Brad Interview Transcript 4

BH – Brant Hart

BS – Brad Smith

BS: Well the answer to that question is that when you are in the state of North Carolina the DWI laws are the exact same from county to county as it is a state law. If you get charged with driving while impaired in Mecklenburg county, or Gaston county or Lincoln county the law is the same. The judges and prosecutors are going to be different, and the way in which the judges sometimes view the law, and the way that the prosecutors prosecute the law, and most frequently the way in which judges sentence on the law does change from county to county. It's generally based on sort of, I guess the easiest way to say it is it's based on the political ideology of the county. Now South Carolina's laws are different from North Carolina's. South Carolina's DWI laws are actually substantially different. But the biggest difference is when you are charged with something like this in South Carolina, and I'm not licensed to practice law in South Carolina, but just based on speaking with lawyers down there and having clients that have of course faced this charge down in South Carolina. When you get charged with a traffic related offense, which driving while impaired, or DUI as I believe it is called in South Carolina is a traffic offense. In South Carolina you go into magistrate's court. In Magistrate's court there is not a solicitor that is assigned to the court room, there is a magistrate judge and the officer that has charged you with the offense actually takes on the duty of prosecuting you as well as being essentially the chief witness or the chief investigator in the case which is sort of a very unique circumstance. Now in South Carolina if you hire an attorney or even if you don't you can ask for a hearing or trial in their state level trial court and that would be where a jury is placed into a box and have a full hearing on the record. But the largest distinction between North and South Carolina is the fact that the court of original jurisdiction for a DUI case is this Magistrate's court, there is actually not even a prosecutor handling the case.

BH: Okay we do appreciate you giving us that information and I'm sure if any of our South Carolina listeners needed someone in that particular area to help them that they could get in touch with you and you could probably help them to find an attorney to help them in South Carolina.

BS: Certainly, certainly yes.

BH: Alright, another question here and I think a lot of people would wonder about this: Do I have the right to record the interaction with the officer?

BS: You absolutely do. It's funny because a lot of people are under the impression that unless you have the permission of a police officer to record an interaction that you can't do it. Now, were moving in a direction fortunately that police officers have videos inside their automobiles, they have microphones on their utility belt, the hope is that they would always record any sort of interaction that they are having. The reality of the situation is despite this technology it's amazing how many times you go into court and that video wasn't working, or it wasn't turned on, that's usually the excuse. The biggest thing you will find that a lot of times keeps any sort of criminal investigation honest is your ability to record exactly what is happening out there. You don't ever usually want to be put in a situation under any circumstance where it is your word against another person, or frankly where it is your word against a police officer. We all now have these smart phones that have cameras and video recorders on them and I always tell people don't be afraid to use them. Don't be afraid to take them out and record the interaction. I don't think it's being rude I don't think that you are suggesting that you are trying to catch somebody in some sort of bad circumstance, but recording an interaction is the easiest way to keep the interaction honest. Because if you ever have to go back and say well this is what happened your not having to rely on just your word you have the ability to rely on a live recording with sound as well as, at least my phone and many smart phones have the ability to record like a camcorder. I encourage people all the time to not be bashful about recording an interaction, I think that is something that people should certainly do when they are faced with any sort of interaction with law enforcement.

BH: Okay Brad, and the next question, and I think a lot of people are really interested to know this particular one: Am I required to submit to field sobriety tests or the intoxilizer alchosensor breath test or can I refuse to participate in any testing?