The New York Times recently published a story entitled “Driving Under the Influence, of Marijuana.” The story suggested that driving under the influence of marijuana (pot) is much less risky than driving while impaired by alcohol.  The report also indicated that it is difficult to detect impairment by pot with the standardized field sobriety tests used in DWI by alcohol cases, and it is difficult to confirm impairment with laboratory tests.  The article discusses several studies making these findings and noted the conclusion of some experts that public resources would be better spent combating alcohol-impaired driving, including perhaps lowering the per se threshold for alcohol concentrations to 0.05,  than in establishing a per se limit for blood-THC content or devising roadside tests to detect for marijuana impairment.

Marijuana impairment is harder to detect because THC – the ingredient that gives marijuana its psychoactive effect –  can take as long as four hours for the THC metabolites to appear in the body after smoking pot, and chemical test can still yield a positive result for pot metabolites for weeks after a person last smoked pot.  A publication by the National Highway Transportation Administration (NHTSA) regarding marijuana states that it positive tests can occur long after the window of intoxication and impairment has passed because concentrations of THC in a person’s blood depend in part upon the pattern of marijuana use, it is difficult to establish a relationship between a specified blood concentration and performance impairing effects.  The article in the Times stated that people who smoked marijuana on a frequent basis may have a blood-THC content that exceeds the limits set in Washington and Colorado for THC concentration more than 24 hours after they last smoked pot.

Marilyn A. Huestis, a senior investigator at the National Institute on Drug Abuse said that “our goal is to put out the science and have it used for evidence-based drug policy . . . but I think it’s a mishmash.”  The article cited a 2007 study which found that 12 percent of the drivers randomly stopped on American highways on Friday and Saturday nights had been drinking. (In return for taking part in the study, intoxicated drivers were told they would not be arrested, just taken home.)  It also reported that six percent of the drivers tested positive for marijuana — a number that is likely to go up with increased availability, and added that some experts and officials are concerned that the campaign against drunken driving has not gotten through to marijuana smokers.

The Times article stated that Glenn Davis, highway safety manager at the Department of Transportation in Colorado said that they have done surveys which indicated that a lot of people think D.W.I. laws don’t apply to marijuana.  He added that “there is always somebody who says, ‘I drive better while high.’”  Other evidence suggests that is not the case, but  also suggests that we may not have as much to fear from stoned driving as from drunken driving. Some researchers say that stoned driving, is simply less dangerous than drunk driving because marijuana and alcohol have different physiology. Drivers impaired by alcohol tend to overestimate their skills and drive faster.  Drivers impaired by marijuana do the opposite.  A professor interviewed by the author of the Times article noted the old joke about “‘Creech and Chong being arrested for doing 20 on the freeway.’” The article also said that studies estimate that drivers who are stoned are twice as likely to crash compared with a driver who has a blood-alcohol concentration of 0.08 percent is almost 20 times more likely to be in a fatal accident than a sober driver.

Driving while appreciably impaired by any impairing substance is illegal in North Carolina.  But for the reasons mentioned in the Times article, driving while impaired by pot could be a difficult case for the a prosecutor to prove beyond a reasonable doubt.  The times article discussed the debate about how best to prove that drivers under the influence of THC are too intoxicated to drive. Blood-alcohol content (BAC) can be tested on the side of the road with a hand held alcosensor, and a multitude of studies link increased levels of blood alcohol to decreased driving skills. But not so for pot.  THC levels can only be measured by blood or urine samples.  Urine tests look for metabolites of THC rather than the pot itself, and can return positive results many days or weeks after someone smoked pot.  Some states have laws that prohibit any detectable level of THC metabolite in urine or blood, and criminalize both.  The article said that only six states have set legal limits for THC concentration in the blood, and that in Colorado and Washington state the limit is five nanograms per milliliter of blood, or five parts per billion.

A restraining order or a protective order is a court order, that is a form or an injunction, that requires a party (a person) to do, or to refrain from doing, certain things.  A party that refuses to comply with an order may face criminal or civil penalties, and may be ordered to pay damages or be subject to other sanctions such as a term of imprisonment. If a person violates the terms of a court order, they could be in serious criminal trouble and possibly face jail time.

