Ignorance of the Law is no excuse, unless you are a police officer.

Supreme Court holds that reasonable mistake of law is excusable.  On the morning of April 29, 2009, Sergeant Matt Darisse of the Surry County Sheriff ’s Department sat in his patrol car near Dobson, North Carolina, observing northbound traffic on Interstate 77. Shortly before 8 a.m., a Ford Escort passed by. Darisse thought the driver looked “very stiff and nervous,” so he pulled onto the interstate and began following the Escort. A few miles down the road, the Escort braked as it approached a slower vehicle, but only the left brake light came on. Noting the faulty right brake light, Darisse activated his vehicle’s lights and pulled the Escort over.  As a result of the vehicle stop, which lead to a consent search, the driver and passenger were both charged with attempted trafficking of cocaine.  They challenged the stop, but plead guilty to drug charges. Full opinion of Supreme Court here. Bottom line: Even if police pull you for the wrong reason like speeding 35 in 25 and the speed limit is actually 45, the stop is probably still legal, if the judge finds the mistake is reasonable.  Unless it is a clear violation of your 4th amendment right to privacy.  "An officer’s mistaken view that the conduct at issue did not give rise to such a violation—no matter how reasonable—could not change that ultimate conclusion." Read more "Ignorance of the Law is no excuse, unless you are a police officer."

Ferguson, and Self Defense and the Law

"Stand Your Ground" self defense laws in North Carolina? Use of Deadly Force by the police or by anyone is a hot topic.  Here are some thoughts on Ferguson, and information about the law of self defense in North Carolina from the Experts.  Jeff Welty has written a thoughtful overview of the grand jury process and the what happened.  John Rubin has previously written on the Self Defense laws that were passed in North Carolina in 2011. "Yesterday, the grand jury in St. Louis County, Missouri , declined to indict officer Darren Wilson in connection with the fatal shooting of Michael Brown. Some commentators have criticized the decision of the local prosecutor, Robert McCulloch, to present all the evidence to the grand jury, rather than only evidence that would support an indictment. I don’t think that’s a fair criticism, for reasons I explain below," by Jeff Welty, UNC School of Govermnent. "North Carolina law recognizes various circumstances in which a person may lawfully use force against the threat of harm. Through decades of decisions, the North Carolina appellate courts have recognized the right to defend oneself, other people, and one’s home and property, among other interests, and have developed rules on when those rights apply and amount to a defense to criminal charges. New G.S. 14-51.2, 14-51.3, and 14-51.4 address several of the circumstances in which a person may use defensive force. The statutes restate the law in some respects and broaden it in others. The courts will have to examine their procedures closely to give effect to the new statutory language. The new statutes are part of S.L. 2011-268 (H 650), which applies to offenses committed on or after December 1, 2011."  Whole article here, by John Rubin, UNC School of Government. N.C.G.S. 14-51.2 Home, workplace, and motor vehicle protection; presumption of fear of death or serious bodily harm. (a) The following definitions apply in this section: (1) Home. – A building or conveyance of any kind, to include its curtilage, whether the building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it, including a tent, and is designed as a temporary or permanent residence. (2) Law enforcement officer. – Any person employed or appointed as a full-time, part-time, or auxiliary law enforcement officer, correctional officer, probation officer, post-release supervision officer, or parole officer. (3) Motor vehicle. – As defined in G.S. 20-4.01(23). (4) Workplace. – A building or conveyance of any kind, whether the building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it, including a tent, which is being used for commercial purposes. (b) The lawful occupant of a home, motor vehicle, or workplace is presumed to have held a reasonable fear of imminent death or serious bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or serious bodily harm to another if both of the following apply: (1) The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a home, motor vehicle, or workplace, or if that person had removed or was attempting to remove another against that person's will from the home, motor vehicle, or workplace. (2) The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred. (c) The presumption set forth in subsection (b) of this section shall be rebuttable and does not apply in any of the following circumstances: (1) The person against whom the defensive force is used has the right to be in or is a lawful resident of the home, motor vehicle, or workplace, such as an owner or lessee, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person. (2) The person sought to be removed from the home, motor vehicle, or workplace is a child or grandchild or is otherwise in the lawful custody or under the lawful guardianship of the person against whom the defensive force is used. (3) The person who uses defensive force is engaged in, attempting to escape from, or using the home, motor vehicle, or workplace to further any criminal offense that involves the use or threat of physical force or violence against any individual. (4) The person against whom the defensive force is used is a law enforcement officer or bail bondsman who enters or attempts to enter a home, motor vehicle, or workplace in the lawful performance of his or her official duties, and the officer or bail bondsman identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer or bail bondsman in the lawful performance of his or her official duties. N.C.G.S. § 14-51.3. Use of force in defense of person; relief from criminal or civil liability. (a) A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that the conduct is necessary to defend himself or herself or another against the other's imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat in any place he or she has the lawful right to be if either of the following applies: (1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another. (2) Under the circumstances permitted pursuant to G.S. 14-51.2. (b) A person who uses force as permitted by this section is justified in using such force and is immune from civil or criminal liability for the use of such force, unless the person against whom force was used is a law enforcement officer or bail bondsman who was lawfully acting in the performance of his or her official duties and the officer or bail bondsman identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer or bail bondsman in the lawful performance of his or her official duties. (2011-268, s. 1.)     Read more "Ferguson, and Self Defense and the Law"

