The case I was dealing with had a very simple fact pattern.  In the early morning hours the victim in the case heard a noise coming from the toolshed in his back yard.  He turned on the exterior lights in time to see two males attempting to make off with his grandson’s motorcycle.  They dropped the motorcycle and took off running.  When investigators arrived they found the motorcycle lying on the ground, and a set of bolt cutters on the ground nearby.  No suspects were found and the victim was unable to identify the would be cat burglars.  Investigators were able to lift 8 prints from the bolt cutters. Two of the 8 prints proved “clear” enough to compare and were considered a match to my client.  He was arrested and charged with the attempted theft.

Knowing that the fingerprints were the only thing that linked my client to the scene (in spite of the victim emphatically saying that my client’s build did not match the build of the men he saw fleeing), it became imperative to poke holes in the fingerprint evidence.

On November 22, 2005, the Science, State, Justice, Commerce, and Related Agencies Appropriations Act of 2006 became Federal law.  Under the terms of the statute, Congress authorized the National Academy of Sciences to conduct a study on forensic science.  The committee selected to conduct the study included members of the forensic science community, members of the legal community, and a diverse group of scientists.  The results were published in 2009 under the title “Strengthening Forensic Science in the United States:  A Path Forward”.

The committee conducted extensive studies in the field of latent fingerprint evidence and in particular the ACE-V method of examining and comparing fingerprints.  The study concluded by saying “’We have reviewed available scientific evidence of the validity of the ACE-V method and found none.’” Id. at 5-12 (emphasis added).  See the section on latent evidence here.  In particular the study concluded that “ACE-V does not guard against bias; is too broad to ensure repeatability and transparency; and does not guarantee that two analysts following it will obtain the same results.” 2009 NAS Report at 5-12.

The argument is an interesting one.  In essence what the committee concluded is that the ACE-V method of fingerprint analysis is subjective to the point that it can’t be relied upon in a legal context.  The ACE-V method doesn’t set forth particular sections or features of a fingerprint to analyze in every case because each analysis is different.  Using the ACE-V method, two analysts might reach two entirely different conclusions.  In fact, it’s not inconceivable for the same analyst to come up with two different conclusions on the same set of prints.

My case concluded before we could ever litigate the fingerprint issue.  I was unable to find any examples of trial courts excluding fingerprint evidence based on the 2009 NAS study.  I don’t know if a judge would exclude fingerprint evidence based on the study or not because of the reliable reputation that fingerprint evidence has enjoyed for so long.  However, if a judge were to honestly analyze the results of the the NAS study in light of our rules of evidence it would be difficult to fashion a valid reason to not exclude the evidence.

Contact Ludlum Law Firm today with any questions or for assistance in your Duplin County or Sampson County felony.  

_____________________________________________________________________

Re:  Updates to North Carolina DWI Law

Dear________:

At Ludlum Law Firm we are committed to providing continued service to our clients.  You are receiving this letter because we have represented you on a Driving While Impaired (DWI) charge in the past.  Beginning December, 2011, there will be significant changes to North Carolina’s DWI laws that we think you need to know about.  This letter serves to summarize and alert you about these upcoming changes.

The first major change to our DWI law is designed to protect young and handicapped passengers.  Pursuant to this change, any person convicted of DWI, who, at the time of the offense has a passenger in the car who is 1)Under the age of 18;  OR 2) Is mentally handicapped;  OR 3) Suffers from a physical condition that would prevent them from escaping a wrecked car on their own, will automatically be punished as a Level 1 DWI offender.  Level 1 DWI punishment is the second most serious of DWI punishments and carries a minimum of 30 days in jail and as much as 2 years in prison.  This enhanced punishment is based solely on the passenger in the vehicle, and applies regardless of whether this is a first DWI offense or any other mitigating factor.

The second major change is called “Aggravated Level 1 Punishment”.  Pursuant to this modification to current DWI law,  any DWI offender with more than two grossly aggravating factors will be punished as an “Aggravated Level 1 Offender” .  Grossly aggravating factors include: 1)A prior DWI conviction within 7 years of the date of the current offense; 2) The offender’s license was suspended at the time of this offense because of a prior alcohol related offense;  3)  The offender was involved in an accident that resulted in serious injury.  This new level of DWI punishment includes: 1)  A minimum of 12 months, and a maximum of 36 months in prison; 2)  A fine up to $10,000;  3)Four months of abstaining from alcohol use as monitored by a continuous alcohol monitoring system (an ankle bracelet that tests the wearers sweat for signs of alcohol.)

We truly hope that these changes never become an issue for you.  The State of North Carolina has made DWI offenders a top priority, and rightfully so.  It is our hope that by educating our clients about these new enhanced punishments we can do our part to prevent future tragedy.  If we can be of any assistance or answer any questions regarding these new laws please feel free to call or email us.

