make WWAY your homepage  Become a fan on facebook  Follow us on twitter  Receive RSS Newsfeeds  MEMBERS: Register | Login

New DWI Laws Created Loopholes

READ MORE:
New legislation aimed at taking drunk drivers off the streets may be doing just the opposite. District Attorney Ben David says stricter DWI laws, effective December, have created a technical loophole. That's helping many drunk drivers in the county get their cases dismissed. Starting December 1st, Magistrates were supposed to fill out a particular form and give it to the person charged with drunk driving. The problem is many of them weren't doing it. "With the new law came technical legal requirements loopholes if you will that we are working as judges and prosecutors and law enforcement to close off," District Attorney Ben David said. The new, tougher DWI law says a defendant must be informed, in writing, how to get a witness to the jail who can gather evidence on their behalf. A form is supposed to be signed and given to a defendant by a magistrate, when he or she is formally charged with drunk driving. That hasn't been happening. "We have over two thousand cases a year with DWI, and we're talking about a three or four month window where this was really in effect. We're talking about potentially many many cases," David said. Attorneys representing defendants charged with drunk driving here have argued that if the form isn't in their clients files, then client rights have been violated. That defense has won at least a dozen dismissals for one local attorney. "I think it says this," Defense Attorney Griff Anderson said, "That our judges in this county even given the immense political pressure regarding DWI's still above and beyond everything believe in constitutional rights and protecting people's constitutional rights. That is what is at stake when the officers or the magistrates don't follow the requirements of our constitution." Ben David says the state is appealing many of these cases, claiming that the missing form didn't violate a defendant's right to due process. The question remains, why and how did this situation come about in the first place? "It's a training issue with respect to magistrates bringing them up to the new law," David said. Ben David says overall, the new laws are great. He said he will meet with the Chief District Court Judge and the heads of all law enforcement in Pender County Wednesday, and Thursday in New Hanover County to discuss this very issue to make sure everyone is aware of the new procedures. That way this isn't a problem going forward.

Disclaimer: Comments posted on this, or any story are opinions of those people posting them, and not the views or opinions of WWAY NewsChannel 3, its management or employees. You can view our comment policy here.

»

what form is it?

What is the form that the magistrate has to give to you in writing about someone collecting evidence on your behalf called?

Not every person convicted

Not every person convicted is an alcohol raged driver that is driving reckless and disregaurding other people. Some officers are on a power trip like two that i know in KB and will pull you over for no apparent reason. There is no excuse for driving drunk, but i think some cases are different. People get killed by people driving and talking their on cell-phones and you dont see them put in jail. I recently received a dui charge and i walking across the street. I had a beer one hour prior but i also have acid- reflux desease and studies show it can increase your breath submission by up to .20 higher. Do you really think its justice to convict me??

Yes and No DR

I guess you didn't get a good attorney. Acid reflux can have a minimal affect on your breath test, but only if you are having an "attack" at the time of giving the test. If you had an "attack" the officer is suppose to wait a certain amount of time before giving you the test. If the officer waited, your breath test would not have been affected. Your attorney should have been able to make a point with that at court. And as far as the test itself is concerned, officers don't have to have that test to find you guilty. It is just another tool, like the field sobriety test. On a side note, if you have acid reflux disease like I do, you shouldn't be drinking in the first place

dwi laws

this is just unreal now you will have all kinda people claiming all kinda off the wall stuff come on now isnt getting caught proof enough come on people if you do the crime pay the time if they were so worried about drunk drivers they would set up police at all these bars an catch them as they were getting in their cars an leaving i live by two bars in wilmington an see it all the time drunks getting in their cars an driving away.

bull

You might as well stayed with the old law. I was stopped in November and they basically took everything, I still have not got my license back, they said april, I was stopped November. They do what they want to do!

