New DWI Laws Created Loopholes

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.