The defendant was stopped for travelling 94 MPH in a 65 MPH zone. Upon approach of the vehicle the Trooper claimed to have detected a strong odor of alcohol, as well as noticed slurred speech and red, glassy eyes. Due to these observations the Trooper had the defendant step out of the vehicle to perform standardized field sobriety tests. The defendant’s performance on the tests led the trooper to conclude that the defendant was impaired on alcohol and ultimately the defendant provided a breath sample that was over the 0.08 legal limit. At a hearing, Mr. Marshall was able to show that the trooper never had any legal basis to investigate DWI and should have only handed the defendant a speeding ticket. Mr. Marshall was able to show that the trooper never had an opportunity to smell the odor of alcohol, nor determine that the defendant’s eyes were red and glassy before investigating the DWI. Mr. Marshall was able to have the court rule that the trooper’s investigation of the DWI was a violation of the defendant’s fourth amendment rights, because the officer moved too slow in dealing with the speeding offense by unlawfully trying to investigate the DWI. As a result of Mr. Marshall’s work, the defendant’s breath test result was kept out of evidence and the DWI was dismissed.
Author Bio
J. RUSSELL W. DeMENT III
RALEIGH CRIMINAL DEFENSE LAWYER
Russell W. “Rusty” DeMent III is a trial lawyer and managing partner at DeMent Askew Johnson & Marshall. A former Wake County Assistant District Attorney, he brings decades of courtroom experience to defending serious criminal charges in both state and federal courts, including DWI, violent crimes, and drug offenses.
Regularly recognized in Best Lawyers in America, Super Lawyers, and Business North Carolina’s Legal Elite, Rusty is a Fellow of the National College for DUI Defense and the Litigation Counsel of America. His legal insight and calm command in high-stakes cases make him a trusted advocate across North Carolina.
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