The legal definition of domestic violence in NC is when someone with whom you have had a personal relationship attempts or intentionally causes bodily injury to one or ones minor child.  The complaint form provides the plaintiff allege (and would need to prove to prevail) that the Defendant:  attempted to cause or has intentionally caused bodily injury to the child(ren) living with me or in my custody; has placed my child(ren) in fear of imminent serious bodily injury or in fear of continued harassment that rises to such a level as to inflict substantial emotional distress.  The term “personal relationship” means a relationship wherein the parties involved:  (1) Are current or former spouses; (2) Are persons of opposite sex who live together or have lived together; (3) Are related as parents and children, including others acting in loco parentis to a minor child, or as grandparents and grandchildren. For purposes of this subdivision, an aggrieved party may not obtain an order of protection against a child or grandchild under the age of 16; (4) Have a child in common; (5) Are current or former household members; (6) Are persons of the opposite sex who are in a dating relationship or have been in a dating relationship. For purposes of this subdivision, a dating relationship is one wherein the parties are romantically involved over time and on a continuous basis during the course of the relationship. A casual acquaintance or ordinary fraternization between persons in a business or social context is not a dating relationship.

There are two different types of Domestic Violence Protective Orders (DVPO’s) that one can receive. The first is the ex parte/ temporary protective order and this is typically given to an alleged victim, or plaintiff, the day one files for a restraining order if the judge believes that the issue is serious and the party needs it immediately. In order to receive a full protective order there must be a trial with the plaintiff and the alleged offender, or defendant, present and the order can’t go into effect until the defendant has a copy of the order.

A DVPO can order the defendant not to assault, threaten, abuse, follow or harass the plaintiff or the plaintiff’s children at work, school, or in person either face to face, or over the telephone.  A DVPO can allow the plaintiff to remain in the home where the defendant and plaintiff lived together, and force the defendant to move out no matter who is the home owner or who is on the lease.  If someone wants to file for an order of protection, they can either do so in the county where they live, or where the defendant lives temporary or permanently.

Another type of Civil No-Contact Order in NC is provided under NCGS 50C. Civil no contact orders are an order of protection given to you from a judge. Anyone who alleges they are a victim of sexual assault or sexual abuse, or a victim of stalking, can apply for an order.  The legal definition of stalking is when someone repeatedly follows or harasses one with the intent to put one in reasonable fear for you or your family’s safety, or attempting to cause emotional distress.  In order to prevail, a plaintiff must prove that the defendant has followed on more than one occasion or otherwise tormented, terrorized, or terrified the plaintiff with the intent to place the plaintiff in reasonable fear for the plaintiff’s safety or the safety of the plaintiff’s immediate family or close personal associates or with the intent to cause, and which did cause, the plaintiff to suffer substantial emotional distress by placing the plaintiff in fear of death, bodily injury, or continued torment or terror.

As with DVPO’s, there are two types of civil no contact orders:  an ex parte / temporary order, and a “permanent” order which typically only lasts one year, but can be extended. The temporary order, if granted, is typically given to one the day one files their complaint and can last up to ten days until the court can hold a trial with the alleged stalker and victim present. After the judge has time to review the case they have to find as fact that the stalking or sexual conduct occurred, and if so they should rule in the plaintiff’s favor and then grant the one year final order. The permanent (for one year) order is given after the court has a full hearing on the trial with both sides giving their evidence. A permanent order can last up to a year and may receive extension if it is brought to the court before the expiration date.

A civil no contact order can order the defendant to refrain from assaulting, molesting, or otherwise interfering with the plaintiff in any manner. It can order the respondent to refrain from contacting the plaintiff via email, telephone, or any electronic way. As with a DVPO, if one wants to file for a civil no contact order one can either visit the district county court where one resides, the district county court where the respondent resides, or one can also visit the district county court where the action took place.

