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J. Bradley Smith of Arnold & Smith, PLLC answers the question “What is the difference between a misdemeanor and a felony?”

 

Charlotte-Mecklenburg police office Randall Kerrick avoided conviction on manslaughter charges last week when the North Carolina jury deadlocked, forcing the judge presiding over the case to declare a mistrial. Experts say it is unclear how prosecutors will move forward, whether they will bring Kerrick up on similar charges a second time or consider other options.

 

Police lights Charlotte DWI Lawyer Mecklenburg Criminal AttorneyThe case involving Kerrick dates back to 2013, when a woman called 911 saying that there was a man trying to break in her front door. The young woman was home alone late at night with her 1-year-old child and was understandably terrified by what she says was a stranger banging on her door. The stranger was former college football player Jonathan Ferrell. Ferrell had just had a car accident. He crawled from his vehicle, his family says, looking for help. When police arrived, a dispute ensued, with Kerrick arguing that Ferrell became aggressive and was taunting the officer to shoot him. Ferrell’s family says that Kerrick shot him in cold blood and without any provocation. A dashcam video of the incident was released and appears to show Ferrell raising his hands, as if to say “Wait.” The video also shows Ferrell coming towards the officers, prosecutors say out of relief that they had arrived to help; the defense argues it was yet another show of aggression.

 

After a lengthy investigation, prosecutors decided to bring felony voluntary manslaughter charges against Kerrick. The charges are applied when someone uses excessive force in self-defense or shooting without the specific intention to kill. In such cases, the killing occurs in the heat of passion or as a result of provocation. What is critical is that the person charged cannot be said to have planned the killing; if so, that would make it a murder. Penalties for a voluntary manslaughter conviction are incredibly serious and could land a defendant in prison for up to 40 years.

 

The jury in this case spent hours weighing the facts and were unable to reach a unanimous decision. Jurors were polled several times and were split 7-5, 8-4 and 8-4, with holdouts appearing unwilling to change their minds. Exactly which way the jury was leaning has not been revealed. The superior court judge presiding over the case eventually became convinced that there was no reasonable probability that there could be a unanimous verdict and that a mistrial was unavoidable.

 

So what happens in the event of a mistrial like this one? What’s next? Some people think that a mistrial is the end of the line, believing that the constitutional protection from double jeopardy prevents prosecutors from bringing another case. That is incorrect in most instances. In cases where a jury cannot reach a verdict and the trial is concluded without deciding the facts in the defendant’s favor, the case can normally be retried. That being said, prosecutors would have to seriously consider the strength of their case and whether new or reduced charges are warranted given their inability to convince a jury the first time around. There has been no word on what will happen in Kerrick’s case, though Ferrell’s family has spoken out publicly and asked prosecutors for a new trial.

 

If you or someone you know has been charged with a crime and is in need of the services of an experienced criminal defense attorney, please give me a call to set up an appointment today. Arnold & Smith, PLLC is a Charlotte based criminal defense, traffic violation defense and civil litigation law firm servicing Charlotte and the surrounding area. If you or someone you know need legal assistance, please contact Arnold & Smith, PLLC today at (855) 370-2828   or find additional resources here.

 

About the Author

Brad Smith Charlotte Criminal and DWI LawyerBrad Smith is a Managing Member of Arnold & Smith, PLLC, where he focuses on the areas of criminal defense, DUI / DWI defense and traffic defense.

Mr. Smith was born and raised in Charlotte. He began his legal career as an Assistant District Attorney before entering private practice in 2006.

In his free time, Mr. Smith enjoys traveling, boating, golf, hiking and spending time with his wife and three children.

 

 

Sources:

http://www.nbcnews.com/news/us-news/judge-declares-mistrial-police-killing-jonathan-ferrell-n414001

 

 

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http://www.freeimages.com/photo/police-car-1515955

 

 

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Charlotte DWI and Criminal Defense Attorney J. Bradley Smith of Arnold & Smith, PLLC answers the question “Can the police search my car without a warrant?”

 

The Minnesota Court of Appeals recently issued a long-awaited opinion concerning the constitutionality of the state’s implied consent law. The Appeals Court affirmed the law, holding that a warrantless breath test qualifies as a valid search so long as it is connected to a lawful arrest.

 

Glass of beer Charlotte DWI Lawyer Mecklenburg Criminal Defense LawyerIn Minnesota, anyone who chooses to drive a vehicle is said to have consented to a chemical test of his or her blood. This means the person must agree to a test of his or her blood, breath or urine to determine intoxication if a police officer has probable cause to believe the person was drunk driving and has been arrested and charged with such a crime.

 

If a person ultimately refuses to allow such a test, then he or she will not be forced into submission. Instead, the driver will have his or her license revoked and face a possible criminal charged related to the refusal to submit to chemical testing.

 

In the Minnesota case, the defendant challenged the state’s implied consent law by arguing that the law forces a person to submit to what amounts to an unconstitutional search as a condition for maintaining a driver’s license. The Court, unfortunately, disagreed and said that the search in this case was a valid one.

 

Though many critics of the implied consent law were disappointed with the result, some took comfort in a concurring opinion by the Chief Judge on the Appeals Court. In a separate opinion, the Chief Judge noted that the decision applies only to cases of warrantless breath tests, not blood or urine tests. Many viewed this as an attempt to open the door on challenges to such tests.

