Berger still at large under OFA

by Sam Wilson
Wednesday, January 29, 2014

Following a failure to appear in court Jan. 23 for a Dec. 6 possession of a Schedule II substance charge, New Hanover County Commissioner Brian Berger was issued a warrant for his arrest by district court Judge Sandra Ray.

Berger’s attorney, Buddy Allard, said outside the courtroom he was unable to say whether Berger’s absence would be excused, but if the court does not find the reason for his absence acceptable, Berger will have to pay a $25,000 secured bond to stay out of jail.

Samantha Dooies, a spokeswoman for the district attorney’s office, said Jan. 27 the judge would have final say as to whether Berger’s absence is excused.

“Typically it’s if he can prove [his excuse] such as incarceration, which is usually the reason,” Dooies said. “We try to be reasonable, but at the same time you still have to have proof.”

Neither Berger nor Allard returned repeated requests for updated information regarding Berger’s absence.

The charge stems from an incident that occurred Dec. 6, 2013, at 12:47 a.m., when police found Berger unconscious inside his car on Masonboro Loop Road. He was found with three Schedule II prescription drugs.

Allard said the possession charge is for one of those drugs, all of which he said were half-doses inside the same pill bottle, for which the county has probable cause that Berger did not have a legal prescription.

Allard said Berger had prescriptions for the other two drugs.

Once Berger resolves his failure to appear charge, a new hearing date will be scheduled for his possession charge.

Berger’s next court date was scheduled for Jan. 29, but will be rescheduled due to weather-related court closings. As of press time no new date had been set.

Berger will face a separate DWI charge from Dec. 18, 2012. He was stopped in downtown Wilmington at 2 a.m. for an unsafe movement violation. At the time of the arrest, Berger’s blood-alcohol concentration was 0.08 percent, the legal limit in North Carolina.

The hearing has been continued multiple times as Allard requested an outside judge be brought in to hear the case, citing the commissioner’s high profile in the county. The prosecution has also had to continue the case to subpoena the arresting officer, who has relocated to New Jersey since the arrest.

Dooies said the district attorney’s office has received the results of blood tests to determine if Berger also had trace amounts of other drugs in his system at the time of his arrest, but declined to comment further.

If arrested for failure to appear, it will be the commissioner’s fifth arrest in the past three years. Berger was first arrested June 10, 2011, on assault charges after he allegedly ripped a door handle off his ex-girlfriend’s car. Those charges were later dropped.

In Nov. 2011 Berger was arrested for allegedly violating a restraining order held by his ex-girlfriend. 

In 2013 Berger was briefly removed from the board of commissioners beginning May 20, after his fellow board members found him unfit for public office during an amotion hearing. He then appealed the decision, and was reinstated to the board Sept. 5 after a superior court found comments made by fellow commissioners during the hearing violated due process.

However, the judge left open the possibility of the board holding another amotion hearing. Board Chairman Woody White has declined to say whether the board will pursue another amotion process. Berger’s term expires after this year’s countywide elections in Novermber. Berger has not indicated whether he will run for reelection.


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