 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
North Carolina v. Ham3/17/1992
WALKER, Judge.
In order to sustain a dismissal of a charge under G.S. 20-138.1(a)(2) North Carolina law requires a defendant to show a substantial statutory violation and prejudice arising therefrom. State v. Eliason, 100 N.C. App. 313, 395 S.E.2d 702 (1990). In ascertaining whether there was a substantial violation of defendant's right of access to counsel and friends three statutes are applicable: G.S. 15A-511(b), G.S. 15A-533(b) and G.S. 15A-534(c). The magistrate is required to inform the defendant of the charges against him, his right to communicate with counsel and friends, and to establish the conditions under which he can post bond and be released.
In this case the procedures followed by the magistrate are not at issue, but rather defendant contends the confusion and misunderstanding as to the terms of release denied him access to friends and witnesses and the opportunity to gather evidence. He argues he was therefore prejudiced since there was a responsible adult who could have posted bond and secured his release. The State contends that the trial court committed error in determining defendant's right of access to witnesses and friends had been denied and that lack of access was the result of the actions of the defendant or inadvertence on the part of others. Further, the State argues it is not required to insure the defendant obtains access to friends and witnesses so that he has failed to show any violation of law or prejudice.
Since this case arises under G.S. 20-138.1(a)(2), a violation of defendant's statutory rights is not per se prejudicial. State v. Knoll, 322 N.C. 535, 545, 369 S.E.2d 558, 564 (1988)
Under the current 0.10 statute, a defendant's only opportunity to obtain evidence is not lost automatically when he is detained,
and improperly denied access to friends and family. Prejudice may or may not occur since a chemical analysis result of 0.10 or more is sufficient, on its face, to convict.
Id. In State v. Dietz, 289 N.C. 488, 493, 223 S.E.2d 357, 360 (1976), the Court stated that to establish such prejudice and thereby be entitled to relief:
Defendant must show that lost evidence or testimony would have been helpful to his defense, that the evidence would have been significant, and that the evidence or testimony was lost.
A defendant is no less prejudiced, though, simply because his statutory rights were violated through inadvertence. State v. Knoll at 548, 369 S.E.2d at 565.
Here, the trial court made the following findings:
18. That the failure to release Mr. Ham on the posting of $100 bond by a sober adult into his custody prior to 10:00 was through inadvertance sic;
19. That the failure to release was not a denial by the magistrate of the setting of conditions of pretrial release, but resulted in confusion arising from the various terms and conditions of release set forth in the release order;
20. That the defendant was denied the constitutional right of access to witnesses and friends consistent with the Court's opinion in State v. Knoll, and for these reasons, the Court is going to allow the motion to dismiss the charge.
The court concluded as a matter of law that the confusion and miscommunication resulting in defendant's continued confinement prejudiced him. The record contains no findings by the court that defendant made a sufficient showing of impairme
Page 1 2 3 North Carolina DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|