 

What about implied consent in North Carolina?

 

North Carolina drivers may not realize that similar laws exist here. North Carolina has an implied consent law which says that those arrested for a DWI have already impliedly consented to having a chemical test done for the purpose of determining blood alcohol content. The law basically says that in exchange for being granted the privilege to drive a vehicle in the state, you have given up your right to refuse to provide a breath, blood, or urine sample for a chemical test after being arrested on suspicion of drunk driving.  The penalty in North Carolina for refusing to provide such a sample, and therefore violating the implied consent law, is a one-year suspension of one’s driving privilege.  In North Carolina, the test to determine blood alcohol content can be taken at any relevant time after driving.  Courts have interpreted this “relevant time” to mean up to several hours after the person was last seen behind the wheel.

 

Your rights

 

Though drivers are said to have impliedly consented to blood alcohol content tests, it is important to note that these tests cannot be ordered on a whim. Instead, police officers must first have established probable cause to suspect that a person was driving while impaired. This must be supported by actual evidence, not just a guess. Additionally, drivers also have the right to consult with an attorney for advice regarding a potential chemical test and can also request a witness to observe the procedure. The important caveat here is that you have 30 minutes from the time at which you were informed of your rights to call an attorney or a witness. The BAC testing will not be delayed longer than 30 minutes.

 

The big factor to note when considering your rights and whether or not to refuse to provide a sample for a blood alcohol content test is that even if you are denied your right to contact an attorney or witness, that violation alone will not save you from the penalty of violating the implied consent law.  North Carolina courts have continuously held that even if certain rights are violated with regard to availability of witnesses and attorneys to view or consult prior to submitting a sample, a driver can still be punished for “willfully” refusing to comply with the implied consent law.

 

However, just because an officer states that you refused is not the end of the story.  Anyone who has been revoked for a refusal may request a hearing before a DMV hearing officer for a determination of whether the refusal revocation should be sustained.  This hearing must be requested within ten days of the revocation, so time is of the essence if you have been charged with refusing to provide a sample.

 

Penalty

 

If you refuse to submit to a chemical test, North Carolina’s implied consent law contains a harsh punishment: license revocation. The law says that someone who refuses to submit to such a test will have his or her license revoked for a period of 12 months.  Furthermore, at least six months must pass before a driver is eligible for a limited driving privilege.  Thus, should you willfully refuse to provide a blood, breath, or urine sample upon the request of an officer after being charged with DWI, be prepared to be without a license for at least six months.

 

 

Our attorneys at Arnold & Smith, PLLC routinely appear before the DMV for refusal hearings, so if you are facing a refusal revocation, please give me a call to set up an appointment today. Arnold & Smith, PLLC is a Charlotte based criminal defense, traffic violation defense and civil litigation law firm servicing Charlotte and the surrounding area. If you or someone you know need legal assistance, please contact Arnold & Smith, PLLC today at (855) 370-2828   or find additional resources here.

 

 

About the Author

Brad Smith Charlotte Criminal and DWI LawyerBrad Smith is a Managing Member of Arnold & Smith, PLLC, where he focuses on the areas of criminal defense, DUI / DWI defense and traffic defense.

Mr. Smith was born and raised in Charlotte. He began his legal career as an Assistant District Attorney before entering private practice in 2006.

In his free time, Mr. Smith enjoys traveling, boating, golf, hiking and spending time with his wife and three children.

 

 

Sources:

http://www.startribune.com/appeals-court-upholds-law-in-breath-test-refusal-case/318667551/

 

 

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http://www.freeimages.com/photo/beer-1326297

 

 

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Charlotte DWI Lawyer Brad Smith answers : I was found not guilty of a charge, but my record still shows the charge

 

Just last week the Fourth Circuit Court of Appeals tackled a subject that is becoming increasingly important in criminal investigations: cellphone records. Courts across the country often find themselves wrestling with issues related to cellphone record requests; weighing the benefits to law enforcement with the privacy interests of defendants.

 

Police on cellphone Charlotte Criminal Attorney Mecklenburg DWI Law FirmIn the recent case, federal agents were investigating six armed robberies that took place in Maryland. To help in their search, the agents got court orders asking that Sprint provide 221 days of location information for the phones of two suspects. The court orders were enough to force the cellphone company to comply and investigators used the data to put together a map of their locations, cross-referencing where each was at the time of the robberies. The location data proved fruitful and led one suspect to be convicted of six robberies and sentenced to 147 years in prison, while the other was convicted of three robberies and sentenced to 72 years behind bars.

 

The Fourth Circuit decided to hear the case and ultimately held in a 2-1 decision that the federal agents had violated the Fourth Amendment rights of the suspects. Specifically, the court said that investigators should have obtained a warrant before accessing their cellphone records and that the failure to not secure such a warrant amounts to an unconstitutional violation of the suspects’ rights.

 

The Justice Department had argued that there was no privacy protection because users gave the location information freely to the cellphone providers. The Court rejected this argument and explained that it did not accept the idea that cellphone users lost any right of privacy simply by choosing to activate their phones and carry them on their person.

