Charlotte Criminal Lawyer Blog

In many cases, the “when” in a criminal case is still up to the Prosecutor

Published on: February 12, 2015 | On behalf of Arnold & Smith, PLLC

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

A criminal defense attorney was recently admonished by a District Court judge for seeking to have a motion heard.

“The District Attorney controls the docket,” the judge told the attorney, meaning that if the attorney wanted to have her motion heard, she would have to get the District Attorney to call the case.

Until about twenty years ago, prosecutors in North Carolina had the authority to set the criminal court calendar. Then, in the wake of a lawsuit brought against then-Durham County prosecutor James Hardin, Jr., Simeon v. Hardin, 451 S.E.2d 858 (N.C. 1994), the State legislature removed some prosecutorial authority in setting criminal calendars.

In the Simeon case, the complainants alleged that the district attorney held them in jail in an effort to coerce guilty pleas, listed cases on the court calendar even though he had no intention of calling them, and failed to call cases on agreed-upon dates, even though witnesses had flown in at considerable expense, according to a treatise on prosecutorial docket control published by Andrew Siegel in 2005. These tactics forced defense counsel to engage in “unnecessary and repetitive case preparation,” and—the complainants alleged in Simeon—the district attorney “used control of the docket to punish disfavored defense counsel and to extract pretrial punishment[.]”

Legislature wants extra jail time for any “nefarious drone enterprise”

Published on: February 10, 2015 | On behalf of Arnold & Smith, PLLC

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

Incidents involving drones are on the rise, and state legislatures are not waiting for the Federal Aviation Administration or the United States Congress to act on promulgating comprehensive civil and criminal rules on the unmanned aircraft.

One state—Washington—is seeking to add to its criminal code a provision allowing prosecutors to allege a “nefarious drone enterprise” if drones are used in other crimes “from running drugs to scoping a house for robbery,” according to the San Francisco Chronicle. If it is proven that a criminal used a drone in connection with a criminal enterprise, an extra year in prison can be added to the criminal’s sentence.

Sen. Pam Roach, who is sponsoring the legislation, said the state needs to get ahead of the curve on a quickly emerging technology that is making “advanced, affordable personal-use unmanned aircraft” a reality. Unlike twenty other states—including North Carolina—the State of Washington has not issued any restrictions on drone use in the state.

University of Washington law professor Ryan Calo observed that the bill was tightly focused, adding “a year to the sentencing range that dictates how judges can punish an offense.” Calo wondered, however, whether the underlying offense was actually any worse simply because a drone was employed. “It would be like saying the crime of assault is different if it’s done with a hammer,” Calo said.

State legislature reshaping criminal code in wake of legalized marijuana use

Published on: February 5, 2015 | On behalf of Arnold & Smith, PLLC

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

The Washington State legislature is considering changes to the state’s criminal code that would dramatically alter the manner in which marijuana-related crimes are prosecuted in the state.

Under a bill sponsored by Republican State Senator Ann Rivers, most marijuana-related crimes would be reduced from felonies to misdemeanors. Voters in Washington legalized the recreational use of marijuana in a statewide referendum in 2012.

Seattle’s city attorney John Schochet said he wants the possibility of jail time for “lower-end violators” eliminated. He likened minor offenses to buying a bunch of beer at Costco and selling it out of the trunk of his car. If he sold enough marijuana in that fashion, he could be subject to a felony trafficking charge.

Attorneys like Schochet and city attorney Pete Holmes want to eliminate criminal penalties for sharing marijuana. As it stands, it is a felony to give any amount of marijuana to a friend, according to the Seattle Post-Intelligencer.

Schochet and Holmes also want to see criminal penalties lessened and removed for users who make their own “homegrown” weed. Under current law, it is illegal to grow one’s own marijuana in Washington. In other states that have legalized marijuana use, growing a small amount of marijuana for personal use is permitted. In Colorado, for instance, it is legal for individuals who are 21-years-old or older to grow as many as six plants, as long as they are kept in an “enclosed, locked space.” Alaska also allows users to grow up to six plants, while users in Oregon can grow as many as four plants and can legally possess as many as eight ounces of usable marijuana.