If you have been served with a notice of hearing for a restraining order, or if you are considering pursuing a restraining order against someone who has committed acts which would justify a court granting a restraining order against someone who has attacked or assaulted you, call Collins Law Firm for a confidential consultation at:  910-793-9000

By Dan Werner, Intern

On August 12, 2013, United States Attorney General Eric Holder announced to the American Bar Association’s House of Delegates in San Francisco, an initiative to curb mandatory minimum drug sentences that the nation is “coldly efficient in jailing criminals,” but it “cannot prosecute or incarcerate” into becoming a safer country.  “Too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason,” Holder said .  The arguments about legalization of drugs in the US include health and social problems, potential tax revenue, and public safety concerns.  However, this speech by our Attorney General focused on alleviating an overburdened prison system housing non-violent people convicted and sentenced to very long prison terms for peaceful drug crimes.  Regarding the debate over legalization, the nation has moved from the question of “if” to the more tangible question of “how,” said Beau Kilmer, co-director of the RAND Drug Policy Research Center and co-author of “Marijuana Legalization: What Everyone Needs to Know.”

A Pew Research Center poll in 1969 indicated that 12% of Americans supported the legalization of marijuana, and the same study estimated that at that time, four in 100 Americans had recently smoked marijuana. In 2013, a Gallup poll found that the number of Americans supporting legalization had risen to almost 50%.  In recent years, 20 states plus the District of Columbia have legalized medical marijuana.  Colorado and Washington State have legalized marijuana for recreational use.  Oregon is likely to do so in the near future. According to the National Organization for the Reform of Marijuana Laws (NORMAL), sixteen States have decriminalized possession of small quantities of marijuana beginning in the early 1970’s.

Recently the National Institute on Drug Abuse (NIDA) has begun to comment on increasing sentiment of Americans for the legalization or at the least liberalization of marijuana laws.  In response to a campaign by the Marijuana Policy Project, which stated that marijuana is “less toxic” than alcohol, NIDA said that:  “Claiming that marijuana is less toxic than alcohol cannot be substantiated since each possess their own unique set of risks and consequences for a given individual.” PolitiFact, which fact-checks claims made by politicians and special interest groups agreed that the claim that marijuana is less toxic than alcohol was “mostly true.”  They quoted studies from the Centers for Disease Control’s (CDC) National Center for Health Statistics which revealed that more than 41,000 deaths were tied to alcohol in 2010, while zero were reportedly linked to marijuana. In addition, the CDC lists “1.2 million emergency room visits and 2.7 million physician office visits due to excessive drinking.”  None were reported due to excessive marijuana use.

Mark Kleiman is a UCLA public policy professor who has been asked by government officials to help fashion the legal framework for Washington’s recreational marijuana business.  He said about Arkansas’ recent medical marijuana vote which failed by a close 51% to 49% vote:  “When 49% of voters in Arkansas are voting for legal pot, we aren’t in Kansas anymore.”

However, President Barack Obama’s drug czar, Gil Kerlikowske, was quoted in 2010 as saying that the push towards legalizing marijuana was a “nonstarter.”  The Office of National Drug Control Policy indicates that his statement holds true today.  But at the same time, the Office of National Drug Control Policy emphasizes that the administration’s 2013 drug policy takes a new tack with the realization that America can’t arrest its way out of its longtime drug epidemic.  The Administration’s new policy, announced in April, favors “prevention over incarceration, science over dogma and diversion for nonviolent offenders.” And they continue to say that arguments for marijuana legalization “run counter to public health and safety concerns.”

Meanwhile the federal government’s stand is moving slowly, the states are expected to continue leading the movement towards legalization. Alaska will likely put a complete legalization ballot before voters next year, and Maine, Rhode Island, California and Oregon may give voters the option in 2016.  “I think a lot’s going to depend on how legalization plays out in Colorado and Washington — also, how the federal government responds,” Kilmer said. “We still haven’t heard how they’re going to address commercial production facilities in those states.”  The next White House administration could take a harsher stance against the state’s movement towards legalization.  One thing is clear – the nation is a lot closer to the repeal of prohibition of marijuana than it has been in many decades.

This wave of changes in our country does not diminish the fact that possession of marijuana is still illegal in North Carolina – a misdemeanor for less than an once and a half, and a felony for quantities greater than an once and a half.  If you are charged with the illegal possession of any drug, or other contraband in or around the Wilmington NC area, call Collins Law Firm at 910-793-9000910-793-9000 for a confidential consultation about how we can help.