 

The difference between what the Fourth Circuit now requires (a warrant) and what the investigators got (a court order) is important. A court order only requires agents to show that the records being requested are “relevant and material” to a continuing investigation. With a warrant, the agents would have had to meet a higher burden, demonstrating that there was a reasonable probability that a search of the records would lead to evidence of a crime.

 

The ruling is interesting not just because of what it means for those living in the Fourth Circuit (North Carolina, Virginia, Maryland, West Virginia), but also because of what it could mean for the whole country. The ruling by the Fourth Circuit differs with previous decisions by other federal courts of appeal. Specifically, two federal appeals courts have held that warrants are not required when investigators seek cellphone location records. Another appeals court decided that warrants need not be sought so long as investigators are looking only for real-time tracking for a short amount of time.

 

The split in decisions is significant because it makes it much more likely that the U.S. Supreme Court will have to intervene. One of the things that cause the court to hear a case is if the appeals courts have decided the issue differently. The Supreme Court can then step in and issue the final word on the subject, ensuring citizens across the country are given similar legal protections.

 

If you or someone you know has been charged with a crime and is in need of the services of an experienced criminal defense attorney, please give me a call to set up an appointment today. Arnold & Smith, PLLC is a Charlotte based criminal defense, traffic violation defense and civil litigation law firm servicing Charlotte and the surrounding area. If you or someone you know need legal assistance, please contact Arnold & Smith, PLLC today at (855) 370-2828   or find additional resources here.

 

 

About the Author

Brad Smith Charlotte Criminal and DWI LawyerBrad Smith is a Managing Member of Arnold & Smith, PLLC, where he focuses on the areas of criminal defense, DUI / DWI defense and traffic defense.

Mr. Smith was born and raised in Charlotte. He began his legal career as an Assistant District Attorney before entering private practice in 2006.

In his free time, Mr. Smith enjoys traveling, boating, golf, hiking and spending time with his wife and three children.

 

 

Sources:

http://www.wsj.com/articles/appeals-court-ruling-sets-higher-bar-for-cellphone-searches-1438820814

 

 

Image Credit:

http://www.morguefile.com/archive/display/956325

 

 

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Charlotte DWI Lawyer Brad Smith of Arnold & Smith, PLLC answers the question “What should I do if I have been pulled over and I have been drinking ?”

 

As the Kerrick trial dominates the Charlotte headlines, a different trial attracted the attention of Raleigh residents last week.  On July 27, trial commenced in an action against a Raleigh couple accused of providing alcohol to minors at a 2014 wedding.  Raleigh-based neurologist Dr. Charles Matthews, 59, and his wife, Kimberly Matthews, 52, were on trial in Wake County Superior Court, charged with four counts of aiding and abetting underage possession and consumption of alcohol.

Car Accident Charlotte DWI Lawyer Mecklenburg Traffic AttorneyJonathon Taylor was one of the guests at the wedding.  The 18-year-old had recently graduated from Ravenscroft High School in Raleigh, and was set to attend the University of South Carolina in the fall of 2014.  Sadly, Taylor never made it home.  He was killed in a single-car accident after his car left the road and hit a tree.  His blood-alcohol level at the time of the crash was .20—two-and-a-half times the legal limit for adults.

Prosecutors alleged that Taylor was one of several teens served wine by caterers at the wedding reception.  “They were pouring and setting it out,” said Mary Anna Ergsh, one of the other teens at the reception.  “Nobody asked for IDs or anything.”

The question before the jury was whether the Matthewses were criminally responsible for providing that alcohol to the minors.  On July 31, the jury answered that question in the negative, and the Matthewses were acquitted on the four counts of aiding and abetting the consumption of alcohol by minors.

However, the couple is not out of the woods yet.  In early July, the Taylors filed a civil suit under a law that makes businesses that serve and sell alcohol liable for injuries caused when a person underage is served.  The Matthewses were later added to the suit.

N.C. Gen. Stat. § 18B-121, a statute within “North Carolina Dram Shop” law, establishes the liability of licensed establishments such as restaurants, bars, and liquor stores that negligently furnish alcohol to underage people who subsequently cause death or injury to others in alcohol-related crashes.  Only an “aggrieved party” has a claim for relief for damages against a licensed establishment under the statute.

Although “aggrieved parties” are typically those physically injured as a result of a crash caused by an underage person (e.g., a person physically injured by an 18-year-old drunk driver sues the ABC store that sold the 18-year-old the liquor), a 2002 N.C. Court of Appeals decision (Storch v. Winn-Dixie Charlotte, Inc.) held that the parents of an underage person could also be included in the definition of an “aggrieved party.”  Their “injuries” may include funeral expenses of the underage person, as well as damages for loss of services, society, companionship, and support.  The Taylors will certainly reference the Winn-Dixie decision in their civil suit against the Matthewses, the caterers, and the local wine and beer store that supplied the alcohol for the reception.

Jonathon Taylor’s death should serve as a wake-up call to parents who turn a blind eye to underage alcohol consumption at their residence.  Before last week’s criminal trial, Wake County District Attorney Lorrin Freeman stated:  “Underage drinking is a very serious problem in our community that leads to the deaths of many promising young people.  Until we stand together as a community against parents who have a kids-will-be-kids attitude, we will continue to lose promising young adults way too soon.”