DWI NEEDS TO BE TOUGHER

THANKS AGAIN TO MR. BEN DAVID, FOR TRYING TO PROTECT OUR COUNTY AND CLOSING THIS LOOPHOLE. DO NOT NEED TO SEE ANY DRUNK DRIVERS GET OUT OF BEING HELD ACCOUNTABLE. TOO MANY DWI/DUI OFFENDERS HAVE GOTTEN OFF TOO MANY TIMES WITH LIGHT SENTENCES OR NONE AT ALL. LIKE IN THE CASE OF THE JERK WHO MURDERED OUR DAUGHTER, TRACIE MILLS KHARBAT.... THANKS MR . DAVID...... TROY MILLS

Thank Ben David?

Why should we thank Ben David? He should have been aware of this law and made sure from the beginning that it was correctly implemented. While I realize that it is not exactly his job, and more of the blame should be put on local law enforcement (Evangelous) and the magistrates, tackling drunk driving is a community wide effort. Ben David should not be thanked for this he should have caught on to the mistake the first few times cases were thrown out in court, not hundreds of times later.

Not the DA's fault

The problem with your statement is that court cases come months, even years after the arrest. The DA's office may not have been aware of the problem until it was too late. The DA's office did what they could when they found out about the problem. No matter how you look at it, it's the drunk drivers that are at fault. There is no excuse for drinking and driving, NONE. You get everything you deserve if you are out drinking and driving. I don't feel sorry for you one bit

DWI loopholes?

That's not surprising considering that alot of these laws are made by lawyers and there's always going to be a loophole somewhere. You don't really think that they are going to hurt their livelyhood do you? Defense lawyers(aka scumsucking bottom feeders) are always going to leave themselves room to work. Who cares if a drunkdriver gets off and back on the street as long as the money keeps coming in, right? Just don't hide behind that "his rights were violated" crap like that lowlife attorney said on another TV news interview. He should be the victim of a drunk driver that he defended through this so called loophole.

D.A. forced me to answer a question pertaing to piror convivtion

she ( knowing of my conviction 12 yrs. prior) Asked me on the stand if I had experience with the finger to nose test. when i camly said i had seen it on reality tv shows, she continued with it by asking if i had any personal experiece with performing the test. i didn't want to purjer myself by sayng no - but i also thought she wasn't allowed to allude her questioning torwards eliciting my disclosure of a prior dwi charge. My slackass lawyer didn't object. i had to answer yes. the district court judge had to weigh this in his judgement of this case. Because the officer's account of the nose to finger test wasn't remembered, and i did remember it in detail; the state asked me about any other past experiences - from which to get this "memory". knowing i had a past experience.- and compromising the judge's impartiallity on th ruling. This disclosure implying my prior - hung me my attorney also failed to capitalize on errors and inconsistencies in the officers reports. Worst of all, my slack (11th hour) attorney didn't enter into evidence(my audio recordings of) the questioning portion of my arrest - during which the officer testified my being beligerrant and combative. My recording (i just happened to have a dvr when arrested) directly contradicts his claim. The D.A. also embellished the trooper's testimonty, saying he'd said his alcosensor was part of his determining my being drunk 3-4 times. He only said it once, and testified to only submitting it once, as well. The D.A also stated in her final statements to the judge that i'd agreed in my testimony to the officer's claim of hopping on the one leg stand. i never had agreed, and actually testified to having performed it perfectly. what to do??

What to do???

Are you kidding? The simple answer would be to stop driving while intoxicated. Here is something else you might want to consider, if you do drive while impaired, man up in court and tell the truth. Stop looking for ways out, either you did or you did not. I would put good money that you DID.

Is District Attorney taking under 21 college kids off the street

District Attorney Ben David may have some influence over the nominations for the Mothers Against Drunk Drivers yearly awards for law enforcement officers. The top cops usually have multiple underage one beer drinking college kids they sit and bust pulling out from UNCW campus housing. That is hardly the DWI's that MADD steers their campaigns to take off the streets... the ones that kill people, everyone knows who they are, the 5, 6 and 7th habitual DWI offender who has spent time in prison, has no license, has his car in his mother's or wife's name and is still out driving around drunk.