Court called the differences between the three cases “insignificant.” For example, the DWI trial attorney proved that there were no disturbances, and that each of the man was cooperative and “polite.” More importantly, the DWI defense attorney prove that there was no evidence that any of these men would “create a threat of physical injury” if they were released. On these facts alone, the Supreme Court agreed with a DWI defense trial attorney: the men should’ve been released soon after booking. Being able to count on these rules would have served those ends of justice.

III.  3 x 4: Different magistrates, Same Challenged Process

The DWI attorney successfully pointed out to the Supreme Court that the three basic obligations just talked about here, are just that: basic or minimum obligations. Once the magistrate has addressed those three issues, he has another four other duties to perform. These four conditions, in turn, deal with to how the person’s rights to be released in a timely way.

Pretrial release is a basic and crucial right. It often assures that someone accused of DWI (or any crime, for that matter) is able to maintain or prepare their own defense as well as to maintain as much of a normal life as possible. There are, in fact, only four choices for the magistrate in terms of releasing someone accused of DWI.

One. The magistrate can release the accused on a written promise to come back for trial;

Two. The magistrate can release the accused upon an unsecured appearance bond;

Three. The accused can be placed in the custody of a person, or, even, an organization.

Four. The magistrate can require an appearance by a specified amount, and secure that with a cash deposit in the full amount of the bond. This often requires special intervention by a DWI defense attorney as well.

IV.  Measuring “Spirit and Intent” of Freedom

DWI defense attorneys take the loss of freedom, no matter how long it occurs, very seriously. Period. The arguments made in these three cases weren’t simply that the magistrates were “wrong” (they were), and perhaps liable in some professional way. The argument was also made that the only effective remedy to these clear violations of losing the freedom to leave jail before being tried was dismissal of the cases.

The Supreme Court generally quoted with approval the DWI defense attorney position that “the magistrate did not carry out the spirit and intent of this requirement adequately.” There was one important caveat. The Assembly’s changes in North Carolina law regarding alcohol concentration involved a great amount of public debate. In other cases, where the alcohol concentration was 0.10 or more, the Supreme Court decided it will not apply the dismissal of charges as an instant remedy for denying access to attorney, family, or friends.

In all three of these cases, the DWI defense attorney had won the arguments. The cases were dismissed entirely.


It can’t be emphasized enough that the presumption of your innocence before being proven guilty is essential in every criminal trial. DWI has such severe consequences that it should have been obvious to magistrates. Unfortunately, it often takes the intervention, and real life, experienced DWI trial attorney/defense attorneys to make sure these rules are followed. If you, your loved one or family members—have questions involving DWI arrests or release, your legal rights when accused, booked, or arrested, please contact us.  You will speak with an expert in DWI defense, who can best answer your questions about how your arrest and possible trial may be best addressed.  There is never a fee for this initial consultation.

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