On June 28, 2014, a promising young adult was lost due to underage drinking, leaving Greg and Carrie Taylor without their only child.

If you or someone you know has been charged with a crime and is in need of the services of an experienced criminal defense attorney, please give me a call to set up an appointment today. Arnold & Smith, PLLC is a Charlotte based criminal defense, traffic violation defense and civil litigation law firm servicing Charlotte and the surrounding area. If you or someone you know need legal assistance, please contact Arnold & Smith, PLLC today at (855) 370-2828   or find additional resources here.

 

 

About the Author

Brad Smith Charlotte Criminal and DWI LawyerBrad Smith is a Managing Member of Arnold & Smith, PLLC, where he focuses on the areas of criminal defense, DUI / DWI defense and traffic defense.

Mr. Smith was born and raised in Charlotte. He began his legal career as an Assistant District Attorney before entering private practice in 2006.

In his free time, Mr. Smith enjoys traveling, boating, golf, hiking and spending time with his wife and three children.

 

 

Sources:

http://www.newsobserver.com/news/local/crime/article27302533.html

http://www.ncga.state.nc.us/EnactedLegislation/Statutes/HTML/BySection/Chapter_18B/GS_18B-121.html

http://caselaw.findlaw.com/nc-court-of-appeals/1197191.html

http://abc11.com/news/couple-not-guilty-in-fatal-teen-crash-son-sentenced/895492/

http://www.ncga.state.nc.us/EnactedLegislation/Statutes/HTML/BySection/Chapter_18B/GS_18B-302.html

http://www.newsobserver.com/news/local/crime/article29114758.html

http://www.wral.com/raleigh-couple-charged-with-providing-alcohol-to-teen-prior-to-fatal-crash-say-case-is-discriminatory-/14771618/

http://abc11.com/news/parents-accused-of-aiding-underage-drinking-on-trial/888488/

 

 

Image Credit:

“Verkehrsunfall L261 04” by Huhu Uet – Own work. Licensed under CC BY 3.0 via Wikimedia Commons – https://commons.wikimedia.org/wiki/File:Verkehrsunfall_L261_04.JPG#/media/File:Verkehrsunfall_L261_04.JPG

 

 

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Charlotte Criminal Lawyer Brad Smith answers the question: What is an expungement?

 

In a case that will surely make headlines across the country, a man from Clayton, North Carolina has been arrested after police say he left his wallet at the scene of the crime. Being arrested and charged with a crime is bad enough and often requires the skills of an experienced attorney to help defend your freedom and argue on behalf of innocence. Putting on a strong defense goes from merely difficult to nearly impossible when the burglar leaves behind a picture ID at the victim’s house. If recent news reports are true, this means that Joseph Alan Sherman’s attorney is going to need all the help he can get.

 

Old Wallet Charlotte Criminal Lawyer Mecklenburg DWI AttorneyThe incident happened earlier this week when authorities say that a homeowner came home to find that she had been burglarized. The criminal had forced open the back door and eaten two frozen dinners, one with spaghetti and the other pizza. After having a hearty meal, the criminal then grabbed the woman’s PlayStation 2 and a leather jacket before fleeing out the back door.

 

These kinds of crimes can often be hard to prosecute due to the lack of witnesses and solid evidence. The criminal in this case, Sherman, must have wanted to help the police along, because he dropped his wallet at the back door on his way out of the house. The 32-year-old Sherman was then easily tracked down by police and has now been charged with breaking and entering as well as larceny. His bond has been set at $30,000.

 

Though the story itself is an amusing one (for everyone but Sherman), the reality is that the crimes being considered are anything but funny. First, misdemeanor larceny is a crime that involves the wrongful taking of another person’s property. A person can be convicted of misdemeanor larceny if that person is found to have done the following things: 1) taken the property of another person; 2) carried it away; 3) without consent: 4) with the intent of permanently depriving the owner of that property; 5) while knowing that the property was not theirs to take. Additionally, for a person to be convicted of larceny the property stolen must be worth less than $1,000. Such a conviction would qualify as a Class 1 misdemeanor under North Carolina law. Should the value of the property exceed the $1,000 limit, the person would then face even harsher felony larceny charges.

 

In North Carolina, there are two forms of breaking and entering. The first, simple breaking and entering, exists when a person wrongfully enters a building without permission, but without intent to commit a felony or theft. For instance, a homeless person walking in an open door on a warehouse to rest could be charged with breaking and entering. Far more serious is felonious breaking and entering. This happens when a person intends to commit a felony, steal or injure/terrorize any inhabitants of the building. The same homeless person who breaks down a back door on a warehouse and steals some industrial equipment would face felonious breaking and entering charges. Given the addition of larceny charges, Sherman will face the much more serious charge of felonious breaking and entering.

 

If you or someone you know has been charged with a crime and is in need of the services of an experienced criminal defense attorney, please give me a call to set up an appointment today. Arnold & Smith, PLLC is a Charlotte based criminal defense, traffic violation defense and civil litigation law firm servicing Charlotte and the surrounding area. If you or someone you know need legal assistance, please contact Arnold & Smith, PLLC today at (855) 370-2828   or find additional resources here.

 

 

About the Author

Brad Smith Charlotte Criminal and DWI LawyerBrad Smith is a Managing Member of Arnold & Smith, PLLC, where he focuses on the areas of criminal defense, DUI / DWI defense and traffic defense.