I-40 Challenge means more Troopers for the Holidays.

Additional troopers on the road for Thanksgiving Drivers can use a few simple safety tips while traveling this holiday season:
  • Do not tailgate
  • Use turn signals
  • Maintain appropriate speed
  • Plan ahead/use your mirrors
  • Do not text while driving
  • Wear your seatbelt
The I-40 Challenge will be conducted Wednesday, Nov. 26, 11 a.m. - 11 p.m. and again on Sunday, Nov. 30, 9 a.m. to 9 p.m. Read more "I-40 Challenge means more Troopers for the Holidays."

Do you need a “do-over”? And what is a Motion for Appropriate Relief?

Motion for Appropriate Relief   Did you get some bad advice?  Did you pay your ticket online without consulting an attorney?  Or you may have pled guilty due to coaxing by an officer or other unqualified party, and now your insurance has increased or you found out your license is suspended. If you believe your conviction was defective, there is a second chance available by a "Motion for Appropriate Relief" (MARs).  MARs can be filed for most criminal matters, including traffic violations, misdemeanors and felonies. For example, if you were convicted of a criminal offense and someone other than your attorney told you to plead guilty, that may be a defect that warrants an MAR. A MAR is a motion made after judgment to correct any errors that occurred before, during, or after a criminal trial or proceeding, including errors related to the entry of a guilty plea.  It is a legal mechanism that allows people who have been convicted of a crime to challenge their conviction because the conviction was obtained in violation of their Constitutional rights. The most common grounds raised in a MAR are:
  • violation of the right to effective assistance of counsel
  • Pleading guilty without advice of an attorney
  • Improper advice by unqualified parties such as police officers, DMV or Court personnel
  • newly discovered evidence
  • prosecutorial misconduct
  • actual innocence or
  • Illegality of sentence.
All the grounds for a Motion for Appropriate Relief under listed under N.C.G.S. § 15A-1415.    Under a related statute G.S. 15A-1414, a person convicted of a criminal offense may seek relief for any error that occurred before or during trial within 10 days after entry of judgment.   G.S. 15A-1417 describes the relief available when a court grants a motion for appropriate relief, including vacating of a conviction if the court finds it invalid for one of the reasons described in G.S. 15A-1415. An order vacating a conviction does not necessarily terminate the criminal case; the State may retry the defendant unless, in addition to vacating the conviction, the court enters an order dismissing the charges. The Court has the authority to order that an MAR or dismissal nunc pro tunc, a Latin phrase literally meaning "now for then," is a concept derived from the common law that is utilized by courts as clerical correction or as an equitable remedy. An order issued nunc pro tunc has retroactive legal effect, essentially modifying a previous order or entering an effective date of a court order retroactively. This can be critical when your license is suspended by DMV because of prior convictions that were obtained defectively.   Filing a Motion for Appropriate Relief can be very complicated depending on the case. An experienced attorney will review your case, and may need to interview witnesses, investigate the facts of the case, review the discovery that leads to new evidence, and review the entire history of the case from start to finish. Sometimes the court will require an evidentiary hearing to be held on the motion, where the lawyer will have to call witnesses, present evidence, and challenge the State's evidence, and make arguments to the court.   Hiring the right attorney for the job can be the difference between a winning motion and a losing motion.  Call today for a free consultation on whether an MAR is the right action for you. Read more "Do you need a “do-over”? And what is a Motion for Appropriate Relief?"