From our family to yours,

Happy Holidays

J. Garrett Ludlum

Hayes S. Ludlum

The whole Ludlum Law Firm Staff

Qualifying Charges:  The revocation applies to 16 and 17 year old provisional licensees charged with a criminal moving violation.  Some pertinent examples include:

• G.S. 20-140:  Reckless driving
• G.S. 20-141(j1):  Speeding more than 15 mph over limit or more than 80 mph
• G.S. 20-141(j3):  Speeding in a commercial motor vehicle carrying a load that is subject to the permitting requirements of G.S. 20-119 and (i) driving 15 mph or more over the posted speed, or (ii) driving 15 mph or more over the permit speed
• G.S. 20-141.3:  Operating a motor vehicle willfully in a prearranged speed competition, or operating a motor vehicle willfully in speed competition, or allowing one’s vehicle to be operated in a prearranged speed competition, or wagering on a prearranged speed competition.
• G.S. 20-141.6: Aggressive driving
• G.S. 20-157(a), (h), (i):  Failing to move over for law enforcement or emergency vehicle giving warning signal, or violating G.S. 20-157 and causing damage to property or injury, or violating G.S. 20-157 and causing serious injury or death.

Revocation Procedure: 

If law enforcement has reasonable belief that a 16 or 17 year old provisional driver has committed one of the offenses listed, and then charges that person with that offense, that person is subject to the 30 day license revocation.  The important thing to note here is that the license is revoked before any conviction is obtained.  Simply being charged is the triggering factor.  Next comes the part that may prove most frightening.  The driver must be taken, by the charging officer, before a judicial official who will determine whether the requirements for revocation are present and then order the actual revocation.  So in real life, here is how this will play out.  A 17 year old gets clocked in Sampson County speeding 81 mph in a 70 mph zone as he hurries to get home before curfew.  Under 20-13.3 the officer is to place the 17 year old in his police car and drive him to the magistrates office to appear before a judicial official.  Technically this is not an arrest, but a ride in a police car to the magistrates office would likely be as freighting as an arrest to a young person.

The Revocation Period:

Once the magistrate determines that the facts qualify the driver for revocation, the young driver loses his driving privilege for 30 days.  The driver actually keeps his physical plastic license, but he is prohibited from driving for 30 days.  BEWARE, getting caught driving during this 30 days could pose BIG problems.   There are no fees or fines assessed for this revocation, and no reinstatement fee is required after the 30 day revocation.  The driver is not entitled to any limited driving privilege or work license.  The driver is not assessed any insurance or license points for the revocation period.  Plain and simply, the driver is punished by being forced to endure a trip to the magistrates office, and then losing his driving privilege for a month.  Its obvious this law is not intended to hit young drivers (or their parents) in their pockets by increasing insurance rates or through fines.  This law seems designed to scare young drivers into line.  I hope it does.  Feel free to contact Ludlum Law Firm to discuss your Clinton, Kenansville, Warsaw or other Duplin County or Sampson County speeding ticket.  

The Castle Doctrine:

The most sweeping change to North Carolina’s gun laws is the adoption of the “Castle Doctrine”.  This is a broad term used to convey the notion that “a man’s home is his castle” and he should therefore feel safe within its walls and do what is necessary to protect his family within.  North Carolina’s “castle doctrine” grants broad powers to its citizens in defending themselves from intruders not only to their home, but also their workplace and motor vehicle.  The new law, which goes into effect December 1, 2011, can be seen in its entirety here.  I interpret the new law to say that the lawful occupant of a home, motor vehicle, or workplace is presumed to have an imminent fear of death or serious bodily harm, and can respond with the use of deadly force, if the person against whom the force used was in the process of unlawfully and forcefully entering (or had already entered) a home, motor vehicle or workplace or if that person had removed or was attempting to remove another person from one of those areas.  There are a few exceptions.  First, if the person against whom the defensive act was taken was a lawful occupant or resident of the property this  law does not allow the use of deadly force.  Second, if the person who uses defensive force is in the process of escape from the commission of a crime such force would be unlawful.  Third, if the person against whom the force is used is a law enforcement officer or bail bondsman who enters one of the protected premises in his official capacity and in the lawful performance of his duties, defensive force is not allowed.  The exceptions carved out are really “no brainers”.  This law is designed to allow a person to use deadly force in the protection of his home, vehicle and workplace when an intruder is threatening the sanctity of the castle by unlawfully entering.  The new law further states that if an intruder enters your home, motor vehicle or workplace you can presume he is doing so with the intent to commit an unlawful act involving force or violence. Finally, the law states that a person defending his home, motor vehicle or workplace as described above has no duty to attempt to retreat from the intruder prior to using deadly force.

New Exceptions to Firearm Prohibitions:

• New legislation allows a person with a concealed carry permit to have a firearm in a locked container in a vehicle while on certain state property including the State Capitol Building grounds.  In addition, concealed carriers can also have a concealed handgun on the grounds or waters of a park within the State Parks System.
• Lawmakers carved out an exception for certain weapons of mass destruction (military issued machine guns and other automatic weapons).  Under the new law people who can lawfully possess such weapons under federal law are exempt from the state law prohibition.
• New legislation makes a concealed carry permit issued by another state valid in North Carolina.  Under the previous law, such permits were only valid if the other state granted North Carolina permittees the same reciprocity.
• In the past, in order to sell, give away, transfer, purchase or receive a crossbow a person had to have a valid permit.  New legislation eliminates the requirement for a permit.
• New legislation allows District Attorneys (DAs), Assistant District Attorneys (ADAs) and their investigators who have concealed carry permits to carry concealed weapons except in the courtroom or when consuming alcohol.  DAs and ADAs are allowed to carry in many buildings and areas in which other permittees are prohibited from carrying.  In addition, off duty probation and parole officers are allowed to carry a concealed weapon so long as they are not consuming alcohol or an unlawful controlled substance and no such substance remains in their body.

