9 Investigates: Technicality with arrest processing can lead to dismissal of DWI charges

CHARLOTTE, N.C. — Ryan McCarter was stopped by police last May after leaving an Uptown bar.

"I went to my car, driving down the street and got picked up," McCarter said.

He was arrested and charged with driving while impaired. McCarter said he was given multiple breath tests. The final result was a 0.11 percent blood-alcohol level. The legal limit is 0.08 percent.

McCarter told Eyewitness News he was not driving drunk.

Brad Smith, McCarter's attorney, said McCarter arrived at the jail at 3:20 a.m. and was given an unsecured bond by a magistrate two hours later, but wasn't released until 3:45 p.m. that afternoon --- more than 12 hours after his arrest.

When someone is arrested on suspicion of DWI, the state's case against them is typically based on the results of a breath test.

The 1988 case State vs. Knoll found defendants have the right to gather witnesses and collect their own breath or blood tests as evidence in their defense within a reasonable amount of time after their arrests. Smith said McCarter wasn't given that reasonable amount of time and filed a Knoll motion on his behalf. The case was dismissed last month.

Sheriff Chipp Bailey believes the Knoll motion allows people who could be guilty of drunken driving to get off on a technicality.

"There is no time frame in the Knoll motion," Bailey said. "There has been a time set in Mecklenburg County that if you don't get it done in three hours then it could constitute in dismissal."

Smith believes it takes so long for some clients to get released from jail because in Mecklenburg County arrestees are booked into the jail first then go to a magistrate after, a system Bailey said was created in the 1980s.

"If we are going to do things the way the law is written and how it's supposed to be done, then it's a process that needs to be changed," Smith said.

Bailey said there have been delays in processing arrestees. He said times increased after the arrest processing center moved from Uptown to jail north before the Democratic National Convention and again when the county implemented new software earlier this year.

The sheriff predicts the processing times will drop to three hours or less when the renovated processing center reopens in Uptown this summer.

As a part of the revamp, suspects will see a magistrate before being booked into jail.

"We are going to do what we can do to take that Knoll motion opportunity away from them," Bailey said.

Smith said he will continue to file Knoll motions if his clients' constitutional rights are violated.

"There is a legal way to conduct a criminal investigation the law applies to both sides," Smith said.

The new arrest processing center is set to open by June 1.

To read the dismissal documents in this case, click here.

To read the Sheriff office response, click here.

WSOC