Mr. Smith was born and raised in Charlotte. He began his legal career as an Assistant District Attorney before entering private practice in 2006.

In his free time, Mr. Smith enjoys traveling, boating, golf, hiking and spending time with his wife and three children.

 

 

Sources:

http://abc7news.com/news/hungry-thief-leaves-wallet-at-north-carolina-crime-scene/900454/

 

 

Image Credit:

http://www.freeimages.com/photo/wallet-1421618

 

 

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Charlotte DWI Lawyer Brad Smith answers the question: What are the long term effects of being convicted of a crime?

 

A partner at a major national law firm is currently experiencing the fallout from a series of bad decisions she made during a recent flight from Charlotte, NC to London. The case illustrates not only the dangers of mixing alcohol and prescription sleep drugs, but also the serious penalties that can result from misbehavior onboard an airplane.

 

Airplane Charlotte Criminal Lawyer Mecklenburg DWI AttorneyThe attorney, Sara Buffett, boarded a late night flight for London and took her seat in first class. Things got off to a bad start when the plane’s takeoff was delayed for nearly an hour. Buffett decided to take a sleep medication that she used to help with her insomnia to try and get some sleep during the long flight. For reasons that are still unclear, she then followed the pill with at least three glasses of wine. Making matters even worse, she then refused to eat dinner.

 

The pill and the wine must not have interacted well, given that only a few hours later the pilot was forced to turn the plane around and make an unscheduled landing in Philadelphia. Reports indicate that Buffett became aggressive with the flight crew and, in addition to causing damage to her own seat, attempted to break the aircraft window. Flight attendants tried unsuccessfully to restrain her and needed help from passengers to wrap her legs in tape and tie her hands with plastic ties.

 

Once the plane landed in Philly, police officers removed her forcibly from the cabin. Buffet has now been charged with intimidating a flight crew member and interfering with a flight crew member’s duties. Though the behavior was certainly not good, many people might be surprised to learn that such charges can result in not only a stiff fine, but potential imprisonment for up to 20 years.

 

Buffett was specifically charged with a violation of 49 U.S. Code Section 46504, which states:

 

An individual on an aircraft in the special aircraft jurisdiction of the United States who, by assaulting or intimidating a flight crew member or flight attendant of the aircraft, interferes with the performance of the duties of the member or attendant or lessens the ability of the member or attendant to perform those duties, or attempts or conspires to do such an act, shall be fined under title 18, imprisoned for not more than 20 years, or both. However, if a dangerous weapon is used in assaulting or intimidating the member or attendant, the individual shall be imprisoned for any term of years or for life.

 

Thankfully for Buffett, the only “weapon” used during her tirade was the remote control from the in-flight entertainment consoles. Reports indicate she used the remote to smash the aircraft window. Though the remote could have eventually caused damage, it would be difficult to imagine a prosecutor making the case that it qualifies as a dangerous weapon. Given this, she won’t need to worry about a possible life sentence for her mid-flight outburst.

 

If you or someone you know has been charged with a crime and is in need of the services of an experienced criminal defense attorney, please give me a call to set up an appointment today. Arnold & Smith, PLLC is a Charlotte based criminal defense, traffic violation defense and civil litigation law firm servicing Charlotte and the surrounding area. If you or someone you know need legal assistance, please contact Arnold & Smith, PLLC today at (855) 370-2828   or find additional resources here.

 

 

About the Author

Brad Smith Charlotte Criminal and DWI LawyerBrad Smith is a Managing Member of Arnold & Smith, PLLC, where he focuses on the areas of criminal defense, DUI / DWI defense and traffic defense.

Mr. Smith was born and raised in Charlotte. He began his legal career as an Assistant District Attorney before entering private practice in 2006.

In his free time, Mr. Smith enjoys traveling, boating, golf, hiking and spending time with his wife and three children.

 

 

Sources:

 

http://abovethelaw.com/2015/07/biglaw-partner-gets-wasted-on-plane-causes-mid-atlantic-flight-diversion/

 

 

Image Credit:

 

http://www.freeimages.com/photo/airplane-1450830 

 

 

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Charlotte DWI and Criminal Defense Attorney J. Bradley Smith of Arnold & Smith, PLLC answers the question “Can the police search my car without a warrant?”

 

Carrie Underwood tried to warn us ten years ago of the damage she can inflict on a vehicle.  In her 2005 hit song, “Before He Cheats,” Underwood sings of taking a Louisville slugger to a cheating boyfriend’s truck headlights.  That Louisville slugger would have come in handy on July 11th, albeit under very different circumstances.

Carrie Underwood Charlotte Criminal Lawyer Mecklenburg DUI AttorneyThe country music star tweeted that her dogs had somehow managed to lock themselves in her vehicle, along with her four-month-old son, Isaiah.  With the help of her brother-in-law, Underwood broke a window to free her son and dogs.  Thankfully, Underwood’s frightening moment had a happy ending.

Now, as a result of a freak accident, Underwood is raising nationwide awareness of the dangers of leaving children and pets in unattended vehicles; her tweets about the ordeal were disseminated to her 4.6 million followers.