Firearm Transaction Fraud:

New law makes it unlawful for a person to 1) solicit a licensed dealer of firearms or ammunition to transfer a firearm or ammunition in a manner that the person knows would be illegal or 2)Provide a licensed dealer of firearms or ammunition with information that he knows to be materially false with the intent to deceive the dealer about the legality of the transfer.  This offense is punished as a class F felony.

Modifications Made to Old Law:

• Technical language was added to the firearms on school property offense.  To be convicted under the new law the state must prove that the person “knowingly” possessed a firearm on school property.  Its tough to imagine a case where a person could claim he did not know he had a firearm.
• The possession of firearm by a minor  law was tweaked to require a showing that the minor “willfully and intentionally” possessed the handgun.  In addition, the punishment was bumped up from a class 2 to a class 1 misdemeanor.
• In 2010 state lawmakers passed a law allowing persons convicted of certain nonviolent felonies to apply for restoration of their gun rights.  The law as originally written was unclear as to exactly who qualified for such restoration.  S.L. 2011-2(HB 18) clarifies who is eligible.
• Prior law required that Sheriffs issue or deny a concealed carry permit within 90 days.  As amended the law reduces that time down to 45 days.

Potential Client:  “I was charged with speeding 70 in a 55 driving through Duplin County.  Can your firm help me with this?”

Me:  “Sure, I can have this reduced to an Improper Equipment, thus preventing license and insurance points”

Potential Client:  “Well, Attorney X said he can get me a PJC for $100 cheaper!”

The PJC is a creature unique to North Carolina, and has risen to mythical “cure all” status among lay people who have received a speeding ticket in Duplin County or Sampson County.  I know fellow lawyers who have used PJC in the name of their boat, beach house, and on vanity plates for their vehicle.  Needless to say, the PJC is a valuable tool in our bag of tricks.  However, there are other, even sometimes better, options.

What is a PJC?

PJC is short for Prayer for Judgment Continued.  It works like this.  A person enters a plea of guilty to a speeding charge and upon requesting a PJC, the court “continues judgment” in the matter.  A judgment is a final order in a legal matter.  By continuing judgment, the court is saying that a final judgment will not be entered on the particular matter.  The immediate effect of this is you won’t receive insurance or license points on your speeding case if no judgment is entered.  The problem is, when it comes to traffic offenses, the court is really the least of your worries.  NCDMV is generally the end all, be all when it comes to these situations.  So, how does DMV handle your PJC?  It depends.

If you have a spotless record, DMV will not assess insurance or license points if the court continues judgment in your case (i.e. enters a PJC).  In this situation its helpful to think of the PJC as a 3 year probation period.  So long as you are not convicted of a moving violation during this 3 year period DMV will not assess points.  However, conviction of a moving violation (with a few exceptions) during this period will “undo” the PJC and you will generally be assessed insurance points for the original charge that was PJCd and for the new moving violation.

How Often Can I Use a PJC?

When considering a PJC, and all traffic issues for that matter, it is important to recognize there are two “points” systems that effect drivers.  The first is points assessed by the Department of Motor Vehicles (DMV).  North Carolina law assigns certain point values to various traffic offenses.  If a person exceeds a point total over a certain period of time, DMV will revoke that person’s license.  The second points system is insurance points.  Again, North Carolina law provides a list of offenses and assigns certain insurance points for commission of those offenses.  In some situations DMV points and insurance points are the same, but not always.  (Points For Traffic Offenses in North Carolina) Motor vehicle insurance rates are based in part on the number of insurance points on a policy.  For each moving violation, a person is assessed points from two separate sources.  So, the answer to the question, “How often can I use a pjc”, is, there are two answers.  As far as DMV is concerned, each licensee is entitled to two PJCs in a five year period.  For insurance purposes, each POLICY is entitled to one PJC in a three year period.  It is important to recognize here that for insurance purposes, an entire policy is reviewed.  This is especially noteworthy for families with young drivers.

How Will The PJC Affect My Out Of State License?

I don’t know.  As I stated earlier, the PJC is unique to North Carolina.  Most likely North Carolina will report to your home state the fact that you received a PJC on a traffic offense.  To know for sure what affect the PJC will have, a person would need to contact the DMV of his home state as well as his insurance provider.

Is A PJC The Best Option For My Situation?

Its important to recognize the PJC for what it is, just one of a few tools at the lawyers disposal.  If I had to rank “Best Possible Outcome” for a speeding charge, it would look like this.

1.  Dismissal:  I cant remember the last speeding charge I got dismissed.  With the media of today in constant search of a story to over dramatize, District Attorneys simply dont dismiss speeding tickets.

2.  Improper Equipment (IE):  The IE is a tool that can be utilized in some jurisdictions.  With court dockets growing to unmanagable sizes, District Attorneys  have looked for a “win-win” manner of quickly disposing of cases.  The IE is that solution.  It works like this.  The DA, upon receipt of the proper paperwork from your attorney, will reduce the speeding charge to an equipment violation.  Equipment violations are non moving violations so they don’t carry insurance or DMV points.  In exchange you agree to pay a fine and the cost of court.  So, the state gets its money and moves the case quickly through the system, and you get your case resolved without incurring points.  Each District Attorney sets his/her own parameters for what cases qualify for a reduction to IE.  Some DAs dont allow the IE.  There is no statutory limitation on the number of IEs a person can use, but most DAs place their own limitations on how often it can be utilized.

