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Defense lawyer goes after police DWI tactics

Ricardo Velasquez, a Durham lawyer well-versed in his rights, spends most of his time in court trying to help clients weather scrapes with the law.

But last week, Velasquez was the one in trouble. He was accused of resisting, delaying or obstructing an officer for failing to roll down his car window fast enough or far enough at a checkpoint set up near downtown Durham.

With defense lawyer Scott Holmes by his side, Velasquez had hoped to have his day in court. What the attorneys aimed to do was fling open a window to a justice system where complaints about questionable police tactics often are hushed.

But the case was dismissed when R.W. Goswick, the N.C. Highway Patrol officer who lodged the allegations, failed to show up for court.

“It's very easy for some people in law enforcement to abuse their power in a way that hurts vulnerable communities, particularly immigrants or communities of minorities,” Holmes said this week. “Most of the time, when I get clients who say they've been treated this way, I say ‘Who's the judge going to believe? You, the guy with the open container on the floorboard who got his windshield smashed, or an officer of the law?' This is a unique situation where the person this happened to was an officer of the court.”

Efforts to reach Goswick this week were unsuccessful.

Lt. Everett Clendenin, spokesman for the state troopers, was not familiar with the incident.

The case stemmed from a traffic stop on Dec. 9.

Velasquez, 45, was minutes from his home on the edge of Duke University's East Campus. Several bars and restaurants are nearby.

A Durham police officer came up to the driver's-side window and asked Velasquez for his license and registration. Velasquez cracked his window three to four inches, just enough to hand out the two.

“The officers didn't look at my license and registration at all,” Velasquez said. “They told me to roll down my window more.”

Velasquez told the officer that if he was under arrest he would comply with their request, but if not he wanted his license and registration back so he could continue home.

“There's this standard operating procedure,” Velasquez said. “They try to get you to roll down your window so they can search your car and smell your breath even if they don't have probable cause. Our civil liberties have eroded so greatly in these last few years, and I think we really have to hold the line on these kinds of searches.”

Velasquez continued to challenge the officer's request until a state trooper, who was helping local police with the checkpoint, came to his windowside.

“He comes over and tells me my car smells like alcohol, and I'm impeding his investigation,” Velasquez recalled.

Velasquez eventually opened his window wider and the state trooper, he said, reached in, grabbed his arm and put him under arrest.

The officers accused Velasquez of being under the influence of alcohol or other impairing substances. Velasquez said they also were on the verge of charging him with refusing to undergo alcohol breath tests, which would have resulted in an automatic loss of a driver's license for a year.

Velasquez took the test. “I blew a point-zero-zero, which is nothing, because I hadn't had anything in my system,” he said.

Nevertheless, Velasquez was arrested for driving while impaired and resisting an officer.

A magistrate dismissed the DWI charge, saying there was no probable cause.

But Velasquez fought the second charge – not only for himself, he said, but for others who might not have the resources.

“Officers can use these kinds of tactics against people,” Velasquez said, “and then if they overstepped their bounds, they can not show up for court and the case is dismissed and they don't have to answer for their policing tactics.”

Clendenin, the spokesman for the state Highway Patrol, said troopers typically ask drivers to roll down their windows.

“If you cooperate and answer the questions,” Clendenin said, “more than likely you'll be moving right on.”

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