Jail for a DWI in NC?

May 30, 2013 by  
Filed under Uncategorized

Will I go to jail for a DWI in North Carolina?

Most people charged with a DWI in North Carolina are in for a big shock to learn the possible penalties that come with this all too common charge. All DWI sentencing in North Carolina is structured by statute. DWI’s in NC can get you jail time, fines and other costs imposed by the court or the NC DMV.
For instance, even someone with a completely clean driving record and criminal record still face a minimum of 60 days to 24 hour jail sentence for their first DWI conviction. The court does have option for special probationary conditions but is still constrained by this structured sentencing. Talking to a DWI lawyer about sentencing options and realistic outcomes to your case is always helpful.

What is the sentencing range for NC DWI’s? Fines for NC DWI’s?

DWI sentencing for jail time ranges anywhere from 36 months to 24 hours. Fines for DWI’s in NC range from $200 to $10,000.

Why are DWI cases treated differently in North Carolina?

DWI laws in North Carolina are, in many ways, much harder than other states. One reason DWI are treated harder is because District Attorneys don’t have the same latitude to plea a DWI charge down to a lower offense like other states commonly do. The NC law § 20 138.4 makes it very difficult for a DWI charge to be plead down to a lesser charge (reckless driving). The reason DWIs in North Carolina are rarely, if ever, plead down is NC Statute § 20 138.4. This law requires that the prosecutor who reduces or dismisses a DWI charge must provide a detailed explanation in court and must make a written report to their supervisor, the elected District Attorney, and the Administrative office of the Courts (NC AOC). The report to the NC AOC shall be kept as public record in a separate database. This law creates a judicial system in which almost all DWI cases are plead guilty to DWI, Not Guilty after a trial or Guilty after a trial.
When I worked at the Public Defender’s Office many years ago in Virginia, I remember helping clients plead some DWIs down to Reckless Driving. This greatly reduced the penalty and societal judgment associated with having a DWI on your record.
Because, DWI law in NC is so tough, you should always consult a DWI lawyer. A DWI in NC will affect your freedom, your ability to drive, ability to work, ability to take care of your family and cost you a lot of money. And of course there is the social stigma of having a DWI charge on your record (DWI charges can be expunged of your record in some cases). Take into account that even a first time DWI can carry a minimum of 24 hours in jail (special probation conditions can be worked out to do 24 hours of community service).

§ 20 138.4. Requirement that prosecutor explain reduction or dismissal of charge in implied consent case.
(a) Any prosecutor shall enter detailed facts in the record of any case subject to the implied consent law or involving driving while license revoked for impaired driving as defined in G.S. 20 28.2 explaining orally in open court and in writing the reasons for his action if he:
(1) Enters a voluntary dismissal; or
(2) Accepts a plea of guilty or no contest to a lesser included offense; or
(3) Substitutes another charge, by statement of charges or otherwise, if the substitute charge carries a lesser mandatory minimum punishment or is not a case subject to the implied consent law; or
(4) Otherwise takes a discretionary action that effectively dismisses or reduces the original charge in a case subject to the implied consent law.
General explanations such as “interests of justice” or “insufficient evidence” are not sufficiently detailed to meet the requirements of this section.
(b) The written explanation shall be signed by the prosecutor taking the action on a form approved by the Administrative Office of the Courts and shall contain, at a minimum:
(1) The alcohol concentration or the fact that the driver refused.
(2) A list of all prior convictions of implied consent offenses or driving while license revoked.
(3) Whether the driver had a valid drivers license or privilege to drive in this State as indicated by the Division’s records.
(4) A statement that a check of the database of the Administrative Office of the Courts revealed whether any other charges against the defendant were pending.
(5) The elements that the prosecutor believes in good faith can be proved, and a list of those elements that the prosecutor cannot prove and why.
(6) The name and agency of the charging officer and whether the officer is available.
(7) Any reason why the charges are dismissed.
(c) A copy of the form required in subsection (b) of this section shall be sent to the head of the law enforcement agency that employed the charging officer, to the district attorney who employs the prosecutor, and filed in the court file. The Administrative Office of the Courts shall electronically record this data in its database and make it available upon request.

Drug Treatment Court in Wake County, NC

July 10, 2012 by  
Filed under Criminal Law

Charged with a drug crime in Raleigh?… It might be time for Drug Treatment Court

As a Raleigh criminal defense lawyer I see first hand how drug charges can ruin someone’s life. Felony drug charges and misdemeanor drug charges can both devastate your educational options, your career and your social and family life. Having the right Raleigh drug lawyer representing you can make all the difference. A good criminal defense lawyer will take you through the criminal process step by step and explain and guide you toward your best options. One of the more intensive options is called Drug Treatment Court or Drug Court. In Wake County, NC the program is run as a post-conviction option for nonviolent, chemically dependent offenders who truly can benefit intensive treatment and monitoring.

The North Carolina Drug Treatment Court (Article 62 of the NCGS) is an intense court ordered program for non-violent, repeat drug offenders. The program was established in the mid 90’s by the NC legislator’s passage of the “North Carolina Drug Treatment Court Act of 1995.” This drug program is utilized in Raleigh through the Wake County Court system. The Drug Treatment Court program can vary from county to county both in who qualifies and who is required by the participant.

The Drug Treatment Court or “Drug Court” in the Wake County court system offers court ordered treatment plans for chemically dependent adult and juvenile offenders. The basic idea of this program is to get the Judge, District Attorney, Probation Officer, Defense Lawyer, Drug Court Case Manager / Team and the chemically addicted Offender to come together in an effort to give the offender the resources to address their treatment needs. The program holds the defendant rigorously accountable for their behavior while in the program.

The program is meant to last at least one year. It is typical for the Drug Treatment Court team to require frequent court reviews, out-patient treatment, clinical treatment, attendance in support programs like Alcoholics Anonymous and random drug test. Additionally, there can be requirements that the offender must be in school, employed or be required to take additional training/schooling or treatment.

Drug Treatment Court in Wake County, North Carolina

In Wake County the participants begin the drug treatment court program under intensive probation supervision monitored by specially-trained probation officers assigned to the drug treatment court team. As the participants progress through the program, their probation supervision can decrease.

As a criminal defense lawyer in Raleigh, I see how much of a burden drug use and related issues put on our court system. Studies continually show that alcohol and drug use (including related crimes) makes up the majority of the criminal cases in North Carolina. Programs like the North Carolina Drug Court in Wake County have shown they can be successful for the offender and society as a whole. The program has changed and improved since being created in 1995. While programs like this always seem to be on the chopping block when budget cuts are needed, it is important to realize that this program actually saves the state tax payers money. It is cheaper to rehabilitate a nonviolent drug offender in this program’s settings than the huge cost of house someone in jail for the same period.

What is Drug Treatment Court? What is Drug Court?

In 2003, the General Assembly defined Drug Treatment Courts as an Intermediate Sanction under the Structured Sentencing law. Intermediate-level offenders sentenced to Drug Treatment Court are required, as a condition of probation, to comply with program rules, report as required, and to participate in court supervision, drug screening or testing, and drug or alcohol treatment programs.