3.  PJC (see explanation above).

4.  Speed Reduction:  In some cases, for people not prone to receive speeding tickets, simply reducing the speed and paying the fine will prevent points.  I rarely resolve cases in this manner because it can result in trouble down the road.

So, you can see the PJC has its place.

Conclusion:

I borrowed this narative from a colleague of mine, Mario White, and it makes a valid point.  On one side of the street there is a barber shop with a sign advertising $5 haircuts.  On the other side of the street is a barber shop with a sign advertising $20 haircuts.  And below that sign is the phrase “I specialize in fixing $5 haircuts”.

Resolving speeding cases is more of an art than a science.  Each case is different and each driving record is unique.  An attorney needs to have a good understanding of the impact of certain convictions and should be able to read a driving record and assess what is best for each particular case.  These skills are not taught in lawschool as its really only possible to “master” them through years of practice.  This is not stated to promote us and what we do, but rather to highlight the complexity of dealing with these issues so that you, the client, can understand the importance of hiring an experienced attorney so as not to dig yourself into a hole.

Cutting hair is not complicated, but go to an inexperienced barber and you’ll likely spend a great deal more undoing his mess.  The same is true with your traffic attorney.  Don’t just hire the guy/gal who can get “the cheapest PJC”.  As this article shows, there are many other options.

Feel free to contact Ludlum Law Firm to discuss your Clinton, Kenansville, Warsaw or other Duplin County or Sampson County speeding ticket.  

LOCK UP YOUR SONS:

Allow me to begin part two of this series with a caveat/disclaimer.  THIS ARTICLE DISCUSSES THE CRIME OF STATUTORY RAPE.  This is a very difficult subject to discuss in any context.  This article makes the argument that in some cases, North Carolina law is harsh on people convicted of this crime, making this discussion much more difficult.  Please understand I am in no way excusing this crime, attempting to victimize defendants charged with this crime, or diminishing the devastating effect it can have on the young people who are the real victims.  A person found by a jury of his peers to have committed this crime, and not within the exceptions I lay out below, should be subjected to the harshest punishment the law allows (in most cases).  The purpose of this article is to point out a very startling flaw in our law and hopefully prevent  young people from destroying their lives.

So caveats aside, lets begin with a real life example.

Joe (obviously not his real name) is an 18 year old high school senior.  Joe comes from a hard working lower middle class family from rural North Carolina.  It takes everything for Joe’s family to make ends meet and they can only afford one car.  Joe’s mom works the night shift and has the family car at night while his dad uses the car during the day to get to his job at a local factory.  Joe has no way of going out to see friends, so when he is not at school he usually sits at home.  He is not much into sports but would still be considered by most to be “athletic”.  His teachers would say that he is a good student, with mostly As, Bs and Cs on his report cards, and what he lacks in intellect, he more than makes up for with his pleasant, peaceful personality.  Like most kids of today, Joe spends a great deal of his time socializing through social media.  His parents bought a computer a few years ago and, since he is stuck at home most of the time anyway, he spends hours online chatting with friends on Facebook.  Joe would like to go to college but he knows his family can’t afford it.  Therefore, his goal is to join the Navy after high school and earn a college degree in a computer field through the military G.I. bill.

One night on Facebook Joe is chatting with a girl from his school.  She is a sophomore whom he has known for some time.  She has a friend from another school at her house and tells Joe about the friend.  The friend’s name is Sonia.  Sonia logs in to Facebook and asks Joe to be her Facebook “friend”.  Joe accepts the request and he and Sonia quickly hit it off.  After a few months of general discussions on a daily basis, it becomes apparent to Joe that his relationship with Sonia is more than the normal Facebook friendship.  The two talk to each other on Facebook with every free moment.  At some point hormones get the better of Joe and Sonia and the discussions begin to take a more sexual tone.  Most Facebook discussion between the two end with some form of sexual invitation from either Joe or Sonia.  In total there are over two hundred printed pages of disussions between the two that at times discuss very “adult” topics.

Through Facebook Joe and Sonia make several attempts to meet with each other at various places, but are never successful.  After several failed attempts to meet, the two finally end up at the same public event and for the first time after months of online discussions, meet face to face.   Within minutes they find a secluded location and begin to engage in sexual intercourse.  Soon thereafter an adult, who has been searching for Sonia, find the two in the act.

Lets take a moment here elaborate on a few things.  First, Sonia is approximately 5’7″ and to be as delicate as possible, is easily a size DD chest.  At no time during their discussions did the subject of Sonia’s age ever come up between Joe and Sonia.  After I read their posts, I had no reason to believe Sonia wasn’t sexually knowledgable if not also sexually active.  Sonia would later tell investigators that Joe never forced her to do anything and the sexual acts she performed were of her own volition.

So,  HERE COMES THE BOMBSHELL.  As it turns out, Sonia, at the time they were caught in the act, was 12 years old.

Joe was arrested on the spot and taken in front of a magistrate where he was charged with the felony of statutory rape and given a $100,000 bond.

In North Carolina, in order to convict a person of the level of statutory rape for which Joe was charged, a prosecutor must prove beyond a reasonable doubt that the defendant:

1)Had sexual intercourse

2)With a child under the age of 13 years

3)Who is at least four years younger than the defendant, and the defendant

4)Was at least 12 years old.

