By Megan V. Williams and Catherine Welch
http://stream.publicbroadcasting.net/production/mp3/whqr/local-whqr-650017.mp3
Wilmington, NC – Say one dark night a police officer pulls you over on suspicion of drunk driving. Say you fail the tests and get arrested. One of the next people you are going to see is a local magistrate, who will approve your arrest, set your conditions of release, and inform you of your rights.
"DWI cases are unique cases because the evidence in DWI cases, the defendant only has a very limited opportunity to gather evidence on his own behalf."
Wilmington lawyer Lawrence Shotwell represents people accused of drunk driving. He says those who can't pay their bail immediately face the added burden of trying to gather their evidence from inside a jail cell.
"And the state, being the magistrate, has to inform the defendant that he does have the right to have witnesses come and observe his condition and get the subsequently chemical analysis."
Shotwell says it used to be hard to prove when a magistrate asn't telling defendants about their rights. But an overhaul of North Carolina's Driving While Intoxicated laws last year now requires both the magistrate and the accused to fill out a form covering those rights.
Only, in New Hanover County, Shotwell says, that form wasn't being used.
"It was really like the clouds parted and the sun shown down on me that said, okay, here it is, here's exactly what you had been looking for."
Local judges apparently agreed. Since this spring, judges in New Hanover, Pender and Brunswick counties have dismissed scores of cases under the so-called 'Shotwell Motion.'
This defense only covers a small fraction of DWI cases, when the accused is stuck in jail, but it could add up to hundreds of cases over the law's first six months.
District Court Judge John Carroll was in charge of the county's magistrates when the new form went into effect. He says he informed them of the change, but...
"You know the old expression, you can lead a horse to the water, but you can't make them drink. They all knew it was supposed to be done. Whether or not they did it, obviously they didn't. Or not all of them."
Everyone involved agrees that since the loophole came to light, magistrates have become diligent users of the required form.
Julius Corpening, who took over as New Hanover County's Chief Judge in August, says the situation changed how the county trains its magistrates, stepping up their education on new laws.
"And we've also worked on some policies with the jail and through the district attorneys office just trying to make sure that everything that's required by the statute is in compliance now. It's obviously a very important issue to us and we're doing our best now to make sure that there aren't any more technicalities."
But Corpening has some sympathy for the magistrates confused by changes to the drunk driving law.
"The form, the statute, the process that it creates, is almost nightmarish, and so, I think it's fair to say that it's frustrating for everybody that it's touched so far."
New Hanover County isn't the only place where magistrates got snagged on this particular technicality.' Dick Ellis, spokesperson for the North Carolina Administrative Office of the Courts, says the AOC has found two or three other counties where defense attorneys used a missing form to argue for dismissal.
But Ellis says in those cases, the judges would have none of it.
"They said, it was a procedural error, the defendant was not prejudiced nor harmed by the magistrate forgetting to put a piece of paper into the case file, so therefore it was not grounds to throw the whole DUI case out of court."
The North Carolina Supreme Court has ruled that when the courts break their administrative rules - things like, people must get their first court date within four days of being arrested - it's not a big enough violation to automatically dismiss the case. It's an argument, Ellis says, that will mostly likely be heard soon in New Hanover's Superior Court.
"It is our understanding that the state plans to appeal some or maybe all of these cases, I don't know, possibly next month in New Hanover County."
5th District Attorney Ben David says his office is also appealing some cases on the same grounds.
Which means that soon the question before New Hanover judges may be whether a signature on a form is a vital protection of a defendant's rights or an administrative technicality.
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