The Second Amendment to The United States Constitution was ratified on December 15, 1791, as a part of the United States Bill of Rights.  The Second Amendment protects an individual’s right to possess and carry firearms and states “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

Two landmark decisions were made by The United States Supreme Court, establishing this interpretation of the Second Amendment. In the first case, District of Columbia v. Heller (2008), the Court ruled that the Second Amendment protects an individual’s right to possess a firearm, unconnected to service in a militia and to use that arm for traditionally lawful purposes, such as self-defense within the home. In the second case, McDonald v. Chicago (2010), the Court ruled that the Second Amendment limits state and local governments to the same extent that it limits the federal government.

In light of recent tragedies involving gun violence, gun control has moved to the forefront of debate. Some of the North Carolina firearms laws are outlined below and both the North Carolina and Federal laws as they are currently written are outlined in detail by the North Carolina Department of Justice

Requirements for the purchase of firearms in North Carolina:

-When a person desires to purchase a handgun from a federally- licensed dealer, the person needs to present a valid permit to purchase a handgun or valid North Carolina issued concealed carry permit.

-Under North Carolina law, it is unlawful for any person, firm, or corporation to sell, give away, transfer, purchase or receive at any place in the state, any pistol, unless the purchaser or receiver has first obtained a license or permit to receive such pistol by the Sheriff of the county where the purchaser or receiver resides, or the purchaser or receiver possesses a valid North Carolina concealed carry permit.§ 14-402(a)

Who Is Not Eligible for a Permit?

-Under North Carolina General Statute § 14-404, you are not eligible if one of more of the following apply:

(1)        One who is under an indictment or information for or has been convicted in any state, or in any court of the United States, of a felony (other than an offense pertaining to antitrust violations, unfair trade practices, or restraints of trade). However, a person who has been convicted of a felony in a court of any state or in a court of the United States and (i) who is later pardoned, or (ii) whose firearms rights have been restored pursuant to G.S. 14-415.4, may obtain a permit, if the purchase or receipt of a pistol permitted in this Article does not violate a condition of the pardon or restoration of firearms rights.
(2)        One who is a fugitive from justice.
(3)        One who is an unlawful user of or addicted to marijuana or any depressant, stimulant, or narcotic drug (as defined in 21 U.S.C. § 802).
(4)        One who has been adjudicated mentally incompetent or has been committed to any mental institution.
(5)        One who is an alien illegally or unlawfully in the United States.
(6)        One who has been discharged from the Armed Forces of the United States under dishonorable conditions.
(7)        One who, having been a citizen of the United States, has renounced his or her citizenship.
(8)        One who is subject to a court order that:
a.         Was issued after a hearing of which the person received actual notice, and at which the person had an opportunity to participate;
b.         Restrains the person from harassing, stalking, or threatening an intimate partner of the person or child of the intimate partner of the person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and
c.         Includes a finding that the person represents a credible threat to the physical safety of the intimate partner or child; or by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against the intimate partner or child that would reasonably be expected to cause bodily injury.

By Lauren Seidel, Paralegal

Effective January 1, 2012, Article 2 of Chapter 20 of the North Carolina General Statutes was amended by adding a new section introducing an immediate 30 day civil license revocation for provisional licensees.  Pursuant to General Statute 20-13.3(a)(4) a provisional licensee is defined as a person under the age of 18 who has a limited learner’s permit, a limited provisional license, or a full provisional license issued pursuant to G.S. 20-11.

Pursuant to this new law, a license revocation can be triggered by common offenses such as Speeding more than 15 mph over the limit or more than 80 mph in a 70 mph zone, Reckless Driving, Speeding to Elude Arrest, Aggressive Driving, Failing to move over for law enforcement or emergency vehicles giving a warning signal.  A complete list of criminal moving violations subjecting a provisional licensee’s permit or license to revocation can be found on page two of the affidavit and revocation report newly issued by the North Carolina Administrative Office of the Courts to be used for law enforcement officers (new AOC-CVR-12).

Pursuant to G.S. 20-13.3(d) the provisional licensee must be given  a copy of the revocation order (new AOC-CVR-13) by the he judicial official which must state the date on which the provisional licensee’s permit or license becomes valid again.  The provisional licensee keeps their license or permit, however, they are not authorized to drive during the revocation period.