Notice what is missing from those elements.  The state is not required to prove that the defendant knew the victim was under 13.  The burden is met by showing the victim was under 13 regardless of what the defendant knew or thought.  And this is where the problem arises with the law in this context.  In our hypo I mentioned that Joe and Sonia never discussed her age.  Joe was introduced to Sonia through a mutual friend who was a sophomore at his school and, after seeing her pictures and talking to her on Facebook he had no reason to question her age or ever imagine she was 12 years old.  Sonia’s own mother would later plead the court for mercy on behalf of Joe because she considered her daughter to be the aggressor and because her daughter did not look to be 12.  Suppose Joe had asked her how old she was and she told him she was 16.  Suppose further she even showed him a fake ID to back up her claim.  Surely, in that case Joe could not be found guilty of this crime.  WRONG!!!!!  Under the letter of the law, if the state proves that Sonia was under 13 and they had intercourse, regardless of how convincing her fake ID may have been, Joe is guilty.

So, what sort of time does a person like Joe face if convicted of this crime?  Even a good kid like Joe, with no prior convictions of any sort, MUST be sentenced to a minimum of 192 months in prison if convicted of this charge.  FYI that is 16 years in prison.

The theme of this two part blog is “Two North Carolina Laws That Can Ruin Your Child’s Life”.  Admittedly, Joe and Sonia’s situation is a bit unique.  It is the exception that a 12 year old would be as physically and sexually mature as Sonia.  However, research strongly suggests that young girls are becoming sexually mature and active at a much earlier age.  There are two other types of Statutory Rape that are not nearly as unique and can equally “Ruin Your Child’s Life.”

1)  Statutory Rape of a Person Who is 13, 14, or 15 Years Old and the Defendant is More Than Six Years Older,

2)Statutory Rape of a Person Who is 13, 14, or 15 Years Old and the Defendant is More Than Four Years Older, But Less Than Six.

With each of these two offenses, like in Joe’s case, the State is not required to prove that the defendant knew the victim’s age.  Again, therein lies the problem.  Either of these two laws could be violated by a high school student with a school mate.  Number one above could arise where a high school senior, old for his class and therefore 19, has intercourse with a high school freshman who is young for her class.  The punishment for such an act, the same as for Joe, a minimum of 16 years.

Number two above is the situation I see most.  It’s easy to imagine all the possible scenarios where this charge could arise.  It is entirely conceivable that a person could be charged with this crime for having sexual intercourse with someone only two grades behind him in school, regardless of how old she looked, how old she claimed to be, how old others stated she was, or any other logical excuse.  The good news for this offender is that he will not face a minimum of 16 years in prison.  He will only spend 58 months, or just short of 5 years, in prison even with a spotless record.

The title of this article, “Lock Up Your Sons” is a bit facetious.  But in a sense, considering our statutory rape laws don’t require the state to prove that a defendant knew a victim was underage, it may really be the only way to prevent your son from having a fate similar to that of Joe.

I set out to write about these laws not with the disenchanted notion that I could change them, but rather in hopes of educating other parents of the absurdity of these laws in hopes they will in turn educate their teenage children.  In exploring these laws it became apparent to me they are far too important to share a single article.  Therefore, I chose to divide the discussion into two separate blogs with a common theme.  Tune in soon for part two.

LOCK UP YOUR PILLS

As a teenager, a good friend of mine (I’ll not mention his name because he has convinced his own family he was perfect in those days) and I looked forward to each Saturday night. I would invite this friend to stay the night at my house and my parents would generally go out for dinner with another couple.  My friend and I would wait a sufficient bit of time to insure the adults wouldn’t return for some forgotten item and we would then break out a bottle of liquor from the dark depths of my parent’s liquor cabinet.  We would be careful to take only a small amount from various bottles so as not to draw attention to our misdeeds.  Though what we did was wrong, in a way it was innocent.  We didn’t drink enough to come close to intoxication.  We were 15 years old so neither could legally drive. By the time the adults returned from dinner our little buzzes had generally worn off.

Teenagers today live in a world far different from the one in which I came of age.  I feel like an old timer writing such things about today’s “whippersnappers”, but it’s true.  In the last 15 years the Internet has moved from infancy to a mainstay in most households, bringing with it social media in all its forms, online gaming and chat, and music and video libraries at the touch of a button.  As a teenager, my cell phone was akin to the old WWII walkie talkies used to call in Kraut positions seen in black and white movies , whereas now smart-phones do everything but fold our laundry.  In addition we have been attacked by terrorists and entered two wars (not counting small skirmishes).  But the frightening trend among today’s teens is their susceptibility to bypass the parents’ liquor cabinet in favor of the medicine cabinet.

Such medications as Oxycontin, Oxycodone, Percocet, Methadone, Vicodin and other various painkillers and muscle relaxers are replacing the heisted mixed drink with frightening regularity among today’s teens.  Pills are easy to access, easy to conceal and its nearly impossible to detect when one or two are removed from a pill bottle.  In addition, even “religious” households that frown on alcohol use can have a readily accessible supply of pills. Add to this the fact that they generally provide a strong, sustained high without the concern of the smell of alcohol on the breath.  This has only become possible because far more adults have a stockpile of these meds in their medicine cabinet for teens to access.  My personal theory is that more “Baby Boomers” are reaching the age where ailments are becoming unbearable, Doctors are becoming more willing to write scripts for these ailments, and parents and grandparents are simply ignorant as to the dangers of leaving pills unlocked and easily accessible to teens.

