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.

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

June 13, 2012 by  
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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.