Brad Interview Transcript

BH – Brant Hart

BS – Brad Smith

BH: And first of all today we have with us Brad Smith he is the managing member of Arnold & Smith, PLLC based in Charlotte. Brad was born and raised right here in Charlotte, attending Charlotte Country Day school and went on to North Carolina State University and Mercer in Atlanta for law school. Following law school he worked for the Mecklenburg County District Attorney's office prosecuting both felony and misdemeanor cases until 2006 and then he left the public sector and entered private practice. In 2007 Brad and Matt Arnold, another Charlotte native founded Arnold & Smith, PLLC. Since going into private practice Brad has focused his practice primarily on DWI and criminal defense work as well as appellate and personal injury cases. During his nearly ten years as an attorney he has been awarded numerous honors including back to back National Trial Lawyers association top 100 trial lawyers and top 40 under 40 awards. In 2013 he was voted the Best Lawyer in Charlotte by the Charlotte Observer's Readers' Choice publication.

Brad, we are so glad to have you with us here this morning on the legal forum. And first of all we would like to ask you what are the most common mistakes people make when being stopped by a police officer?

BS: Well Brant thanks for having me first off. Um, most common mistakes people make, I think probably the most common mistake somebody makes is when a police officer pulls them over they are under the immediate impression that they have to do everything that an officer asks, everything. In other words if an officer asks them to blow into a machine that they don't want to blow into, make some sort of admission that they don't want to. When you are pulled over to the side of the road you are not under arrest you are just being temporarily detained so to speak, so that an officer can conduct some sort of investigation on you.

BH: Okay, and if a person is arrested, what should they expect after being put in the back of a police car?

BS: Well I guess the first thing that they should expect is that they are going to jail. But if we are talking in the context of for driving while impaired, what they can expect is they are going to be taken down to the police station and they are going to be asked to blow into the breath instrument that the state of North Carolina uses, it's called the Intoxilizer ECIR2. So they are going to be asked to submit to a test of their breath.

BH: Okay, and what should a person do, or not do if they are arrested?

BS: Well, the most difficult part about a driving while impaired case is that you are asked to blow into this machine, the Intoxilizer ECIR2, It's the only real type of forensic evidence in our justice system that I can think of where when you blow into the breathalyzer, your breath test isn't saved, it's not put into property control, it's not taken somewhere that at a later date if you don't trust the reading that the machine produced that you can go and retest your breath sample to see what your breath concentration was. So, your only ability really to rebut a breath test is to get out of jail within some reasonable period of time and go and obtain your own test. So if you've been drinking, if you've been arrested for driving while impaired, probably presumably it's because you have already submitted to a roadside test of some sort that is ultimately not admissible into court, and probably your smartest thing you could do at that point is to probably not blow into the breath test machine. A lot of people think, a lot of clients that I have, when I ask them why did they blow into this instrument that they don't know anything about, generally what they have to say is, well the police officer asked me. And again just because the officer asks you to do that it's not necessarily something you are required to do, in fact it's not something you are required to do at all. And the biggest trouble with breath testing is as I've said it's your ability to rebut that test, it prints out a receipt and that's generally the only thing the state uses when prosecuting you to show that you are guilty of the offense.

So your question was, what can you expect? You can expect to be asked to blow into a breath test machine and is it the best thing always to blow into the machine and the answer generally to that is no.