CRIMINAL DEFENSE

Being charged with a crime is a very serious matter.  But knowing your options can help avoid or mitigate some of the most serious consequences of a criminal conviction.

Most importantly, every criminal defendant has a right to pled not guilty.  Upon a plea of not guilty, a trial will be conducted.  In District Court, a trial is held by a bench judge, who is the finder of law and fact.  In Superior Court, the judge finds the law and the jury finds the facts.  In either case, you must be found guilty beyond a reasonable doubt.  If you are found Guilty, a sentencing hearing will be held.  If you are found not guilty, you finish with no criminal conviction.

During the trial process, and leading up to your trial, you have many important rights.  For instance, here are a few rights guaranteed by the United States Constitution:

• Right to Remain Silent (5th Amendment, United States Constitution)
• Right Against Unreasonable Searches and Seizures (4th Amendment, United States Constitution)
• Right Against Excessive Bail (8th Amendment, United States Constitution)
• Right to a Public Trial (6th Amendment, United States Constitution)
• Right to a Jury Trial (6th Amendment, United States Constitution)
• Right to a Speedy Trial (6th Amendment, United States Constitution)
• Right to a Lawyer (Gideon v. Wainwright, 372 US 335 (1963))
• Right to Confront Witnesses (6th Amendment, United States Constitution)
• Right Against Double Jeopardy (5th Amendment, United States Constitution)

Additionally, if you and your lawyer decide that a trial will most likely lead to a conviction or a worse sentence, you may consider plea negotiations with the State.  Based on numerous factors, including but not limited to, the facts of your case, the victims involved, legal requirements and your record, plea negotiations could result in a dismissal of some or all of your charges, a reduction of your charges or an agreed upon more lenient sentencing.  

Some examples of negotiation tools are as follows:

• Traditional plea negotiations, which may lead to a reduction or dismissal of charges and sentencing.
• Informal  "Deferred Prosecution", which includes, but not limited to, taking rehabilitation classes such as Drug and Alcohol Education, Defensive Driving School, Cognitive Behavioral Intervention, New Options of Violent Offenders, for a possible reduction or dismissal of charges and a more lenient sentence.
• N.C.G.S. 15A-1341(a1)-(a6) - Deferred Prosecution which leads to a dismissal of criminal charges.
• N.C.G.S. 90-96 - Conditional Discharge which leads to a dismissal of of drug-related charges.

Impaired Driving charges are treated much like criminal charges in North Carolina.  While you have the right to trial and all the rights related to trial, N.C.G.S. 20-138.4, effectively prohibits plea negotiations in implied consent offenses, including Impaired Driving.

As a result, you must work with your lawyer to develop a trial defense and make efforts to mitigate your sentence, if convicted.

In preparing for an Impaired Driving defense, you and your lawyer must first determine: can the State prove the elements of Impaired Driving beyond a reasonable doubt?  The elements of Impaired Driving are generally stated as follows: the person commits the offense of Impaired Driving if he or she:

• Drives
• A vehicle
• Upon a street, highway or public vehicular area
• While either:
  1. Being impaired by some impairing substance
  2. After having consumed sufficient alcohol that he has, at any relevant time after the driving, an alcohol concentration of 0.08 or more.
  3. With any amount of a Schedule I controlled substance, as listed in Gaston County.S. 90‑89, or its metabolites in his blood or urine.

Independently of whether the State can prove the elements of Impaired Driving, you and your lawyer can review any pretrial motions to suppress or dismiss incriminating evidence.  In short, pretrial motions focus on , but not limited to, the following:

• Was the stop of your vehicle illegal?
• Was your arrest for Impaired Driving illegal?
• Is the breath, blood or urine analysis admissible?
• Was your detention in jail illegal?

Pretrial motions to suppress or dismiss an Impaired Driving charge must be filed pretrial.  If the motion is presented during trial, a Judge could consider it waived or untimely. 

If ultimately you are convicted, the judge must hold a sentencing hearing pursuant to N.C.G.S. 20-179.  During this sentencing hearing, a Judge will consider the mitigating, aggravating and grossly aggravating factors to determine your level of punishment, Level 5 (lowest) through Level A1 (highest).  