Per § 7A 791, The General Assembly recognizes that a critical need exists in this State for judicial programs that will reduce the incidence of alcohol and other drug abuse or dependence and crimes, including the offense of driving while impaired, delinquent acts, and child abuse and neglect committed as a result of alcohol and other drug abuse or dependence, and child abuse and neglect where alcohol and other drug abuse or dependence are significant factors in the child abuse and neglect. It is the intent of the General Assembly by this Article to create a program to facilitate the creation of local drug treatment court programs and driving while impaired (DWI) treatment court programs.

What are the stated goals of the Drug Treatment Court as stated in § 7A 792.

1. To reduce alcoholism and other drug dependencies among adult and juvenile offenders and defendants and among respondents in juvenile petitions for abuse, neglect, or both;
2. To reduce criminal and delinquent recidivism and the incidence of child abuse and neglect;
3. To reduce the alcohol-related and other drug-related court workload;
4. To increase the personal, familial, and societal accountability of adult and juvenile offenders and defendants and respondents in juvenile petitions for abuse, neglect, or both; and
5. To promote effective interaction and use of resources among criminal and juvenile justice personnel, child protective services personnel, and community agencies.

Do we really need Drug Treatment Court?

Yes! A study of our court system in 2009 established that more than half of all the criminal cases before the court involve alcohol or drug addicted people. The study showed that in 2008 we had 202,942 drug-related charges in the North Carolina court system and 72,867 DWI charges. These do not include approximately one million additional criminal cases such as assault, breaking and entering, and larceny that were committed under the influence of alcohol and drugs or committed to support the offender’s addiction.

Who Manages the Different Drug Treatment Courts in Each NC County?

Each judicial district choosing to establish a drug treatment court shall form a local drug treatment court management committee, which shall be comprised to assure representation appropriate to the type or types of drug treatment court operations to be conducted in the district and shall consist of persons appointed by the senior resident superior court judge with the concurrence of the chief district court judge and the district attorney for that district, chosen from the following list:
(1) A judge of the superior court;
(2) A judge of the district court;
(3) A district attorney or assistant district attorney;
(4) A public defender or assistant public defender in judicial districts served by a public defender;
(5) An attorney representing a county department of social services within the district;
(6) A representative of the guardian ad litem;
(7) A member of the private criminal defense bar;
(8) A member of the private bar who represents respondents in department of social services juvenile matters;
(9) A clerk of superior court;
(10) The trial court administrator in judicial districts served by a trial court administrator;
(11) The director or member of the child welfare services division of a county department of social services within the district;
(12) The chief juvenile court counselor for the district;
(13) A probation officer;
(14) A local law enforcement officer;
(15) A representative of the local school administrative unit;
(16) A representative of the local community college;
(17) A representative of the treatment providers;
(18) A representative of the area mental health program;
(19) Any local drug treatment coordinator; and
(20) Any other persons selected by the local management committee.
The local drug treatment court management committee shall develop local guidelines and procedures, not inconsistent with the State guidelines, that are necessary for the operation and evaluation of the local drug treatment court.

Why are Drug Treatment programs important?

1. They help chemically addicted offenders rehabilitate themselves into drug and crime free productive members of society.
2. The program saves North Carolina tax payers money by rehabilitating these offenders out of the jail and correctional system. Also, the offender is required by statute to help pay for the cost § 7A 800. (Each defendant, offender, or respondent in a juvenile petition for abuse, neglect, or both, who receives treatment under a local drug treatment court program shall contribute to the cost of the alcohol and other drug abuse or dependency treatment received in the drug treatment court program, based upon guidelines developed by the local drug treatment court management committee.)

How does someone successfully complete Drug Court?

In order to successfully complete Drug Treatment Court, the usual requirements include: offender must have successfully completed all phases of clinical treatment, received clean urine screens during the prior months, be employed/school, be paying regularly towards their legal obligations (child-support, taxes and court costs), have no new criminal behavior while in the program, fulfill all other program requirements and be nominated for graduation by the drug treatment court team.

I have been arrested and charged with a drug offense in Wake County, what do I do now? How will this drug charge affect my job or school?

Drug charges are serious and can carry long active jail sentences or probation. The consequence of drug charges on your employment and your schooling can be very serious too. It is important to contact a criminal defense lawyer to review your drug case and explain your option and possible solutions. Eric Gurney is a drug lawyer in Raleigh, NC and handles Misdemeanor and Felony drug charges in Wake County, NC. The Gurney Law Firm handles drug charges and getting drug charges expunged off your criminal record. It is important that your criminal defense lawyer reviews your criminal charges and determines if you are eligible to have your charges expunged after your case is disposed.

Can I have drug charges expunged off my criminal record in North Carolina? What about drug charges in Raleigh and drug charges in Wake County?

Yes. In certain circumstances you can have drug charges expunged off your criminal record. Eligibility for expungement of drug charges should be assessed by your criminal defense lawyer. If you have been charged with a drug crime in Wake County, contact The Gurney Law Firm for criminal defense and expungement of your criminal record. Getting drug charges and/or marijuana charges expunged off your criminal record can make a huge difference in someone’s life that is applying for school, college and jobs. Contact The Gurney Law Firm to talk to a Raleigh expungment lawyer.

What are the most common drug charges? Can I be eligible for Drug Treatment Court with these charges? What about DWIs in NC?

You may be eligible for Drug Treatment Court for most types of drug charges, but it will need to be reviewed by your criminal defense attorney and worked out with the District Attorney’s Office. Each county can vary the criteria for who qualifies for the program based on prior criminal history and the current charges. Some counties may allow for DWI offenders to get treatment through this program.

Also remember that Drug Treatment Court is not a “Right.” No one is entitled for this treatment program and that’s why it is important to work with a criminal defense attorney who can fight for your eligibility.

Some of the most common types of drug charges in North Carolina are:

§ 20 138.1 Impaired driving DWI
Possession of Marijuana / Sale of Delivery of Marijuana
Possession of Synthetic Cannabinoids / Sale of Delivery of Synthetic Cannabinoids
Possession of Cocaine / Sale of Delivery of Cocaine
Possession of Methamphetamine / Sale of Delivery of Methamphetamine
Possession of Amphetamine / Sale of Delivery of Amphetamine
Possession of MDPV / Sale of Delivery of MDPV
Possession of MDMA / MDA / Ecstasy / Sale of Delivery of MDMA / MDA / Ecstasy
Possession of Opium or Heroin / Sale of Delivery of Opium or Heroin
Possession of LSD / Sale of Delivery of LSD
Possession of Toxic fumes / Sale of Delivery of Toxic fumes
Trafficking in MDMA Ecstasy
Trafficking in MDA
Trafficking in Marijuana
Trafficking in Cocaine
Trafficking in Heroin
Counterfeit Controlled Substance Offenses
Drug Offenses involving Minors
Drug Related Continuing Criminal Enterprise Charges
Controlled Substance Offenses Involving Fraud, Misrepresentation, or Similar Activities
Maintaining a Dwelling or Vehicle for Use, Storage or Sale of a Controlled Substances
Possession of Drug Paraphernalia
Toxic Fume Offenses (Inhaling Toxic Fumes)

When you are charged with a Drug offense you should always consult with a criminal lawyer. They will be able to review your case and guide you to your best options. That can mean taking your case to trial or resolving in other ways. If you have been charged with a felony or misdemeanor drug offense, call The Gurney Law Firm at (919) 930-4027.

