Taking your Driver’s License, even for a moment, may be Unconstitutional

  At 11:30 p.m. on 30 April 2012, Lilesville Police Chief Bobby Gallimore was on patrol. He noticed a parked car in a gravel area near Highway 74, and stopped to see if the driver needed assistance. Before approaching the car, Chief Gallimore ran the vehicle’s license plate through his computer and was advised that the car was owned by Keith Leak (defendant). Chief Gallimore spoke with defendant, who told him that he did not need assistance, and had pulled off the road to return a text message. Chief Gallimore then asked to see defendant’s driver’s license, and determined that the name on the license – Keith Leak – matched the information he had obtained concerning the car’s license plate. After examining defendant’s driver’s license, Chief Gallimore took it to his patrol vehicle to investigate the status of defendant’s driver’s license. It was undisputed that Chief Gallimore had no suspicion that defendant was involved in criminal activity. Defendant remained in his car while Chief Gallimore ran a check on his license and confirmed that his license was valid. However, the computer search revealed that there was an outstanding 2007 warrant for defendant’s arrest. Chief Gallimore asked defendant to step out of his car, at which point, defendant informed Chief Gallimore that he “had a .22 pistol in his pocket.” Defendant was arrested for possession of a firearm by a convicted felon; the record does not indicate whether defendant was ever prosecuted for the offense alleged in the 2007 arrest warrant State v. Leak (whole case.) TLDR: Court of Appeals (with a dissent) held that the defendant’s Fourth Amendment rights were violated when an officer, who had approached the defendant’s legally parked car without reasonable suspicion, took the defendant’s driver’s license to his patrol vehicle. This does not mean checkpoints are now illegal. Checkpoints are still legal, even though they are by definition, stops absent reasonable suspicion, because they are specifically authorized by statute, as long as they follow the applicable law. Read more "Taking your Driver’s License, even for a moment, may be Unconstitutional"

Expunctions, how do they work? What is a PJC?

Contrary to common belief, a PJC (Prayer for Judgment Continued) does not solve every problem.  They are not a silver bullet.  They are very helpful with certain kinds of traffic tickets, but they also indefinitely postpone a final judgment in a criminal case.  This can really hurt your future.  Without a final judgment, there cannot be an expunction. You should know that opportunities to expunge a criminal record in North Carolina are relatively rare. Instead, criminal records eligible for expunction in North Carolina are generally limited to the following three categories:
  • A first-time, nonviolent offense committed more than 15 years ago
  • A first-time offense committed under age 18/22
  • A charge that was dismissed or disposed “not guilty”
A CRIMINAL RECORD often gives rise to significant barriers to gainful employment, affordable housing, family unification, and a variety of other benefits and opportunities essential to productive citizenship. In North Carolina, an expunction is the destruction of a criminal record by court order. An expunction (also called an “expungement”) of a criminal record restores the individual, in the view of the law, to the status he or she occupied before the criminal record existed. With rare exception, when an individual is granted an expunction, he or she may truthfully and without committing perjury or false statement deny or refuse to acknowledge that the criminal incident occurred. The primary exception to this is for purposes of federal immigration. Please see North Carolina General Statutes §15A-151 for other exceptions. This summary provides details of the following twelve expunction statutes:
  • Juvenile Record………………………………… NCGS §7B-3200
  • Misdemeanor Under Age 18…………………… NCGS §15A-145
  • Gang Offense Under Age 18…………………… NCGS §15A-145.1
  • Controlled Substance Under Age 22 …………… NCGS §15A-145.2
  • Toxic Vapors Under Age 22……………............. NCGS §15A-145.3
  • Nonviolent Felony Under Age 18……….……… NCGS §15A-145.4
  • Nonviolent Offense…………………………...... NCGS §15A-145.5
  • Prostitution Offense………………………......... NCGS §15A-145.6
  • Charge Resulting in Dismissal or Not Guilty ….. NCGS §15A-146
  • Identity Theft………………………………….... NCGS §15A-147
  • DNA Records………………………………....... NCGS §15A-148
  • Pardon of Innocence……………………………. NCGS §15A-149
In addition, this summary provides the following information and resources:
  • Certificates of Relief……………………………. NCGS §15A-173
  • Indigent Fee Waiver
  • Steps to Submitting a Petition for Expunction
  • How to Read an ACIS Criminal Record Report
  • Petition for Expunction of Nonviolent Offense, Sample
  • Petition for Expunction of Dismissed Charges, Sample
  • Petitioner’s Affidavit, Worksheet
  • Affidavit of Good Character, Worksheet
  • Affidavit of Good Character
More information and source material. Questions?  Contact us and the attorneys at David R. Payne law firm would be happy to speak with you. Read more "Expunctions, how do they work? What is a PJC?"