In a similar story out of England last week, five-year-old Zavi Ahmed helped save a baby girl who was locked in her grandparents’ car at a grocery store.  Police had smashed the rear window of the vehicle, but they couldn’t fit inside to open a door or grab the keys.  Wearing a Batman costume, young Zavi heroically crawled through the smashed window and freed the little girl.

As July brings scorching heat across the state, remember never to leave children or pets in an unattended vehicle.  Children are at greater risk for heatstroke because their bodies warm at a rate three to five times faster than adults.  Leaving a child in an unattended vehicle may also result in criminal charges to the responsible adult.  Just last year, two Iredell County parents were charged with involuntary manslaughter and felony child abuse after their four-week-old child died as a result of being left in a hot car for two hours.

Do not be afraid to act if you walk by a car on a warm day and see that a child left alone in a vehicle appears to be in distress.  First, call 911 and make law enforcement aware of the situation.  If you believe waiting for the police to arrive will endanger the life of the child, take necessary action to free the child.  Good Samaritan Laws in North Carolina provide immunity from liability for those individuals who voluntarily act to render first aid in an emergency situation.

Freeing pets from unattended vehicles requires a slightly different process.  Under North Carolina law, your first step should be to call 911, animal control, or the fire department.  After making that call, make a reasonable effort to locate the owner of the vehicle.  For example, if you are in a Wal-Mart parking lot, go into Wal-Mart and have an employee make an announcement over the intercom.  Once you have made a reasonable effort to locate the owner of the vehicle, wait for the law enforcement officer, animal control officer, or firefighter to arrive.  Only they may enter the vehicle once it is determined that the animal is in distress.

If you or someone you know has been charged with a crime and is in need of the services of an experienced criminal defense attorney, please give me a call to set up an appointment today. Arnold & Smith, PLLC is a Charlotte based criminal defense, traffic violation defense and civil litigation law firm servicing Charlotte and the surrounding area. If you or someone you know need legal assistance, please contact Arnold & Smith, PLLC today at (855) 370-2828   or find additional resources here.

 

 

About the Author

Brad Smith Charlotte Criminal and DWI LawyerBrad Smith is a Managing Member of Arnold & Smith, PLLC, where he focuses on the areas of criminal defense, DUI / DWI defense and traffic defense.

Mr. Smith was born and raised in Charlotte. He began his legal career as an Assistant District Attorney before entering private practice in 2006.

In his free time, Mr. Smith enjoys traveling, boating, golf, hiking and spending time with his wife and three children.

 

 

Sources:

 

http://www.wsoctv.com/news/news/local/police-charge-parents-after-death-4-week-old-left-/ngtkH/

http://www.people.com/article/carrie-underwood-breaks-into-car

https://www.yahoo.com/parenting/5-year-old-dressed-as-batman-saves-toddler-trapped-124338929642.html

http://www.shelbystar.com/article/20150518/News/305188773

http://www.ncleg.net/EnactedLegislation/Statutes/HTML/BySection/Chapter_14/GS_14-363.3.html

http://www.ncleg.net/EnactedLegislation/Statutes/HTML/BySection/Chapter_90/GS_90-21.14.html

http://newsok.com/child-safety-organization-praises-carrie-underwood-for-breaking-window-to-get-son-dogs-out-of-locked-car/article/5433671

 

 

Image Credit:

Carrie Underwood performing at the World Arena in Colorado Springs, Colorado – Author the_diet_starts_mond ay from Colorado

https://upload.wikimedia.org/wikipedia/commons/4/46/CarrieUnderwoodAtTheWorldArena.jpg 

 

 

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Use of criminal law to address societal problems leads to over-criminalization

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J. Bradley Smith of Arnold & Smith, PLLC answers the question “Should I ever plead guilty to a charge?”

 

The passage of the Controlled Substances Act by the United States Congress in 1970 represented perhaps the largest single legislative effort to address societal problems by use of the criminal law.

Handcuffs in hand Charlotte Criminal Defense Lawyer Mecklenburg DWI AttorneyThe arc of the Controlled Substances Act—a response to the societal unrest of the late 1960s and the dark side of the hippy era laid bare by the Manson family murders and other gruesome drug-fueled acts—has seen states enact their own Controlled Substances Act analogues, strengthening drug laws and enhancements of drug-related criminal sentences throughout the 1980s and 1990s, followed by a kind of about-face in recent years as state and federal officials face an ever-expanding non-violent prison population at the same time they confront ever-deepening budget woes.

Whether the Controlled Substances Act was a good idea and whether it has served a useful purpose is not the inquiry of this post. Instead, the Act is a useful and prominent example of a larger phenomenon—the use of the criminal law to address societal problems.

When does the criminalization of behavior in order to address societal problems go too far?

Writing in the Boston Herald, Heritage Foundation legal scholar Jordan Richardson defines “over-criminalization” as the “overuse or misuse of criminal law to address societal problems.” Richardson writes that over-criminalization manifests in a variety of ways, from “overly broad definitions of criminal acts… [to] excessively harsh sentencing and criminal sanctions for simple mistakes or accidents.”

Richardson cites some extreme examples in his essay, including the case of Steven Pruner, who was sentenced in 2011 to serve forty-five days in jail for selling hot dogs from a food cart without a license near Duke University in Durham, North Carolina. Three Florida fishermen, Richardson notes, were sentenced to serve more than six years in prison after they imported lobsters in plastic sheeting, as opposed to paper, as regulations required.