RDO Resisting, Delaying, or Obstructing an Officer in North Carolina 14-233

June 13, 2012 by  
Filed under Uncategorized

Resisting, Delaying, or Obstructing an Officer (also referred to as RDO) in North Carolina is punished as a Class 2 Misdemeanor under the North Carolina General Statute 14-223. This is a commonly charged crime in North Carolina and Wake County because it covers a very wide array of behavior. The general idea behind this crime is to outlaw the willful acts of a citizen that are meant to hinder a police officer’s duty or investigation. The state legislator by enacting this statute (14-223) attempts, and succeeds in many ways, to give police agencies across the state broader power and ease of investigating crime and enforcing state laws.

The North Carolina General Statute describes RDO as; if any person shall willfully and unlawfully resist, delay or obstruct a public officer in discharging or attempting to discharge a duty of his office. The NC General Statute 14-233 is broad, both in the legal interpretation (Scope of the law) and its legislative intent. Even though the statute is broad, the courts have ruled that it is not unconstitutionally vague.

Because RDO 14-233 is a Class 2 Misdemeanor, a convicted defendant of this crime can be punished up to 60 days of active jail time. Because of the risk of active jail time and potential harm to your criminal record, employment status, education status and social status, you should always consult a criminal defense lawyer if you are charged with RDO. If you have been charged in Wake County or the Triangle consider contacting The Gurney Law Firm for an evaluation of your case. Because there are many complexities and grey areas of this charge it is wise to explore your options with a Raleigh Criminal Lawyer.

This charge, even though it seems very simple, can bring about very complex issues with Freedom of Speech, Freedom of Association, Property Rights and other important liberties protected under the United States Constitution and the North Carolina Constitution. This charge can bring about the intersection of your constitutional rights and the states police power – interest and ability in investigating and arresting.

Why is RDO such a commonly charged crime in North Carolina?

The charge of RDO is brought against people in all different segments and backgrounds of society in large part because the statute is vague in its description of what constitutes “Resisting, Delaying, or Obstructing an Officer.” The North Carolina General Statute describes RDO as – If any person shall willfully and unlawfully resist, delay or obstruct a public officer in discharging or attempting to discharge a duty of his office. Just by the language of the statute, 14-233, it is hard to narrow down exactly what behavior constitutes RDO.

Is RDO the same charge as “Resisting Arrest?”

Different states will define and name similar laws in different ways. Some states have a law referred to as “Resisting Arrest” or something similar. For many practical purposes these types of laws cover the same category of unlawful behavior when interacting with an officer. However, North Carolina’s version of the “Resisting Arrest” type of law is broader both in the legal interpretation (Scope of the law) and legislative intent. In North Carolina, RDO covers not just the arrest but also the investigation by law enforcement (this is covered by the “…delays, or obstructs” portion of the statute.)

Is it illegal to curse at a police officer in NC? Can I question a police officer in NC? Is it illegal to lie to a police officer in NC?

This is the above mentioned intersection of Constitutional Rights and the State’s interest in protecting and helping police officers in arrests and investigations. The United States Constitution protects your 1st Amendment right to Freedom of Speech. But there are limits to this right (Consider the age old example of yelling fire in a crowded movie theater.)

Putting aside all the constitutional debate and discussion (which I would love to write about and talk about all day long!)…. It is important to know that you can absolutely question and criticize an officer while he is performing his duty when done in an orderly manner and it does not resist, delay or obstruct. Actually, this type of act is a healthy check on the states police power and helps our democratic society operate better. This does not protect speech considered to be disorderly cursing and threatening langue directed toward the officer. And it is illegal to lie to an officer while he is performing his duty (You can’t give the officer a false name).

Do I have to give my name and social security number to a police officer in North Carolina?

It depends… but generally under current North Carolina Law, a person under certain circumstances is not required to provide an investigating police officer with their name and/or social security number. Not providing this information does not appear to be covered by the RDO Statute.

Is it illegal to run from the police in North Carolina?

It depends… mainly on the conduct of the police officer. A citizen always has the right to resist an unlawful arrest. Also, the courts have ruled that running from an officer is not RDO when the officer could not articulate reasonable suspicion to stop that individual. If no reasonable suspicion of a crime exists during a police encounter, then the meeting is considered consensual and any flight from the stop cannot constitute resisting an officer.

If you have been charged with RDO in Raleigh or Wake County you should contact The Gurney Law Firm. Eric Gurney is a former Wake County Magistrate Judge and founded the criminal defense law firm in Raleigh, NC to protect the rights of those accused of crimes in Wake County. The Gurney Law Firm handles misdemeanors and felonies charged in Wake County and expungement of your criminal record across the state. Please remember that the content on this site is not meant to be legal advice and that all criminal cases are different. That is why it is important to have a criminal defense attorney review your case and explain your options.

Assault on a Female in Wake County § 14-33

April 24, 2012 by  
Filed under Uncategorized

Charged with Assault on a Female in Wake County § 14-33?

One of the more common Domestic Violence charges in Wake County, NC is the charge of Assault on a Female G.S. 14-33. This criminal offense is generally charged in connection with a dispute between a husband / wife or boyfriend / girlfriend. Because this charge is more often than not associated with a domestic relationship, the investigating police agency and the Wake County District Attorney’s Office take it very seriously.

Assault on a female is a misdemeanor charge in North Carolina. It is a Class A1 Misdemeanor under the NC Misdemeanor Sentencing Guidelines. Under these guidelines a Class A1 Misdemeanor has a maximum sentence of a 150 day active jail sentence.

If you have been charge with this crime it is important to discuss the situation with your attorney. The risk of jail time and the social stigma of “Assault on a Female” is nothing to take lightly.

To be charged with Assault on a Female in North Carolina you must be alleged to have been at the time of the assault
1.) A male at least 18 years old
2.) Committed an Assault and
3.) The victim must have been a female.

§ 14 33. Misdemeanor assaults, batteries, and affrays, simple and aggravated; punishments.