Pursuant to G.S. 20-13.3(f), a  provisional licensee who is subject to a civil license revocation under this new law is not eligible for a limited driving privilege.

At the conclusion of the revocation period the person’s permit or license becomes valid by operation of law—payment of a fee is not required.

Pursuant to G.S. 20-13.3(h) no driver’s license or insurance surcharge may be assessed for a provisional licensee revocation pursuant to the this new law.

A provisional licensee who drives a motor vehicle on a highway during the period of revocation under G.S. 20-13.3 commits the offense of driving while license revoked under G.S. 20-28.

Collins Law Firm has been representing people charged with traffic citations, speeding tickets, and other criminal charges in Southeast North Carolina for over ten years and we will be happy to discuss your situation with you. Feel free to call for a consultation regarding any legal matters for which you need legal representation at (910) 793-9000.

By Jana Collins, Office Manager

North Carolina General Statute Section § 15A-304 provides that: A judicial official may issue a warrant for arrest only when he is supplied with sufficient information, supported by oath or affirmation, to make an independent judgment that there is probable cause to believe that a crime has been committed and that the person to be arrested committed it. The information must be shown by one or more of the following: Affidavit;  Oral testimony under oath or affirmation before the issuing official, etc.

Just because someone swears out a warrant against a person does not mean the person is guilty. In each of the United States, everyone is presumed innocent until proven guilty in a court of law. Criminal charges, even if dismissed in court, can result in criminal records which will affect the accused for the rest of their life. Even if the criminal records are expunged, it is possible that records may still exist of the charges.

Recently, the Wilmington Star News (the main newspaper in New Hanover County, NC) ran a story on North Carolina’s laws on self initiated warrants.  The story commented on several high profile cases including the recent warrant that Belville Mayor Jack Batson took out on Belville Commissioner Joe Breault for communicating threats and cyberstalking. Commissioner Breault had allegedly written an email to Mayer Batson in which he said that if he got out of hand again, “you may likely find your words rammed back down your throat and, along with your new teeth, pulled out of your rectum!”  The article said Batson indicated that he felt compelled to swear out a warrant against Breault since the threats were escalating, but Breault the agreed that the system with self initiated warrants in North Carolina is abused. He said specifically that he has examples of instances where young people threaten to have their lovers arrested if they misbehave.

In 2003, a Kure Beach resident swore out a warrant against actor Ben Affleck for communicating threats.  The warrant was subsequently dismissed.  The District Attorney at the time said that the case was “a very good example of why people shouldn’t be able to take out a warrant without any kind of police investigation.”

The Star News article discussed the processes in other states including Georgia where individuals requesting a warrant must go before a magistrate who holds a hearing where both the accuser and accused are given a chance to present evidence before the judicial officer makes a decision. What followed was the standard three-step process that unfolds thousands of times each year in magistrates’ offices across North Carolina: Batson filled out a one-page form, listing his complaint. He put his hand on a Bible, swearing his claims were true. And then, the magistrate issued a warrant for the commissioner’s arrest.

In the vast majority of other states, there are other professionals involved in the criminal justice system investigating criminal complaints before a warrant is issued.  The Star news quoted Jeffrey Welty, Assistant Professor at the UNC School of Government who has said:  It’s a distinctive feature of North Carolina law. . . . I haven’t surveyed all 50 states, but if we’re not unique, we’re pretty close.

Every year, court costs increase, but this year is different.  With the new republican controlled legislature and the budget crisis, the government is looking to increase revenue and it seems they have looked to court costs.  While in the past, there have been nominal increase – usually once a year, this year there have been two already, and another one set to hit later this year.

The court costs for an improper equipment violation (a non moving violation to which many traffic offenses may be reduced to avoid both DMV points and insurance points) increased effective October 1, 2010 from $161 to $166.  On July 1, 2011 court costs went up for an improper equipment (IE) from $166 to $195. And effective August 1, 2011 court costs for an IE went up from $195 to $263.