Should you give breath sample? 3 of3

Part 3 of 3 DWIs are tough,  but you don’t have to face it alone.  Call us after hours at 828-393-3000 for a consultation. Driving Related DWI Itemized Costs and Suspensions.   Pretrial Limited Driving Privilege
  • $100.00 Paid 10 Days After Charge To: Clerk of Court
  • Purpose: If license is revoked for 30 days, the pretrial limited driving privilege allows for limited purposes for the final 20 days of the civil revocation.
30 Day Civil Restoration Fee
  • $100.00 Paid 30 Days After Charge to: Clerk of Court
  • Purpose: To Get License Back 30 Days After DWI Charge
Post-trial Limited Driving Privilege
  • $100.00 upon  Conviction or When Eligible to: Clerk of Court
  • Purpose: Allows driving for specific limited purposes during the period your license is revoked for the DWI conviction
Ignition Interlock System
  • Installation Cost: Approximately $75.00 Monthly Cost: Approximately $75.00 to: Installation Company
  • Purpose: Driving may only be allowed with an interlock system
License Restoration Fees
  • $50.00-$100.00 Upon Restoration of Driver’s License (Following Revocation for Refusal or DWI Conviction) to: NC DMV
  • Purpose: Restore Driver’s License
Court Fees Fine & DWI Fee
  • When you plead guilty or are found guilty of DWI Fine Allowed by Statute: Up to $10,000.00 Typical DWI Cost: $200.00 – $500.00
  • Payable to: Clerk of Court
Court Costs
  • When you plead guilty or are found guilty of DWI Cost: $190.00
  • Payable to: Clerk of Court
Jail Fee
  • When you plead guilty or are found guilty of DWI you must pay jail fees Cost: $40.00 Per Day in Jail
  • Payable to: Clerk of Court
Community Service Fee
  • When you plead guilty or are found guilty of DWI Cost: $250.00
  • Payable to: Clerk of Court
Lab Fees for Blood Cases
  • When you plead guilty or are found guilty of DWI Cost: $600.00
  • Payable to: Clerk of Court
Supervised Probation Fees
  • Schedule Determined by Probation Set-up Cost: $40.00
  • Monthly Fee: $40.00
  • Payable to: Clerk of Court
Alcohol Assessment and Treatment Assessment:
  •  At Assessment Cost: $100.00
  • Payable to: Agency Performing Assessment
Treatment:
  • Time of Payment: Determined by Agency
  • Typical Cost: $160.00 – $800.00
  • Payable to: Agency Conducting Treatment
  High Risk Insurance after you plead guilty or are found guilty of DWI is expensive.  Your insurance cost will increase by as much as 340% for example, if you pay $300 now, you will pay $1320 afterwards.  Collision, comprehensive coverage may be difficult to find, and it may cost more than outlined by the department of insurance.  DWI is a 12 point offense that results in your automatically losing your license for one year.  It is possible to get a limited privilege to drive after you plead guilty or are found guilty of DWI, but that requires a court order, and you must carry that order also known as a “paper license” with you when you drive.       Read more "Should you give breath sample? 3 of3"

Should you give a breath sample when you are stopped for DWI? Part 1 of 3

  Blow or No? You must decide for yourself.  But you don’t have to do it alone.  Call us after hours at 828-393-3000 for a consultation. The Blood Alcohol Content (BAC) is the most important evidence against you in a DWI case.  Drinking and driving is not illegal in North Carolina.  Driving while impaired is. “ Impaired” is defined two ways: .08 or higher within a relevant time after driving, or being “appreciably impaired”, which means impaired to the extent that is capable of being noticed or observed, to the extent that it impairs either your mental or physical faculties or both.  It is possible to be convicted for DWI even if your BAC is less than .08, if you are appreciably impaired, and it happens in Buncombe County. Police use two different breath tests – one is optional and one is mandatory.  alcosensor IIIThe optional one is a small handheld unit and the numerical results are not admissible in court to prove a DWI.  (The results ARE admissible to prove under-age consumption of alcohol.)  The mandatory testing unit is a large machine typically kept at the jail or police station called an intoximeter.  It is a flat metal box with a tube that you blow into.  Those results of that test are admissible in court, and that is the test that counts.  You have the right to refuse the mandatory test, but if you do, your driver’s license will be revoked a year, even if you are not convicted, and the fact that you refused will be admissible in your criminal trial.    Always be polite and cooperative, but understand that you have the legal right to refuse all roadside testing without having your license revoked.  Once you get to the intoximeter at the jail, you have to decide if you will refuse to mandatory testing at the cost of losing your license for one year. ecirii-breath-test     The police may also ask for a blood sample to test for drugs. Any amount of Schedule I drugs (Opiates, Heroin, LSD, Psilocybin, MDA, Mescaline, et. cetera) along with the officer’s observations may be sufficient to prove DWI.   They will also ask for a blood test for Alcohol or drugs by the SBI if you are hospitalized during the investigation. They will charge you $600 for lab fees if you are convicted.  You have the right to refuse that blood test, but if you do, your driver’s license will be revoked a year, even if you are not convicted.  Police may skip the State blood test and ask the hospital directly for your medical records.  HIPAA regulations allow law enforcement officers to request your medical records directly from your provider, even if you don't consent.   [embed]https://www.youtube.com/watch?v=pEgEUN8ddfA[/embed] Contact us. [contact-form subject='blog contact'][contact-field label='Name' type='name' required='1'/][contact-field label='Email' type='email' required='1'/][contact-field label='Comment' type='textarea' required='1'/][/contact-form] Read more "Should you give a breath sample when you are stopped for DWI? Part 1 of 3"