(a) Any person who commits a simple assault or a simple assault and battery or participates in a simple affray is guilty of a Class 2 misdemeanor.
(b) Unless his conduct is covered under some other provision of law providing greater punishment, any person who commits any assault, assault and battery, or affray is guilty of a Class 1 misdemeanor if, in the course of the assault, assault and battery, or affray, he:
(1) through (3) Repealed by Session Laws 1995, c. 507, s. 19.5(b);
(4) through (7) Repealed by Session Laws 1991, c. 525, s. 1;
(8) Repealed by Session Laws 1995, c. 507, s. 19.5(b);
(9) Commits an assault and battery against a sports official when the sports official is discharging or attempting to discharge official duties at a sports event, or immediately after the sports event at which the sports official discharged official duties. A “sports official” is a person at a sports event who enforces the rules of the event, such as an umpire or referee, or a person who supervises the participants, such as a coach. A “sports event” includes any interscholastic or intramural athletic activity in a primary, middle, junior high, or high school, college, or university, any organized athletic activity sponsored by a community, business, or nonprofit organization, any athletic activity that is a professional or semiprofessional event, and any other organized athletic activity in the State.
(c) Unless the conduct is covered under some other provision of law providing greater punishment, any person who commits any assault, assault and battery, or affray is guilty of a Class A1 misdemeanor if, in the course of the assault, assault and battery, or affray, he or she:
(1) Inflicts serious injury upon another person or uses a deadly weapon;
(2) Assaults a female, he being a male person at least 18 years of age;
(3) Assaults a child under the age of 12 years;
(4) Assaults an officer or employee of the State or any political subdivision of the State, when the officer or employee is discharging or attempting to discharge his official duties;
(5) Repealed by Session Laws 1999 105, s. 1, effective December 1, 1999; or
(6) Assaults a school employee or school volunteer when the employee or volunteer is discharging or attempting to discharge his or her duties as an employee or volunteer, or assaults a school employee or school volunteer as a result of the discharge or attempt to discharge that individual’s duties as a school employee or school volunteer. For purposes of this subdivision, the following definitions shall apply:
a. “Duties” means:
1. All activities on school property;
2. All activities, wherever occurring, during a school authorized event or the accompanying of students to or from that event; and
3. All activities relating to the operation of school transportation.
b. “Employee” or “volunteer” means:
1. An employee of a local board of education; or a charter school authorized under G.S. 115C 238.29D, or a nonpublic school which has filed intent to operate under Part 1 or Part 2 of Article 39 of Chapter 115C of the General Statutes;
2. An independent contractor or an employee of an independent contractor of a local board of education, charter school authorized under G.S. 115C 238.29D, or a nonpublic school which has filed intent to operate under Part 1 or Part 2 of Article 39 of Chapter 115C of the General Statutes, if the independent contractor carries out duties customarily performed by employees of the school; and
3. An adult who volunteers his or her services or presence at any school activity and is under the supervision of an individual listed in sub sub subdivision 1. or 2. of this sub subdivision.
(7) Assaults a public transit operator, including a public employee or a private contractor employed as a public transit operator, when the operator is discharging or attempting to discharge his or her duties.
(8) Assaults a company police officer certified pursuant to the provisions of Chapter 74E of the General Statutes or a campus police officer certified pursuant to the provisions of Chapter 74G, Chapter 17C, or Chapter 116 of the General Statutes in the performance of that person’s duties.
(d) Any person who, in the course of an assault, assault and battery, or affray, inflicts serious injury upon another person, or uses a deadly weapon, in violation of subdivision (c)(1) of this section, on a person with whom the person has a personal relationship, and in the presence of a minor, is guilty of a Class A1 misdemeanor. A person convicted under this subsection, who is sentenced to a community punishment, shall be placed on supervised probation in addition to any other punishment imposed by the court.
A person committing a second or subsequent violation of this subsection shall be sentenced to an active punishment of no less than 30 days in addition to any other punishment imposed by the court.
The following definitions apply to this subsection:
(1) “Personal relationship” is as defined in G.S. 50B 1(b).
(2) “In the presence of a minor” means that the minor was in a position to have observed the assault.
(3) “Minor” is any person under the age of 18 years who is residing with or is under the care and supervision of, and who has a personal relationship with, the person assaulted or the person committing the assault.

Embezzlement charge in Wake County North Carolina § 14-90

February 10, 2012 by  
Filed under Criminal Law

Embezzlement charge in Wake County North Carolina § 14-90

The charge of Embezzlement § 14-90 is one of the more common financial crimes charged in Wake County, North Carolina. The charge of Embezzlement is usually an accusation by an employer that an employee fraudulently used or took money / cash or company property that the employee was entrusted with and used it in a manner that they were not allowed.

Embezzlement is a very serious crime in North Carolina. In most cases an Embezzlement charge in North Carolina will be punished as a Class H Felony. Under current felony sentencing structure in North Carolina a class H felony has a maximum punishment of 25 months active per charge. The felony sentencing in North Carolina is guided by the defendant’s prior record level and can vary greatly depending on which felony sentencing level the defendant falls under. In cases where the amount of funds (or value of property) is more than $100,000 the Felony Class goes up to a level C Felony. A Class C felony in North Carolina has a maximum punishment of 182 months active.

It is important to have a real conversation with your criminal defense lawyer about the best and worst possible outcome of each and every charge against you. If you have been charged with embezzlement or any financial crime you should contact a lawyer who deals with that type of law. There are many rights and options that need to be explained to you before you walk into a courtroom to face these charges. In some circumstances it may even be possible for your criminal defense lawyer to resolve the matter without you having to ever go to court. It is important to remember that there are many different situations or financial transactions (some accidental and some knowingly) that can lead charges of Embezzlement. No case is ever the same and no particular outcome can be guaranteed.

What is embezzlement?

Embezzlement is when a person fraudulently uses the property or money of another for a purpose other than that for which the person received it and while that person was entrusted with the safe keeping of that property or money.

How is embezzlement different than larceny? Embezzlement Vs. Larceny

Larceny is the taking of another person’s property or money with the intent to permanently deprive them of its use. A classic example is when a teenager goes into a store like Wal-Mart and takes a pair of jeans without paying for them. Embezzlement is similar to larceny, but it must involve someone taking (or giving away, misappropriating or misusing) property or money they were entrusted with. A classic example would be if an employee Wal-Mart such as a cashier took money out of her cash register for her own use. In this case the theft came from someone who was entrusted with the safe keeping of that property.

If I have been charged with Embezzlement can I just return the money and have the charges dropped?

The short answer is NO, the charges will not be dropped if you simply payback the money. But, there are countless reasons and variation of situations that can change this answer. No case is ever the exact same and needs to be treated and defended as such. In general the charges brought against you were brought by the State of North Carolina. If you have been charged, your case is considered (and referred to as) The State of North Carolina VS. Defendant… Not Wal-Mart VS. Defendant. So, while the employer victim may have some say in the outcome of the case, it is ultimately up to the Wake County District Attorney’s Office to prosecute or not prosecute the case.

What does the North Carolina General Statute say?