The problem with these meds is multifaceted.  There is always the possibility of an allergic reaction or even more likely an overdose.  Most “painkillers” contain doses of very powerful narcotics that must be taken in small doses.  All these concerns are legit but I’ll save that analysis for the scientists.  It’s the legal ramifications of this trend that I want to focus on.

Place yourself in the position of a teen to consider how the scenario may play itself out.  You’re a 17 year old high school junior in the closing weeks of school before summer break.  Your friend’s parents are leaving town for the week, and there is a big end of school party planned for this Saturday night at his house.  Friday morning, while in home room, you overhear two kids talking.  It seems that last weekend, one of the kids took some pills from the his mother’s medicine cabinet.  The two classmates took the pills and were “MESSED UP”.  Curious, you ask them what kind of medicine it was they took.  They reply “Oxycontin”, to which you respond, “Oh, my dad has a whole bottle of those left over from when he had his back surgery.”   One of the students inquires whether you are planning to come to the party tomorrow night.  You respond that you are coming.  They say “grab some of your dad’s pills and we can take them.  It’ll be fun.”  The next night you walk into your parent’s bathroom and remove 6 pills from a 60 count bottle.  They will never be missed, and should result in a good time tonight.  On the way to the party you get pulled for speeding.  The officer is a bit zealous and asks you to step out of the car.  A pat down reveals the 6 pills in your pocket.  The officer checks his pill dictionary and determines that the 6 pills you have, based on the size, are enough to qualify you to be charged with Trafficking in Heroine.  That’s right, TRAFFICKING IN HEROINE.

If that is not frightening enough, consider the statutory punishment for this charge.  In North Carolina, trafficking charges carry their own special punishment outside the normal “sentencing grid” for which most felonies are punished.  As it pertains to heroine (a great number of pain medications have doses of heroine, opiates or a derivative in them), trafficking sentences are as follows:

Greater than 4, but less than 14  grams………….. 70-84 months

Greater than 14, but less than 28 grams………….90-117 months

Greater than 28 grams, …………………………………..225-279 months

(see N.C. Gen. Stat. 90-95 h4)

In North Carolina, all felony charges, with the exception of trafficking and first degree murder, take into consideration the offender’s prior record.  The month totals listed above apply to an offender even if he has a spotless criminal record.  The most frightening aspect of our trafficking laws is that the sentences listed above are MANDATORY ACTIVE sentences.  By law, if a person is convicted of trafficking in heroine, a judge MUST sentence him to an active sentence in one of the categories listed.  The only way a judge can legally stray from this obligation is if it is shown that the Defendant provided “substantial assistance” to law enforcement;  that is, he participated in a large number of undercover buys of drugs that lead to the arrest and conviction of other people.

Still not concerned?  What if I told you that, with some of the more powerful pain pills, as few as five pills can equal more than 4 grams heroine or opiates?  So, going back to our example above;  What happens to you as a 17 year old on the way to an end of school party if you are found in possession of 6 Oxycontin’s and charged with trafficking in heroine?  You have two options.  You can work with law enforcement and participate in undercover drug buys in hopes the officer will vouch that you have provided “substantial assistance”, allowing a judge to at least consider sentencing you to something other than an active prison sentence, or, you can go to prison for anywhere between 70 and 279 months, depending on how strong your pills are.  So what happens if you don’t know any drug dealers to set up?  After all, your drug dealer in our hypothetical is your father and the doctor who prescribed his meds.  You better bring your toothbrush to court.

Though the intent of this law is to target serious drug dealers, the practical application of it can have devastating consequences and can in fact, ruin your child’s life.  Sadly enough, I have seen it happen.

Helpful links on this subject

• DEA Drug Resources Page
• Help With Prescription Drug Abuse
• A Real Life Example
• Visit Our Site For Help With Felony Drug Charges

SPEEDING TICKET DOs:

• DO consult an attorney, even if its not my firm, before just paying off your speeding ticket. If you’ve gotten a ticket you know that the market for traffic attorneys is flooded, to say the least. Most offer free consultations, so you have nothing to lose in making a few phone calls. When dealing with speeding charges there are pitfalls seemingly around every corner that could result in insurance points or license revocation. With new online payment of tickets it is now easier than ever to plead guilty to a charge that could cost you in the long run.
• DO remember your court date. With our fast paced lives its usually all we can do to stay on top of the necessities. Having to remember a court date a month away only further complicates things. But it is important that you either appear in court or hire an attorney to appear for you. Failure to do so can turn an ordinary speeding ticket into a big mess that will eventually result in revocation of driving privileges by DMV.  PLEASE NOTE; AS OF JULY 1, 2011, STRICT LIMITATIONS HAVE BEEN PLACED ON A JUDGE’S ABILITY TO STRIKE LATE FEES.  IF YOU MISS YOUR COURT DATE YOU WILL BE REQUIRED TO PAY A $200 LATE FEE TO THE COURT. 
• DO be knowledgeable about your charge (pardon any grammatical issues with that sentence). Take a second to look at your ticket and determine what county you were in when charged, the speed you were charged with, the speed zone you were in, and even the officer’s name. This information is all important in resolving your ticket.
• DO show patience if you decide to go to court and handle your case by yourself. The court docket in Duplin County has been known to reach upwards of 1,000 cases in a single day. There is generally only one judge and one prosecutor to hear all these cases. Dedicate the entire day to resolving your case and treat court personnel with respect or they will likely put your case on for the end of the day.