Change in “equitable sharing” may mean less dubious seizures of “criminal” cash, property

Published on: February 3, 2015 | On behalf of Arnold & Smith, PLLC

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

Kenneth Lamont Clark runs a strip club and his patrons pay for their entertainment with cash. A lot of cash. So when deputies in Harnett County who were partnering with a United States Drug-Enforcement Agency task force pulled over and searched Clark, they found cash. Lots of it. Two stops—the first on Feb. 26, 2013 and the second on March 12, 2014—netted law-enforcement officials some $130,000.

Clark was not issued a citation in either of the stops, nor was he charged with a crime. Nonetheless, since the deputies who pulled Clark over claimed drug-sniffing dogs “alerted to drugs” in his vehicle, they seized Clark’s money.

Federal law allows agents to seize currency that “was used, or intended to be used, in exchange for controlled substances, or [currency that] represents proceeds of trafficking in controlled substances[.]” North Carolina law contains no similar forfeiture law. In order to get around that, local law-enforcement agencies partner with law-enforcement officers in federal agencies. Under a program called “equitable sharing,” if local law-enforcement officials make the bust, they get to keep most of the money seized.

Last month, United States Attorney General Eric Holder issued an order placing more restrictions on the seizure of assets pursuant to the equitable-sharing program. The restrictions mean that it will be tougher for local law-enforcement officials to seize and keep proceeds of alleged criminal activity unless the alleged criminal activity “relates to public safety concerns, including firearms, ammunition, explosives, and property associated with child pornography.”

Federal, state governments flooding American society with “crimes”

Published on: January 29, 2015 | On behalf of Arnold & Smith, PLLC

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

On average, American professionals commit several crimes per day, according to lawyer Harvey Silverglate. He wrote a book on the subject titled Three Felonies a Day. Silverglate and many others—including the National Association of Criminal Defense Attorneys—think Americans have to contend with too many criminal laws, so many in fact that most Americans are unaware of what, exactly, is illegal.

At common law, in order to be found guilty of a crime, a prosecutor had to demonstrate that a person possessed both a guilty mind—that is, he or she intended to commit the crime—and that the person did indeed commit the crime. American criminal law developed out of the British common law system, which in turn developed out of the Roman Civil Law system. The Romans called the guilty act “Actus reus” and the guilty mind “Mens rea.” A prosecutor needed to prove both to convict.

At the time of the founding of the United States, the federal government was vested by the Constitution of the United States with certain limited powers. The power to police common-law crimes was reserved to the states. The states employed the common law in order to provide and maintain order, and over time, states passed criminal codes or statutes—written laws—that superseded, replaced or were in addition to common-law crimes.

Eventually the federal government got into the act of policing crimes. The Congress passed laws creating certain agencies—the Federal Bureau of Investigators, the Drug-Enforcement Agency, the Bureau of Alcohol, Tobacco and Firearms—and gave to these agencies the authority to arrest, prosecute and imprison people for violating new federal criminal statutes.

Depending on how they are used, self-administered breath tests may be valuable

Published on: January 27, 2015 | On behalf of Arnold & Smith, PLLC

Charlotte DWI and Criminal Defense Attorney J. Bradley Smith of Arnold & Smith, PLLC answers the question “Are breath test results always accurate?”

New, portable breath-testing machines sold by Breathometer, Inc. and other companies are making waves in the public marketplace, particularly among college-aged and twenty-something adults. Users of the device in North Carolina should beware: it will probably not help you if you are pulled over for drunk driving.

What is it?

In plain terms, the Breathometer and the newer “Breeze” products are portable, handheld devices that people can use to test their own breath-alcohol content. Entrepreneur Charles Michael Yim founded Breathometer, Inc. in 2012 in order “to build the world’s first portable breath analysis platform to help people make smarter decisions, improve healthcare and save lives.”

The original Breathometer machine plugged directly into the audio jack of a smartphone. The latest “Breeze” product works in a similar fashion, using “a next-generation electrochemical fuel cell sensor[.]” It is an “FDA registered, law-enforcement grade product,” according to Breathometer, Inc.

New hacking legislation could make criminals of us all, say insiders

Published on: January 22, 2015 | On behalf of Arnold & Smith, PLLC

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

Tech industry insiders are guffawing at new cybersecurity initiatives unveiled by the Obama administration. According to insiders familiar with the proposals, new cybersecurity-targeted criminal laws will make criminals of us all.

According to Paul Wagenseil of Tom’s Guide US, the proposed changes to the 1984 Computer Fraud and Abuse Act would “make many commonplace security research practices—and media reporting on those practices—federal crimes.”