§ 14 90. Embezzlement of property received by virtue of office or employment.
(a) This section shall apply to any person:
(1) Exercising a public trust.
(2) Holding a public office.
(3) Who is a guardian, administrator, executor, trustee, or any receiver, or any other fiduciary, including, but not limited to, a settlement agent, as defined in G.S. 45A 3.
(4) Who is an officer or agent of a corporation, or any agent, consignee, clerk, bailee or servant, except persons under the age of 16 years, of any person.
(b) Any person who shall:
(1) Embezzle or fraudulently or knowingly and willfully misapply or convert to his own use, or
(2) Take, make away with or secrete, with intent to embezzle or fraudulently or knowingly and willfully misapply or convert to his own use,
any money, goods or other chattels, bank note, check or order for the payment of money issued by or drawn on any bank or other corporation, or any treasury warrant, treasury note, bond or obligation for the payment of money issued by the United States or by any state, or any other valuable security whatsoever that (i) belongs to any other person or corporation, unincorporated association or organization or (ii) are closing funds as defined in G.S. 45A 3, which shall have come into his possession or under his care, shall be guilty of a felony.
(c) If the value of the property described in subsection (b) of this section is one hundred thousand dollars ($100,000) or more, the person is guilty of a Class C felony. If the value of the property is less than one hundred thousand dollars ($100,000), the person is guilty of a Class H felony.

What is Domestic Violence?

What is considered Domestic Violence? How is Domestic Violence defined in North Carolina?

The State of North Carolina defines Domestic Violence by statute in § 50B-1. Domestic violence means the commission of one or more of the following acts upon an aggrieved party or upon a minor child residing with or in the custody of the aggrieved party by a person with whom the aggrieved party has or has had a personal relationship, but does not include acts of self-defense.

These acts are set by statute:

1. Attempting to cause bodily injury, or intentionally causing bodily injury
2. Placing the aggrieved party or a member of the aggrieved party’s family or household in fear of imminent serious bodily injury or continued harassment, as defined in G.S. 14-277.3A, that rises to such a level as to inflict substantial emotional distress.
3. Committing any act defined in G.S. 14-27.2 through G.S. 14-27.7.
a. § 14 27.2. First degree rape.
b. § 14 27.3. Second degree rape.
c. § 14 27.4. First degree sexual offense.
d. § 14 27.5. Second degree sexual offense.
e. § 14 27.6: Repealed by Session Laws 1994, Ex. Sess., c. 14, s. 71(3).
f. § 14 27.7. Intercourse and sexual offenses with certain victims; consent no defense.

What does a “personal relationship” mean in Domestic Violence cases?

1. Current or former spouses
2. Persons of opposite sex who live together or have at some time lived together
3. Related as parents and children, grandparents and grandchildren and other parental relationships.
4. A man and woman who have a child in common
5. Current or former household members
6. Persons of the opposite sex who are in a dating relationship or have been in a dating relationship. The dating relationship has to be romantic in nature and more than just friends or casual acquaintances.

The large majority of criminal domestic cases in Wake County involve assault(s) between a man and woman who have a sexual relationship and live together. These include Simple Assault, Assault on a Female, Assault by Strangulation and various Sexual Assaults. Domestic violence or DV cases in Wake County are taken very seriously by police, magistrates, defense attorneys and district attorneys because of the potentially dangerous nature of the situation.

Are gay or lesbian couples subject to Domestic Violence charges?

Yes, in the sense they can be charged with assaulting each other, but North Carolina does not place the “48 Hold” for domestic violence arrests on gay or lesbian couples. That means that they can be charged with the same crimes as heterosexual couples, such as assault and battery, but they will not be subject to the pre-trail release condition of bond only being issued by a district court judge. If someone in a gay or lesbian relationship is charge with a Domestic Violence related crime a Magistrate will set their bond or other pre-trial release conditions.

Do I need a lawyer to get a protective order? Should I get an attorney if I am a victim of Domestic Violence?

By statue you may file for a 50B Domestic Violence Protective Order without a lawyer. This is considered acting Pro Se or representing yourself. In all legal matters you always have the option of representing yourself, but it may be in your best interest to contact a lawyer who handles domestic violence cases. They will be able to provide vital insight and guide you through the process while protecting your rights. If you cannot afford to hire a private attorney for domestic civil matters you should contact Legal Aid of North Carolina or other non-profit groups like Interact. They provide extremely valuable services to individuals in domestic violence situations.

Contact info for free legal services in Wake County for Domestic Violence:

Interact of Wake County

www.interactofwake.org
1012 Oberlin Road Raleigh, NC 27605
(919) 828-7501

Legal Aid of North Carolina
www.legalaidnc.org
224 South Dawson Street Raleigh, NC 27601-1306
(919) 856-2180

Getting a Domestic Violence Protective Order

50B Getting a Domestic Violence Protective Order / Restraining Order in Wake County

A domestic violence protective order in Wake County is a very serious matter. Whether you are seeking a protective order or someone has taken out an order on you, it is advised that you seek legal representation. There are many constitutional rights and freedoms that are at risk upon issuance of this type of Protective Order.

Any person residing in North Carolina may seek relief under Chapter 50 of the North Carolina General Statues and obtain a protective order upon finding of certain facts. The domestic violence protective order in North Carolina is generally referred to as a “50B Order.” This is a civil action filed with the Wake County Clerk of Court alleging acts of domestic violence against himself or herself or a minor child who resides with or is in the custody of such person.

A 50B Domestic violence protective order provides emergency relief for a person (a victim or domestic violence) who believes that there is a danger of serious and immediate injury to himself or herself or a minor.

Can a Magistrate issue a 50B Domestic Violence Protective Order / Restraining Order?

The North Carolina General Statutes clearly gives authority of Magistrates to issue these types of ex parte orders, but it is only if the Chief District Court Judge of that county authorizes it. Currently in Wake County Magistrates do not hold ex parte hearings to order Domestic Violence Protective Orders (DVPO).

In Wake County the Complaint and Motion is sworn (or affirmed) and subscribed to before a Deputy Clerk of Superior Court. Then the Ex Parte Domestic Violence Order is issued and signed by a District Court Judge upon hearing the facts in the Complaint. This limits the available times to apply for a DVPO since the courthouse is only in open on weekdays during court hours (excluding holidays), while there is always a Magistrate on duty and available 24 hours a day 365 days a year. For immediate help in a domestic violence situation call 911.

How do I get a Protective Order in Wake County? How do I get a Restraining Order in Wake County?

To get a 50B Domestic Violence Protective Order in Wake County you will need to visit the 11th floor of the Wake County Courthouse (This may be subject to change as new court facilities are being built). This is where you will find the Wake County Clerk of Court. You will have to file a Complaint and Motion for Domestic Violence Protective Order. The Clerk’s Office in Wake County has a stealer record of being extremely helpful and they will explain and walk you through the process. Contact the Wake County Clerk’s Office at (919) 792-4000.

If there is finding that an ex-parte protective order should be given, the individual against who protection is sought will be served by the Wake County Sheriff and a hearing will be scheduled within 10 days after prompt service (with some exception). The Defendant is served with what is called a Notice of Hearing. It is at this hearing that the court will determine whether the Order will be continued (up until one year) and whether emergency relief in protecting the plaintiff and the plaintiff’s children should be granted.

What protections do a domestic violence protective order / restraining order provide a victim of domestic violence? How does a 50B order affect child custody?

