Charlotte Criminal Lawyer Blog

Conviction overturned because man’s fish were not “tangible objects”

Published on: February 26, 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?”

Remember Enron?

It seemed like such a big deal until all the malfeasance that (allegedly) caused 2009’s Great Recession came to light, causing the collapse and usurpation of thousands of businesses large and small, nationwide.

Enron was an energy company. It collapsed. People were mad and, true to form, politicians seized on the madness, blamed their opponents for causing it, and proposed a solution politicians are often (or always) apt to propose: a new law.

Out came Sarbanes-Oxley, an Act designed to combat the kind of white-collar financial fraud that led to Enron’s demise. Like many laws, the Act was written broadly, was “too broad and undifferentiated,” according to United States Supreme Court Justice Elena Kagan, “with too-high maximum penalties, which give prosecutors too much leverage and sentences too much discretion.”

Manslaughter charge for teen who encouraged friend to commit suicide

Published on: February 24, 2015 | On behalf of Arnold & Smith, PLLC

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

The criminal law, it is said, evolves as technology does, and criminal codes and doctrines grow to fit the new circumstances and technologies that criminals, would-be criminals and unknowing criminals commit. It should come as no surprise, then, that longstanding criminal doctrines are being applied to actions taken on devices that have become ubiquitous in modern American life: phones.

Except, devices that people carry around these days have come a long way from the banana-sized box lawyer Johnny Cochran made famous carrying around in the early-to-mid 1990s. It is said that the law cannot keep pace with society, evolving about twenty years slower than the culture, but even the United States Supreme Court has caught on to the uniqueness of the modern “cell phone,” calling the devices “minicomputers that also happen to have the capacity to be used as a telephone” in a landmark case last year called Riley v. California.

In that case, the high court unanimously rejected the United States government’s position that when a person is arrested, a law-enforcement officer is entitled to seize everything off the arrestee’s phone. The court ruled officers need a warrant to do that.

Phones—or whatever one calls them nowadays—are still bringing individuals into criminal jeopardy, however, as a recent case from Massachusetts illustrates.

Criminal traffic rules shaped by justices who have had little contact with traffic, courts

Published on: February 19, 2015 | On behalf of Arnold & Smith, PLLC

Charlotte DWI and Criminal Defense Attorney J. Bradley Smith of Arnold & Smith, PLLC answers the question “What am I obligated to do if I’ve been pulled for Drinking and Driving?”

The United States Supreme Court is comprised of nine judges whose legal educations began at either Harvard or Yale. With the exception of Ruth Bader Ginsburg—who transferred to Columbia University School of Law—all nine obtained their law degrees from Harvard or Yale.

The (alleged) hoity-toity backgrounds of the justices—underscored in a January 22, 2015 Washington Post piece—came into laser focus in oral arguments in Rodriguez v. United States, according to Bloomberg News.

The issue in Rodriguez was whether police can use a dog to sniff for drugs around a vehicle during a routine traffic stop. Harvard Law Professor Noah Feldman, who observed the arguments, suggested the “browbeating… conservatives” and “assist[ing]… liberals” on the court, through their questioning of lawyers for Rodriguez and the United States, revealed their ideological divides.

Those divides—and who the justices are—both Bloomberg and the Post suggested, are important issues that sometimes define and nearly always, at least, inform their decisions.

With respect to traffic stops, at least a few of the justices—unlike many high-profile political leaders who use professional drivers and have not driven a car in decades—actually have experience with roadway traffic. In 2011, Justice Antonin Scalia was cited after rear-ending a vehicle on George Washington Memorial Parkway. Justice Stephen Breyer was hit by a car while biking in 1993, proving he has at least had contact with an automobile.

Insanity, knowledge of right versus wrong tested in trial of American Sniper’s killer

Published on: February 17, 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?

American Sniper Chris Kyle and friend Chad Littlefield were in an environment both men knew well when “troubled drug user” Eddie Ray Routh shot them dead. All three men were military veterans—Kyle a Navy SEAL and famed Iraq-war sniper and Routh a former marine corporal. Littlefield was Kyle’s neighbor and had teamed with him to help veterans returning from tours of duty.

On Feb. 2, 2013, Littlefield and Kyle had taken Routh to “the expansive Rough Creek Lodge and Resort” south of Fort Worth, Texas, to help him with mental issues stemming from his tours of duty in Iraq and Haiti, according to CNN and ABC News.

Late that day, a hunting guide found Kyle’s and Littlefield’s bodies; an all-points-bulletin was issued for Routh, who fled in Kyle’s pickup truck to his sister’s house 65-miles away from the shooting range. Routh’s sister described Routh as being in a state of psychosis; alarmed, she phoned the authorities.

Law-enforcement officers eventually caught Routh and arrested him. Police video from before Routh’s arrest show Routh telling officers that “Anarchy has been killing the world. I don’t know if I’m going insane. Is this about hell walking on earth right now?”

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.