Nate Cardozo, an attorney with the Electronic Frontier Foundation in San Francisco, California, told researchers and intellectual property professionals at a Washington, D.C. conference that sharing passwords for online accounts or even sharing an HBO “GO” password with a friend could constitute felonies under the proposed legislation. HBO—short for “Home Box Office”—is a cable-television based distributor of movies and entertainment programs.

In sum, the proposals “broaden the definition of computer crime and stiffen penalties for existing crimes,” with maximum penalties for violations being pushed from ten years to twenty years.

Ignorance of law, legal rights at issue in North Carolina-related Supreme Court case

Published on: January 20, 2015 | On behalf of Arnold & Smith, PLLC

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

A recent United States Supreme Court has some legal observers complaining that police officers are entitled to mistakes of law, while ordinary citizens are not. The decision underlines, however, the ignorance many citizens have about their own rights under the Fourth Amendment to the Constitution of the United States.

As Maynor Javier Vasquez drove a Ford Escort north a little before eight o’clock in the morning on April 29, 2009, on Interstate 77 in Dobson, North Carolina, Sergeant Matt Darisse of the Surry County Sheriff’s Department—who was observing northbound traffic—thought the Vasquez looked “stiff and nervous.”

Sgt. Darisse pulled out and followed Vasquez, ultimately signaling for him to pull the car over. After he pulled Vasquez over, Sgt. Darisse explained that as long as Vasquez’s license and registration checked out, he would be let off with a warning ticket. Sgt. Darisse had pulled Vasquez over, the officer explained, because one of the brake lights on the Ford Escort was out.

That one shuddered brake light became a pesky issue on the years of appeals that arose out of the encounter that began between Sgt. Darisse and Vasquez. In the end, the North Carolina state appellate courts agreed that the brake-light statute, using the language “a” stop lamp, only requires one working brake light on a motor vehicle.

Road rage, forgery convictions no obstacle to employment in Family and Children Services

Published on: January 15, 2015 | On behalf of Arnold & Smith, PLLC

Charlotte DWI Lawyer Brad Smith answers the question: A past conviction is keeping me from finding work what can I do?

The State of Georgia has employed a woman to protect its most vulnerable children despite her convictions for forgery and on charges stemming from a 2011 road-rage incident.

The woman—Paige Newsome—was employed last May in Cherokee County by the Georgia Division of Family and Children Services as a child-protection investigator. Applicants for employment by the State of Georgia are required to report any convictions or pending criminal charges on their employment applications. Newsome reported four traffic convictions, and she noted that charges were pending against her related to defrauding her father out of more than $1,700 by forging his name on checks.

Newsome failed to report that she pled guilty to charges in Louisiana stemming from a 2011 Interstate 20 road-rage incident in which Newsome allegedly pointed a revolver at another driver after cutting in front of him. The State of Georgia discovered the road-rage conviction but hired Newsome anyway.

A month after Newsome began working for the Division of Family and Children Services, she pleaded guilty to two counts of forgery for signing her father’s name to checks without his permission. She was fined $250 and placed on probation for a year.

Trooper says accident not bus driver’s fault, charges her with reckless driving anyway

Published on: January 13, 2015 | On behalf of Arnold & Smith, PLLC

J. Bradley Smith of Arnold & Smith, PLLC answers the question “Can I represent myself on a traffic ticket?”

A 38-year-old Gaston County woman has been charged with reckless driving after a school bus crash that injured 23 middle school students, despite the fact that a North Carolina State Trooper said the crash was not caused by “something she was doing.”

The driver—Annette Phillips—was charged Thursday after the school bus she was driving flipped on its side on a curvy stretch of Chapel Grove Road in rural southwestern Gaston County. Phillips was transporting students home from Southwest Middle School in Gastonia. According to WCCB, Phillips own son was riding on the bus at the time of the accident.

Trooper John Burgin told WBTV that an overhead storage compartment door fell open, causing a distraction and blocking Phillips’ line of site. When Phillips tried to clear her line of site, she ran the bus off the right side of the road, then overcorrected to the left, tipping the bus on its side.

Troopers say the bus was traveling anywhere from 30 to 40 miles per hour before the crash. The posted speed limit in the area is 45 miles-per-hour, but the stretch of Chapel Grove Road where the crash occurred bends sharply over a creek and up a steep hill. Warning signs advise drivers not to exceed 25 miles-per-hour around the curves, but troopers conceded those warnings are only suggestions.