§ 50B 3. Relief is:

If the court, including magistrates (currently not in Wake County) as authorized under G.S. 50B 2(c1), finds that an act of domestic violence has occurred, the court shall grant a protective order restraining the defendant from further acts of domestic violence. A protective order may include any of the following types of relief:
(1) Direct a party to refrain from such acts.
(2) Grant to a party possession of the residence or household of the parties and exclude the other party from the residence or household.
(3) Require a party to provide a spouse and his or her children suitable alternate housing.
(4) Award temporary custody of minor children and establish temporary visitation rights pursuant to G.S. 50B 2 if the order is granted ex parte, and pursuant to subsection (a1) of this section if the order is granted after notice or service of process.
(5) Order the eviction of a party from the residence or household and assistance to the victim in returning to it.
(6) Order either party to make payments for the support of a minor child as required by law.
(7) Order either party to make payments for the support of a spouse as required by law.
(8) Provide for possession of personal property of the parties, including the care, custody, and control of any animal owned, possessed, kept, or held as a pet by either party or minor child residing in the household.
(9) Order a party to refrain from doing any or all of the following:
a. Threatening, abusing, or following the other party.
b. Harassing the other party, including by telephone, visiting the home or workplace, or other means.
b1. Cruelly treating or abusing an animal owned, possessed, kept, or held as a pet by either party or minor child residing in the household.
c. Otherwise interfering with the other party.
(10) Award attorney’s fees to either party.
(11) Prohibit a party from purchasing a firearm for a time fixed in the order.
(12) Order any party the court finds is responsible for acts of domestic violence to attend and complete an abuser treatment program if the program is approved by the Domestic Violence Commission.
(13) Include any additional prohibitions or requirements the court deems necessary to protect any party or any minor child.
(a1) Upon the request of either party at a hearing after notice or service of process, the court shall consider and may award temporary custody of minor children and establish temporary visitation rights as follows:
(1) In awarding custody or visitation rights, the court shall base its decision on the best interest of the minor child with particular consideration given to the safety of the minor child.
(2) For purposes of determining custody and visitation issues, the court shall consider:
a. Whether the minor child was exposed to a substantial risk of physical or emotional injury or sexual abuse.
b. Whether the minor child was present during acts of domestic violence.
c. Whether a weapon was used or threatened to be used during any act of domestic violence.
d. Whether a party caused or attempted to cause serious bodily injury to the aggrieved party or the minor child.
e. Whether a party placed the aggrieved party or the minor child in reasonable fear of imminent serious bodily injury.
f. Whether a party caused an aggrieved party to engage involuntarily in sexual relations by force, threat, or duress.
g. Whether there is a pattern of abuse against an aggrieved party or the minor child.
h. Whether a party has abused or endangered the minor child during visitation.
i. Whether a party has used visitation as an opportunity to abuse or harass the aggrieved party.
j. Whether a party has improperly concealed or detained the minor child.
k. Whether a party has otherwise acted in a manner that is not in the best interest of the minor child.
(3) If the court awards custody, the court shall also consider whether visitation is in the best interest of the minor child. If ordering visitation, the court shall provide for the safety and well being of the minor child and the safety of the aggrieved party. The court may consider any of the following:
a. Ordering an exchange of the minor child to occur in a protected setting or in the presence of an appropriate third party.
b. Ordering visitation supervised by an appropriate third party, or at a supervised visitation center or other approved agency.
c. Ordering the noncustodial parent to attend and complete, to the satisfaction of the court, an abuser treatment program as a condition of visitation.
d. Ordering either or both parents to abstain from possession or consumption of alcohol or controlled substances during the visitation or for 24 hours preceding an exchange of the minor child.
e. Ordering the noncustodial parent to pay the costs of supervised visitation.
f. Prohibiting overnight visitation.
g. Requiring a bond from the noncustodial parent for the return and safety of the minor child.
h. Ordering an investigation or appointment of a guardian ad litem or attorney for the minor child.
i. Imposing any other condition that is deemed necessary to provide for the safety and well being of the minor child and the safety of the aggrieved party.
If the court grants visitation, the order shall specify dates and times for the visitation to take place or other specific parameters or conditions that are appropriate. A person, supervised visitation center, or other agency may be approved to supervise visitation after appearing in court or filing an affidavit accepting that responsibility and acknowledging accountability to the court.
(4) A temporary custody order entered pursuant to this Chapter shall be without prejudice and shall be for a fixed period of time not to exceed one year. Nothing in this section shall be construed to affect the right of the parties to a de novo hearing under Chapter 50 of the General Statutes. Any subsequent custody order entered under Chapter 50 of the General Statutes supersedes a temporary order issued pursuant to this Chapter.
(b) Protective orders entered pursuant to this Chapter shall be for a fixed period of time not to exceed one year. The court may renew a protective order for a fixed period of time not to exceed two years, including an order that previously has been renewed, upon a motion by the aggrieved party filed before the expiration of the current order; provided, however, that a temporary award of custody entered as part of a protective order may not be renewed to extend a temporary award of custody beyond the maximum one year period. The court may renew a protective order for good cause. The commission of an act as defined in G.S. 50B 1(a) by the defendant after entry of the current order is not required for an order to be renewed. Protective orders entered, including consent orders, shall not be mutual in nature except where both parties file a claim and the court makes detailed findings of fact indicating that both parties acted as aggressors, that neither party acted primarily in self defense, and that the right of each party to due process is preserved.
(c) A copy of any order entered and filed under this Article shall be issued to each party. In addition, a copy of the order shall be issued promptly to and retained by the police department of the city of the victim’s residence. If the victim does not reside in a city or resides in a city with no police department, copies shall be issued promptly to and retained by the sheriff, and the county police department, if any, of the county in which the victim resides. If the defendant is ordered to stay away from the child’s school, a copy of the order shall be delivered promptly by the sheriff to the principal or, in the principal’s absence, the assistant principal or the principal’s designee of each school named in the order.
(c1) When a protective order issued under this Chapter is filed with the Clerk of Superior Court, the clerk shall provide to the applicant an informational sheet developed by the Administrative Office of the Courts that includes:
(1) Domestic violence agencies and services.
(2) Sexual assault agencies and services.
(3) Victims’ compensation services.
(4) Legal aid services.
(5) Address confidentiality services.
(6) An explanation of the plaintiff’s right to apply for a permit under G.S. 14 415.15.

If you would like to obtain a Restraining Order or you need legal defense after being served with a restraining order then call The Gurney Law Firm at (919) 930-4027. Eric Gurney is a criminal lawyer for people in Wake County, Raleigh, Apex, Garner, Wake Forest, Cary and the Triangle.

Level of Punishment for a North Carolina DWI

Determining the Level of Punishment for a North Carolina DWI (After December 1st 2011)

If you have been charge with and subsequently been found guilty or plead guilty to a DWI charge in Wake County or another part of North Carolina the next issue you will face is the sentencing hearing. The sentencing hearing for a DWI conviction is required by statute § 20 179. A sentencing hearing will focus on the factors that existed when you were originally charged and some factors from your past history. The trial court is required to hear evidence and determine the existence of 3 types of factors for a DWI. They are 1.) Grossly Aggravating Factors 2.) Aggravating Factors and 3.) Mitigating Factors.