All too often, Richardson writes, laws that We the People designed for our own benefit and protection ensnare… us! Take for instance local ordinances regarding the handling of foodstuffs and appropriate facilities for storing, handling and serving food. These ordinances were designed to ensure the safety and suitability of food items served in restaurants. In Fort Lauderdale, Florida, however, these regulations were used by officials to threaten 90-year-old charity worker Arnold Abbot with arrest and a $500 fine after he was found feeding homeless people in a city park. After Abbott’s case was publicized, local officials backed down, and Abbott was permitted to continue his charitable works.

In New Jersey, meanwhile, a single mother from Pennsylvania named Shaneen Allen faced a mandatory three-year prison sentence after she was found to possess a handgun in her car. Allen had registered the handgun in Pennsylvania, and it was legal for her to carry it there. It was not legal for Allen to carry her gun in New Jersey. Allen did not know that. Only a pardon from Gov. Chris Christie saved her from prison.

At a time when Americans are exploring the dynamics of the relationship between citizens and law-enforcement officers, perhaps we should also examine why we have forced law-enforcement officers into so many areas of our personal lives and the personal lives of our fellow citizens through our criminal laws.

If you or someone you know has been charged with a crime and is in need of the services of an experienced criminal defense attorney, please give me a call to set up an appointment today. Arnold & Smith, PLLC is a Charlotte based criminal defense, traffic violation defense and civil litigation law firm servicing Charlotte and the surrounding area. If you or someone you know need legal assistance, please contact Arnold & Smith, PLLC today at (855) 370-2828   or find additional resources here.

 

 

About the Author

Brad Smith Charlotte Criminal and DWI LawyerBrad Smith is a Managing Member of Arnold & Smith, PLLC, where he focuses on the areas of criminal defense, DUI / DWI defense and traffic defense.

Mr. Smith was born and raised in Charlotte. He began his legal career as an Assistant District Attorney before entering private practice in 2006.

In his free time, Mr. Smith enjoys traveling, boating, golf, hiking and spending time with his wife and three children.

 

 

Sources:

http://www.bostonherald.com/news_opinion/opinion/op_ed/2015/06/jordan_richardson_too_many_ordinary_people_caught_in_web_of

http://dailysignal.com/2014/05/23/jail-sentence-selling-hot-dogs/

 

 

Image Credit:

“Želízka pro jednu z hráček” by Janakovaz – Own work. Licensed under CC BY-SA 3.0 via Wikimedia Commons – http://commons.wikimedia.org/wiki/File:%C5%BDel%C3%ADzka_pro_jednu_z_hr%C3%A1%C4%8Dek.tif#/media/File:%C5%BDel%C3%ADzka_pro_jednu_z_hr%C3%A1%C4%8Dek.tif

 

 

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J. Bradley Smith of Arnold & Smith, PLLC answers the question “Can I be arrested without evidence against me?”

 

The United States Supreme Court has thrown out the conviction of a man who prosecutors accused of threatening his wife, coworkers, a kindergarten class and law-enforcement officials in online social-media posts.

Blogger icon Charlotte Criminal Lawyer Mecklenburg DWI AttorneyThe man, Anthony Douglas Elonis, posted what he later described as “rap lyrics” on his Facebook page. The posts contained violent statements about Elonis’s wife and others. Federal officials charged Elonis with violating a criminal statute that makes it a crime to transmit in interstate commerce “any communication containing any threat… to injure the person of another,” according to the National Law Review.

Elonis was convicted after a jury trial. The United States Court of Appeals for the Third Circuit upheld his conviction. Elonis appealed to the Supreme Court, arguing that his trial court committed error when it refused to provide an instruction to the jury, before jurors began deliberating, providing that Elonis intended the Facebook posts to constitute threats.

Instead, the trial court told jurors that Elonis was guilty if he intentionally made “a statement in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily injury or take the life of an individual.” In other words, the jury was told that if a reasonable person would have read Elonis’s posts as threats, then he was guilty, regardless of whether he intended the statements to serve as threats.

In a seven-to-two decision, the Supreme Court reversed the trial court and the Third Circuit Court of Appeals, holding that jurors should have considered Elonis’s mental state before finding him guilty of violating the federal statute. The statute itself “does not explicitly require proof of intent,” the National Law Review notes, but courts have long interpreted criminal statutes as applicable only if the wrongdoer is conscious of the criminality of his or her act.

This concept—guilty mind, or mens rea—dates all the way back to the Roman criminal code. In order to be found guilty of a crime at common law, or pursuant to the body of law that serves as the basis for the American legal system, a defendant must exhibit mens rea as well as actus reus—a guilty mind and a guilty act.

“Federal criminal liability,” wrote Chief Justice John Roberts for the high court’s majority in Elonis, “does not turn solely on the results of an act without considering the defendant’s mental state.”

Some statutes do, however, impose criminal liability for acts, even where an accused lacked the requisite “guilty mind” to commit a criminal act. These statutes are known as “strict liability” statutes. One common “strict liability” statute, found in the laws of most, if not all, states, is the statutory-rape statute. In order to be found guilty of statutory rape, an accused of a certain age must only be found to have had sexual relations with a younger person of a certain age. An accused is guilty only by virtue of engaging in the sexual act; his or her state-of-mind is irrelevant.