SPEEDING TICKET DONTs:

• DONT assume that simply paying the ticket off is harmless and causes the charge to go away. It rarely does.
• DONT attempt to have a trial to beat your speeding ticket (with a few exceptions). Not guilty verdicts are EXTREMELY rare in speeding cases. In addition, the court dockets are at an all time high and most judges would see a trial on a speeding case as a tremendous waste of the court’s time and will likely punish you for it. Don’t just take my word for it, speak to court staff and others who see court everyday and they will tell you that speeding trials almost never end well for defendants.
• DONT come to court to handle your ticket without cash to pay your fine and court costs. If the court grants you “time to pay”, additional penalties will be added to your case. In addition, some judges are becoming increasingly impatient with people who are not prepared to handle their tickets and are resorting to “other” methods of dealing with the situation.
• DONT come to court and think that the charging officer is going to “help you out” or “put in a good word for you”, even if they said they are. Make no mistake, you should always treat an officer with dignity and respect. However, the officer is often not in court to “put in a good word for you” when your case is handled. Most officers are on telephone standby on their court date and will come to court if called. Furthermore, with the size of most officer’s caseloads it is unlikely they will remember you simply because you were courteous. Its the people who are disrespectful that they often remember, and that is never good.
• DONT Call the Clerk of Court’s office and ask to continue your upcoming speeding case. The District Attorney and the Judge are the only people who can continue your case and neither will do it outside of court. The Clerk’s office is in charge of keeping all the files and keeping track of court dates. They do not have authority to continue your case.

SPEEDING TICKET MYTHS:

• MYTH: ” I can beat my case because the officer was not wearing his hat when he wrote me the ticket.” I have heard this one several times. Plain and simple the officer can write you a ticket in a beanie and it wont get your ticket thrown out. District Courts are not that technical.
• MYTH: “My case should get thrown out because the officer misspelled my name on the ticket” or “because he put my address down wrong” or ” because he put the time down wrong”. In most instances the court will allow the ticket to be amended and misspellings and things of that nature can be corrected at trial. If the mistake on the ticket brings into question whether it was actually you that was stopped, that is a different matter. In those cases the court will rely on the officer’s memory of the events and his in-court testimony that, despite a scrivener’s error in filling out the ticket, he recognizes you as the person he charged.
• MYTH: “My ticket should get thrown out because the officer did not read me my rights.” We’ve all seen the “Law and Order” shows where the bad guy gets thrown on the hood of the cop car and the scene cuts to commercial break to the fading sound of the detective telling the perp “You have the right to remain silent, anything you say can and will be used against you….”. These are called Miranda rights and they play a very important role in the judicial system. However, rarely do they play any role whatsoever in a simple speeding case. An officer’s failure to read you your Miranda rights does not void the ticket, it simply allows you to ask the court to exclude any “custodial statements” you gave from the court proceedings. “Custodial statements” are almost never an issue in a speeding case.
• MYTH: “My case should get thrown out because all the cars around me were going as fast or faster than I was and the officer did not stop any of them. ”  Remember that the officer that stopped and charged you is just one person.  The officer cant stop all the cars around you all at once.  Courts usually are not interested in what the cars around you were doing.
• MYTH: “The officer charged me for going 83 mph in a 70 mph zone.  But I know I was not speeding because I had my cruise control set on 79 mph.”    The problem with this logic is that, though most officers will not stop you for going 79 mph in a 70, 79 in a 70 is still speeding.  So if you go to court and have a trial on this issue, when you present this defense you have in essence admitted to the court that you are at least guilty of speeding 79 mph in a 70.  There are much easier and cheaper options.
• MYTH: The officer charged me with 67 mph in a 55 zone.  Afterwards, I had my car calibrated and have proof that my speedometer is off.”  Though this is a logical defense to speeding, our District Attorney does not accept this as a valid excuse for a reduction.  Therefore, the alternative is to have a trial.  The court will not let you simply show paperwork evidencing that the speedometer is off.  Our rules of evidence require that you put an “expert witness” (i.e. the mechanic who calibrated the car) on the witness stand and that he give testimony of his opinion concerning your car and its speedometer calibration.  Even then, there is no guarantee that the court will accept his opinion.  “Expert witnesses” are not free, and in the end you will have spent a lot of money attempting to defend your case with no guarantee that you won’t be found guilty anyway.  There are cheaper options.

SPEEDING TICKET MATH:

The math is simple.  As an example, a conviction of 80 mph in a 70 zone will result in 4 insurance points.  4 insurance points will result in an 80% insurance premium increase for the next three years.  Assume you pay $1,000.00 annually for insurance.

$1000 x.80 = $800 increase, for each of the next three years. =$2400

Even a less dramatic example is costly.  Say you are convicted of an offense that results in just one insurance point.  This will cause a 25% increase in your insurance for each of the next three years.  Again, assume you pay $1000 annually for insurance.