As of December 1st of 2011 there are 6 levels of punishment for a DWI conviction. Listed in declining severity of punishment; they are Aggravated Level I, Level I, Level II, Level III, Level IV, and Level V. “Level 5” is the least punitive while “Aggravated Level 1,” which carries a Maximum jail sentence of 36 months, is the most punitive. The difference in punishment can change drastically depending on which DWI punishment level you come under.

How does the Court determine what Level of sentence you should receive?

The Court will weigh the 3 different types of factors and their finding of factors will place you, by statute, in a specific level for punishment. The 3 types are 1.) Grossly Aggravating Factors 2.) Aggravating Factors and 3.) Mitigating Factors. The Court shall consider evidence of Aggravating or Mitigating factors present in the offense that make an aggravated or mitigated sentence appropriate. The State bears the burden of proving beyond a reasonable doubt that an aggravating factor exists, and the offender bears the burden of proving by a preponderance of the evidence that a mitigating factor exists. This means that the State (the Prosecutor or DA) has a higher standard at which to prove aggravating factors.

What are the Factors for DWI Punishment Levels for Sentencing in North Carolina?

Grossly Aggravating Factors

(1) A prior conviction for an offense involving impaired driving if:
a. The conviction occurred within seven years before the date of the offense for which the defendant is being sentenced; or
b. The conviction occurs after the date of the offense for which the defendant is presently being sentenced, but prior to or contemporaneously with the present sentencing; or
c. The conviction occurred in district court; the case was appealed to superior court; the appeal has been withdrawn, or the case has been remanded back to district court; and a new sentencing hearing has not been held pursuant to G.S. 20 38.7.
Each prior conviction is a separate grossly aggravating factor.
(2) Driving by the defendant at the time of the offense while his driver’s license was revoked under G.S. 20 28, and the revocation was an impaired driving revocation under G.S. 20 28.2(a).
(3) Serious injury to another person caused by the defendant’s impaired driving at the time of the offense.
(4) Driving by the defendant while a child under the age of 16 years was in the vehicle at the time of the offense.
In imposing a Level One or Two punishment, the judge may consider the aggravating and mitigating factors in subsections (d) and (e) of § 20 179 in determining the appropriate sentence. If there are no grossly aggravating factors in the case, the judge must weigh all aggravating and mitigating factors and impose punishment as required by subsection (f) of § 20 179.

Aggravating Factors

(1) Gross impairment of the defendant’s faculties while driving or an alcohol concentration of 0.15 or more within a relevant time after the driving. For purposes of this subdivision, the results of a chemical analysis presented at trial or sentencing shall be sufficient to prove the person’s alcohol concentration, shall be conclusive, and shall not be subject to modification by any party, with or without approval by the court.
(2) Especially reckless or dangerous driving.
(3) Negligent driving that led to a reportable accident.
(4) Driving by the defendant while his driver’s license was revoked.
(5) Two or more prior convictions of a motor vehicle offense not involving impaired driving for which at least three points are assigned under G.S. 20 16 or for which the convicted person’s license is subject to revocation, if the convictions occurred within five years of the date of the offense for which the defendant is being sentenced, or one or more prior convictions of an offense involving impaired driving that occurred more than seven years before the date of the offense for which the defendant is being sentenced.
(6) Conviction under G.S. 20 141.5 of speeding by the defendant while fleeing or attempting to elude apprehension.
(7) Conviction under G.S. 20 141 of speeding by the defendant by at least 30 miles per hour over the legal limit.
(8) Passing a stopped school bus in violation of G.S. 20 217.
(9) Any other factor that aggravates the seriousness of the offense.

Mitigating Factors

(1) Slight impairment of the defendant’s faculties resulting solely from alcohol, and an alcohol concentration that did not exceed 0.09 at any relevant time after the driving.
(2) Slight impairment of the defendant’s faculties, resulting solely from alcohol, with no chemical analysis having been available to the defendant.
(3) Driving at the time of the offense that was safe and lawful except for the impairment of the defendant’s faculties.
(4) A safe driving record, with the defendant’s having no conviction for any motor vehicle offense for which at least four points are assigned under G.S. 20 16 or for which the person’s license is subject to revocation within five years of the date of the offense for which the defendant is being sentenced.
(5) Impairment of the defendant’s faculties caused primarily by a lawfully prescribed drug for an existing medical condition, and the amount of the drug taken was within the prescribed dosage.
(6) The defendant’s voluntary submission to a mental health facility for assessment after he was charged with the impaired driving offense for which he is being sentenced, and, if recommended by the facility, his voluntary participation in the recommended treatment.
(6a) Completion of a substance abuse assessment, compliance with its recommendations, and simultaneously maintaining 60 days of continuous abstinence from alcohol consumption, as proven by a continuous alcohol monitoring system. The continuous alcohol monitoring system shall be of a type approved by the Department of Correction.
(7) Any other factor that mitigates the seriousness of the offense.

How does the court determine which Level is appropriate for my DWI conviction?

Determining which Level you are sentenced at depends on what and/or how many Factors the Court finds the existence of.

Aggravated Level 1 Punishment for a DWI- To sentence at this level the Court must find the existence of at least 3 Grossly Aggravating Factors.
Level 1 Punishment for a DWI - To sentence at this level the Court must find the existence of at least 2 Grossly Aggravating Factors or one of the Grossly Aggravating Factors listed in the General Statute § 20 179.
Level 2 Punishment for a DWI- To sentence at this level the Court must find the existence of 1 Grossly Aggravating Factor
Level 3 Punishment for a DWI - To sentence at this level the Court must find that the Aggravating Factors are greater than the Mitigating Factors
Level 4 Punishment for a DWI- To sentence at this level the Court must find that there are no Aggravating Factors or Mitigating Factors, or that the Aggravating Factors offset the Mitigating Factors.
Level 5 Punishment for a DWI- To sentence at this level the Court must find that the Mitigating Factors are greater than the Aggravating Factors

If you or someone you know has been charge with a DWI then you should contact a Wake County DWI lawyer and have them explain your rights and options. Eric Gurney is a former Wake County Magistrate with extensive experience in DWI procedure. If you need a Raleigh DWI lawyer then call Eric Gurney at (919) 930-4027 for aggressive DWI representation. The Gurney Law Firm handles DWI cases in Wake County, Durham County, Apex, Raleigh, Wake Forest, Cary and surrounding areas.

Can you get a PJC expunged in NC?

Can I get a PJC expunged off my criminal record?