Many courts and legal experts have voiced concern in recent years about the spate of new criminal statutes imposing criminal liability upon persons absent any showing of mens rea.

If you or someone you know has been charged with a crime and is in need of the services of an experienced criminal defense attorney, please give me a call to set up an appointment today. Arnold & Smith, PLLC is a Charlotte based criminal defense, traffic violation defense and civil litigation law firm servicing Charlotte and the surrounding area. If you or someone you know need legal assistance, please contact Arnold & Smith, PLLC today at (855) 370-2828   or find additional resources here.

 

 

About the Author

jbradley.jpgBrad Smith is a Managing Member of Arnold & Smith, PLLC, where he focuses on the areas of criminal defense, DUI / DWI defense and traffic defense.

Mr. Smith was born and raised in Charlotte. He began his legal career as an Assistant District Attorney before entering private practice in 2006.

In his free time, Mr. Smith enjoys traveling, boating, golf, hiking and spending time with his wife and three children.

 

 

Sources:

http://www.natlawreview.com/article/supreme-court-limits-criminal-law-s-reach-to-social-media-posts-avoids-first-amendme

 

 

Image Credit:

http://commons.wikimedia.org/wiki/File:Blogger_Shiny_Icon.svg

 

 

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J. Bradley Smith of Arnold & Smith, PLLC answers the question “Should I talk to the police?”

 

A man after a woman’s heart may be prone to a bit of puffery, but legislators in New Jersey want to criminalize that puffery when it rises to the level of deception.

Broken Heart Uptown Charlotte Criminal Lawyer Mecklenburg DWI AttorneyAssemblyman Troy Singleton, D-Burlington, has introduced a bill in the New Jersey legislature that would make “sexual assault by fraud” a criminal offense. “Sexual assault by fraud” is defined as “an act of sexual penetration to which a person has given consent because the actor has misrepresented the purpose of the act or has represented he is someone he is not.”

The bill is the brainchild of 37-year-old activist Mischele Lewis. She told Philly.com that the bill is important “because trying to deceive anyone for the purpose of sexual gratification is just wrong.” She said that before someone consents “to be intimate with anybody,” one should know “one-hundred percent” who the person is.

Lewis said it is morally wrong to lie to a putative lover, whether one is lying about being married, lying about one’s profession, about one’s “criminal history, parental history, marital history…”

Kathleen Bogle, an assistant professor of sociology and criminal justice at La Salle University in Philadelphia, told Philly.com that law-enforcement authorities actively pursue “sexual predators who try to lure victims into sexual situations through deceit.” However, she said, the legislation proposed by Singleton may cast too wide a net. While she agreed with Lewis that lying to get sex is immoral, it would only be criminal in a fraction of instances.

In a 2013 article in the Yale Law Review, Yale law professor Jed Rubenfield wrote that sex-by-deception should be considered rape, since “a consent procured through deception is no consent at all.”

Lewis became an activist on the issue after she found out her paramour was not really a secret agent working for the British Government, as he had claimed. He had connections with the United Kingdom’s criminal justice system—he had served time there for bigamy and had also been convicted of indecent assault of a minor.

Lewis paid the man $5,000 for a phony security clearance, an act that was criminal: Last year, the man pled guilty to third-degree deception. He was sentenced to three years in a New Jersey prison and ordered to pay the money back.

Prosecutors had tried to charge Lewis’s paramour with sexual assault by coercion, but a grand jury declined to indict the man on that charge.

Singleton told NJ.com that the new legislation will provide a prosecutorial remedy for situations like Lewis’s. “This legislation is designed to provide our state’s judiciary with another tool to assess situations where this occurs and potentially provide a legal remedy to those circumstances,” Singleton said.

Depending on the circumstances, a violation of the proposed act could serve as a first-degree or a second-degree crime, punishable by anywhere from five to twenty years in prison.

If you or someone you know has been charged with a crime and is in need of the services of an experienced criminal defense attorney, please give me a call to set up an appointment today. Arnold & Smith, PLLC is a Charlotte based criminal defense, traffic violation defense and civil litigation law firm servicing Charlotte and the surrounding area. If you or someone you know need legal assistance, please contact Arnold & Smith, PLLC today at (855) 370-2828   or find additional resources here.

 

 

About the Author

jbradley.jpgBrad Smith is a Managing Member of Arnold & Smith, PLLC, where he focuses on the areas of criminal defense, DUI / DWI defense and traffic defense.

Mr. Smith was born and raised in Charlotte. He began his legal career as an Assistant District Attorney before entering private practice in 2006.

In his free time, Mr. Smith enjoys traveling, boating, golf, hiking and spending time with his wife and three children.

 

 

Sources:

http://www.philly.com/philly/living/20150526_Watch_out__lovers_who_lie__Sexual_assault_by_deception_could_become_a_criminal_offense.html

http://www.nj.com/politics/index.ssf/2014/11/rape_by_fraud_nj_lawmaker_introduces_bill_to_make_it_a_crime.html

 

 

Image Credit:

http://commons.wikimedia.org/wiki/File:Broken_Heart.jpg

 

 

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