$1000 x .25 = $250 increase, for each of the next three years =$750

The math is simple.

Visit Ludlum Law Firm for help with your North Carolina speeding ticket.

See insurance and license implications of North Carolina speeding tickets.

DWI Punishment Levels

Whether  convicted after a bench trial, a jury trial, or after entering a plea of guilty without a trial, the sentencing process is the same.  DWI punishment in North Carolina is broken into 5 levels.  Level 1 carries the most serious punishment while level 5 has the least.

Level 5 Punishment:

• 1 year suspension of driving privilege
• Monetary fine to be determined by the judge, not to exceed $200
• Court Costs
• Minimum of 24 hours, maximum 60 days, in jail.
• Must obtain alcohol assessment and any recommended treatment. (most judges require this but even if they don’t it must be done before DMV will issue a new license)

Level 4 Punishment:

• 1 year suspension of driving privilege
• Monetary fine to be determined by the judge and not to exceed $500
• Court Costs
• Minimum 48 hours, maximum 120 days, in jail
• Must obtain alcohol assessment and any recommended treatment. (most judges require this but even if they don’t it must be done before DMV will issue a new license)

Level 3 Punishment:

• 1 year suspension of driving privilege
• Monetary fine to be determined by the judge, not to exceed $1,000.
• Court Costs
• Minimum 72 hours, maximum 6 months, in jail
• Must obtain alcohol assessment and any recommended treatment. (most judges require this but even if they don’t it must be done before DMV will issue a new license)

Level 2 Punishment:

• 1 year suspension of driving privilege
• Monetary fine to be determined by the judge, not to exceed $2,000.
• Court Costs
• Minimum 7 Days, maximum 1 year, in jail
• Must obtain alcohol assessment and any recommended treatment. (most judges require this but even if they don’t it must be done before DMV will issue a new license)

Level 1 Punishment:

• 1 year suspension of driving privilege
• Monetary fine to be determined by the judge, not to exceed $4,000.
• Court Costs
• Minimum 30 days, maximum 2 years, in jail
• Must obtain alcohol assessment and any recommended treatment. (most judges require this but even if they don’t it must be done before DMV will issue a new license)

DETERMINING SENTENCING LEVEL

So how does the court determine in which of the 5 levels to sentence a person?  The court looks at various factors that can be found on form AOC CR-311. There are three categories of factors the court looks at.

Mitigating Factors: These are good things about the defendant or his case.  Mitigating factors are:

• Slight impairment (.09 or less)
• Driving at the time of the DWI was otherwise safe and lawful
• Defendant has an otherwise clean driving record
• Impairment was by  lawfully prescribed drugs within the prescribed dosage
• Voluntary submission to an alcohol assessment

Aggravating Factors: These are bad things about the defendant or his case.  Aggravating factors are:

• Gross impairment (.16 or more)
• Especially aggressive or dangerous driving
• Negligent driving leading to a reportable accident
• Conviction of a prior DWI more than 7 years ago
• Driver’s License revoked at time of the DWI for a non alcohol related offense.
• Two or more prior 3 point convictions within the preceding 5 years before the offense
• Conviction of speeding at least 30 miles over the legal speed limit
• Passing a stopped school bus

Grossly Aggravating Factors: These are really bad things about the defendant or his case.  Grossly aggravating factors are:

• Prior DWI conviction within the past 7 years
• Driver’s license was revoked at the time of the DWI for a prior alcohol related offense
• Serious injury to another caused by the Defendant’s impaired driving
• Having a child less than 16 years old in the car at the time of the offense

The court will first look to determine if any grossly aggravating factors are present.  If there is one grossly aggravating factor, the court will sentence the defendant as a level 2.  If there  is more than one grossly aggravating factor, the court will sentence the defendant as a level 1.  The presence of a grossly aggravating factor technically negates the presence of any aggravating or mitigating factors.  However, there is a degree of discretion within each level of sentencing.   Therefore, even if there are grossly aggravating factors the presence of aggravating or mitigating factors can play a role in determining how severe the punishment will be within levels 1 and 2.

If there are no grossly aggravating factors, the court will next determine the existence of aggravating and mitigating factors.  If aggravating factors outweigh mitigating factors the court will sentence the defendant as a level 3.  If the aggravating and mitigating counterbalance, the court will find a level 4.  If mitigating factors outweigh aggravating factors the court will sentence the defendant as a level 5.

CONCLUSION:

Being charged with DWI is the beginning of arduous and at times confusing process.  For the most part DWI sentencing takes into account a person’s actions in the past leading up to the time of the stop.  That being so, there is little that can be done after the stop has taken place to improve the situation and attempt to reduce punishment.  However, there is one mitigating factor within a person’s control AFTER the time of the stop, and that is subjecting to an alcohol assessment.  This mitigating factor can make the difference in the court finding level 5 punishment or one of the more serious lower levels.  In addition, it shows the sentencing court that the defendant is taking responsibility for his actions by attempting to address any alcohol addiction issues.  Further, DMV will not issue a limited driving privilege or a full driver’s license until a person receives an alcohol assessment.  So bottom line, GET AN ALCOHOL ASSESSMENT.

DWI law is constantly evolving.  In fact as this blog is being written lawmakers are enacting legislation that will make our DWI laws even tougher.  Be on the lookout for future articles about this new legislation and how it will affect DWI sentencing.