Not only are the costs increasing, but they are becoming more complex!  The amount of the court costs in a criminal case now depends on the class or type of crime alleged.  The costs are different for infractions and misdemeanors, and different for chapter 20 violations (traffic violations) and other crimes.  Check out the official documents giving notice of the changes and the charts provided to explain the costs and how to calculate them:  http://www.nccourts.org/Courts/Trial/Costs/Default.asp

In addition to the changes and increases, the lack of advance notice have been especially frustrating. For example, look at the at the 2011 Court Costs Memo – effective July 1, 2011 in the list of documents at the AOC link above. The date of the memo is: June 28, 2011, and it refers to:  “Legislative Increases in Court Costs and Fees, July 2011; EFFECTIVE July 1, 2011, unless otherwise noted.”

These changes have not only been costly to our clients but they have also been very confusing and cumbersome to everyone involved!  The staff in the courts have been expressing frustration, understandably so, including some of the clerks and the District Attorneys’ staff.  Even some of the judges have been making comments about the changes and uncertainty associated with the changes and the implementation thereof.

Anyone can be charged with a crime, and many people are wrongfully accused. Just because someone has been charged does not mean they are guilty. Criminal charges, even wrongful criminal charges, result in criminal records which can affect people for their entire life. Therefore, it is very important that people who are charged take the matter seriously and take appropriate steps to avoid or mitigate the negative consequences of criminal charges. In some cases, it is possible to have criminal records expunged which means the official public records are removed and destroyed by a process called expungement or expunction.

In North Carolina, if a person is convicted of a crime which occurred after they were 18 years of age or older, the conviction cannot be expunged. However, in some cases, it may be possible to reopen a case through a motion for appropriate relief, and thereafter have the charge dismissed. If successful, it may then be expunged. Convictions for misdemeanors which occurred before the defendant was 18 years old may be expunged when certain conditions are met.

Criminal charges for which the defendant was not convicted, i.e. the charges were dismissed or the defendant was found not guilty, may be expunged. However, a defendant may only receive an expungement for a set of charges which all occurred within a 12 month period or which were all disposed in the same term of court. A defendant may only receive one expungement in North Carolina, with a few exceptions.

Criminal charges based on another person using their identity (i.e. identity theft), which are dismissed may be expunged, and there appears to be no limit on the number of charges which can be expunged under this provision. In addition, charges for which one has received a pardon of innocence may be expunged, and there appears to be no limit on the number of charges which can be expunged under this provision. There are also statutes which provide for expungement of some drug charges which are dismissed pursuant to statutory deferred prosecution provisions.

If you have been charged with a crime and want to discuss the possibility of an expungement or expunction, call Collins Law Firm at 910-793-9000.

If you are summoned for jury duty, it is important that you comply with the requirements of the summons. Report to the bailiff of the proper court on the date and at the hour stated in your summons. In New Hanover County, there is a phone number listed on the summons to call to find out if you will be needed or not. If you are needed, there is a jury assembly room managed by the clerk’s office where jurors are to report, and the Jury Coordinator will give you further instructions. However, each county in North Carolina may have different procedures for reporting for jury duty.

To be qualified to serve in North Carolina, a juror: (1) must be a citizen of the United States and of the state of North Carolina, (2) must be a resident of the county in which called to serve as a juror, (3) must be at least 18 years of age, (4) must be physically and mentally competent to serve, (5) must be able to hear and understand the English language, (6) must not have been convicted of or pled guilty to a felony unless citizenship has been restored according to law and (7) must not have served as a juror during the preceding two years.

Many people would rather not have to serve as a juror, but it is an important duty we have as United States Citizens. Qualified persons age 72 or older may elect not to serve; otherwise, a person may be excused from jury duty on a particular occasion only after requesting to be excused because of special circumstances that may apply. No excuse is automatic and a judge will decide each request on its own merits and may defer jury service until a later date. If you have questions about your jury service, contact the clerk of court as soon as possible. In New Hanover County, we have a clerk in charge of the jury pool referred to the “Jury Clerk.” In some cases, it may be possible to defer one’s jury duty in advance. The summons should explain the procedure if it is possible in the county in which you are summoned to serve.

If you are called to serve on jury duty, there will likely be a lot of time spent just waiting. So you may want to bring a book to read, or something on which to quietly work while waiting.