Many people throughout North Carolina (including many of my own clients) have used a PJC as a way to dispose of criminal or traffic charges. A PJC stands for Prayer for Judgment Continued and is used by the North Carolina Courts as a way for someone charged with a crime to plead guilty but have the court withhold entry of a judgment. In effect it limits the penalty for the guilty plea to just court cost. No other fine or jail is imposed (Though some judges may issue certain requirements to grant a PJC). It is important to note that a PJC is treated by the court system like a conviction and it may not be the best legal option for your particular case. It is always best to consult with a North Carolina criminal lawyer to review your case and explain all of your options.

But what if you want to get that charge expunged off your record later? Can you expunge a PJC in North Carolina?

This question is actually very divisive in the North Carolina legal community and receives mixed answers depending on who you ask. As an expungement lawyer in Raleigh, I believe that a person can and should be able to receive an expungement under the North Carolina General Statute 15A-145. This statute covers expungements for persons who have been convicted of a misdemeanor as a first offender and under the age of 18. While the statute does not specifically have any mention of a PJC, the argument hinges on the fact that the North Carolina Court System treats a PJC like a conviction for most purposes and that should also include expungements.

But is a PJC a conviction?

As the court stated in State v. Mcgee, 175 N.C. App. 586 (2006) “Under the traditional definition, “Conviction” refers to the jury’s or fact finder’s guilty verdict.” And a PJC can only be granted after the Judge establishes the defendant’s guilt. So, since the court treats a PJC just like a conviction, a person should be able to obtain an expungement under the statute dealing with expunction of a conviction.

So, the next step for someone who has received a PJC and would like it expunged off their record is to talk to an expungement attorney who can tell if you qualify for an expungement in NC.

If you need to have your criminal record cleaned and get an expungement, contact an NC Expungement Lawyer. The Gurney Law Firm handles all types of expungements in North Carolina. Contact an Expungement lawyer by calling (919) 930-4027. The Gurney Law Firm is a criminal defense law firm in Raleigh, NC and serves all of Wake County and Durham County. This includes Raleigh, Durham, Cary, Apex, Wake forest, Zebulon and Fuquay-Varina.

Speeding Tickets for Teens in Raleigh NC… Will I go to jail?

December 16, 2011 by  
Filed under Criminal Law, Traffic Law

New Law Affects Teen Drivers in NC – G.S. 20-13.3

Tell your teen driver to slow down! It could cost them big after the New Year. The UNC School of Government reports that: On January 1st, 2012 the new law on Civil License Revocations for Provisional Licensees goes into effect. It’s a scary law that can land a teen driver in jail and result in a 30 day suspended license for speeding 15 mph over the posted speed limit (among numerous other moving violation).

The newly amended law, G.S. 20-13.3, will affect 16 and 17 year old drivers that have been issued a limited learner’s permit or a provisional license issued by NC DMV pursuant to G.S. 20-11. These drivers are defined as “provisional licensee[s].” G.S. 20-13.3(a)(4). This new law does not affect 15 year old drivers that have been issued Provisional Licenses because under North Carolina state law someone under the age of 16 cannot be arrested.
The new law is activated by commission of a “criminal moving violation,” which are driving offenses that are punishable as a misdemeanor or felony offense. This includes Reckless driving (G.S. 20-140) and Speeding more than 15 mph over limit or more than 80 mph (G.S. 20-141(j1))… Both of which are not uncommon for teens to be charged with.

Please see the end of this article for a complete list of criminal moving violations.

Under the new law a provisional licensee’s permit or license is subject to revocation under G.S. 13-3 if: (1) a law enforcement officer has reasonable grounds to believe that the provisional licensee has committed a criminal moving violation, (2) the provisional licensee is charged with that offense, and (3) the provisional licensee is not subject to a civil revocation pursuant to G.S. 20-16.5 for the same underlying conduct.
Bottom Line – If your teen speeds they risk license revocation and jail! Contact The Gurney Law Firm if you or your teen has been charge with a traffic or criminal offense (919) 930-4027. Mr. Gurney is a criminal defense attorney in Raleigh, NC and serves Raleigh, Cary, Garner, Apex, Wake Forest and all of Wake County.

The following offenses are criminal moving violations:
• G.S. 20-137.4: Operating a school bus while using a mobile phone
• G.S. 20-137.4A: Operating a school bus while using a mobile phone to text or access electronic email
• G.S. 20-138.1: Driving while impaired
• G.S. 20-138.2: Driving while impaired in a commercial vehicle
• G.S. 20-138.2A: Operating a commercial vehicle after consuming
• G.S. 20-138.2B: Operating a school bus, school activity bus, or child care vehicle after consuming alcohol
• G.S. 20-138.3: Operating a motor vehicle by person less than 21 after consuming alcohol or drugs
• G.S. 20-138.5: Habitual impaired driving
• G.S. 20-138.7(a): Operating a motor vehicle while there is an open container of alcohol in the passenger area and while the driver is consuming or has consumed alcohol
• G.S. 20-140: Reckless driving
• G.S. 20-141(j1): Speeding more than 15 mph over limit or more than 80 mph
• G.S. 20-141(j3): Speeding in a commercial motor vehicle carrying a load that is subject to the permitting requirements of G.S. 20-119 and (i) driving 15 mph or more over the posted speed, or (ii) driving 15 mph or more over the permit speed
• G.S. 20-141.3: Operating a motor vehicle willfully in a prearranged speed competition, or operating a motor vehicle willfully in speed competition, or allowing one’s vehicle to be operated in a prearranged speed competition, or wagering on a prearranged speed competition
• G.S. 20-141.4: Felony death by vehicle, misdemeanor death by vehicle, felony serious injury by vehicle, aggravated felony serious injury by vehicle, aggravated felony death by vehicle, repeat felony death by vehicle
• G.S. 20-141.5: Speeding to elude arrest
• G.S. 20-141.6: Aggressive driving
• G.S. 20-149(b): Improper operation by an overtaken driver causing a collision resulting in serious bodily injury, bodily injury, or property damage
• G.S. 20-157(a), (h), (i): Failing to move over for law enforcement or emergency vehicle giving warning signal, or violating G.S. 20-157 and causing damage to property or injury, or violating G.S. 20-157 and causing serious injury or death
• G.S.20-166(a), (a1), (b), (c), (c1): Failing to stop and remain after a crash resulting in serious bodily injury or death, or failing to stop and remain after a crash resulting in injury, or failing to provide information or render assistance following a crash, or failing to stop and remain after a crash resulting in damage to property or non-apparent injury
• G.S. 20-166.1: Failing to notify law enforcement or other owner following crash, or failing to provide proof of insurance to DMV upon request
• G.S. 20-166.2: Failing, when a passenger in a vehicle involved in a crash, to remain at the scene, or provide information, or render assistance
• G.S. 20-167.1: Transporting spent nuclear fuel without notifying NCSHP in advance

The Gurney Law Firm handles all traffic tickets in Wake County. If you have received a speeding ticket in Raleigh and need a Traffic law lawyer contact us at (919) 930-4027. The Gurney Law Firm handles traffic and criminal defense in Raleigh, Wake Forest, Wakefield, Cary, Apex, Holly Springs, Durham and the rest of the Triangle.

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