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.

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