While the State must prove the aggravating and grossly aggravating factors beyond a reasonable doubt, you must prove mitigating factors by a preponderance of the evidence.  The statutory mitigating factors are as follows:

• Slight impairment of the defendant's faculties resulting solely from alcohol, and an alcohol concentration that did not exceed 0.09 at any relevant time after the driving.
• Slight impairment of the defendant's faculties, resulting solely from alcohol, with no chemical analysis having been available to the defendant.
• Driving at the time of the offense that was safe and lawful except for the impairment of the defendant's faculties. 
• A safe driving record, with the defendant's having no conviction for any motor vehicle offense for which at least four points are assigned under G.S. 20‑16 or for which the person's license is subject to revocation within five years of the date of the offense for which the defendant is being sentenced.
• Impairment of the defendant's faculties caused primarily by a lawfully prescribed drug for an existing medical condition, and the amount of the drug taken was within the prescribed dosage.
• The defendant's voluntary submission to a mental health facility for assessment after being charged with the impaired driving offense for which the defendant is being sentenced, and, if recommended by the facility, voluntary participation in the recommended treatment.
• Completion of a substance abuse assessment, compliance with its recommendations, and simultaneously maintaining 60 days of continuous abstinence from alcohol consumption, as proven by a continuous alcohol monitoring system. The continuous alcohol monitoring system shall be of a type approved by the Division of Community Supervision and Reentry of the Department of Adult Correction.
• Any other factor that mitigates the seriousness of the offense.

Some of the most common Impaired Driving sentencing terms include, but not limited to, the following:

• Active or suspended jail term
• Supervised or unsupervised probation
• Court costs, fines and fees
• Community Service
• Assessment and Treatment
• Driver license suspension
• Ignition Interlock device as a condition of driver license reinstatement
• Entry of a conviction on your criminal and driving record

After reviewing all the facts and law involved with your case, your lawyer can advise you on your right to trial and how to mitigate conviction consequences, including but not limited to, determining if there are alternatives to jail or a limited driving privilege.

By paying a ticket online, you are admitting guilt.  As a result, you will be convicted and treated the same as if you went to court and pled guilty and convicted in front of a Judge.  A record of this conviction will be reported to your DMV and criminal record.  In some cases, you will be assessed DMV points,  insurance points, monetary punishment and a possible revocation of your driving privilege.

Do not pay an out of state or in state ticket without consulting with an attorney.

Insurance Points are assessed against your insurance policy for certain traffic convictions and at-fault accidents.  These points, determined by the Safe Driver Incentive Plan, can surcharge and increase the costs of your insurance for years.  Importantly,  even if your insurance company is prohibited from assessing surcharge points, it can still consider raising your basic premium based on various factors, including a criminal or traffic conviction.

• Click here for the Safe Driver Insurance Plan 

DMV Points are assessed against your DMV record for certain traffic convictions.  While these points do not generally cause a financial penalty, your driver license may be revoked if you receive 12 points within three years.

• Click here for the DMV Schedule of Point Values

Prayer for Judgment Continued, commonly referred to as "PJC" is not treated as a conviction for DMV purposes.  But, unfortunately, a PJC still counts as a criminal conviction on your criminal record and for sentencing points.

Depending on the facts of your case, a PJC can help you avoid insurance points, DMV points and other punishments. such as a driver license suspension.  

However, there are several limitations to a PJC.  For instance, a PJC in not allowed for:

• CDL holders
• Operators of a Commercial Motor Vehicle
• Speeding in Excess of 25 miles per hour over the speed limit
• Passing a Stopped School Bus
• A third PJC in a 5-year period
• Specifically for insurance purposes, a second PJC in a household within a 3-year period

Under N.C.G.S. 20-123.2, if your speedometer is not in proper working order, you are responsible of an infraction. This is referred to an offense of "Improper Equipment".  Interestingly, this violation is a moving violation but does not carrying any insurance or DMV points. 

Important: an "Improper Equipment" will disqualify you from a DMV driver license restoration hearing.

Under certain circumstances, an Assistant District Attorney could reduce your ticket (even tickets not related to speeding) to Improper Equipment without proof of its malfunction.  However, by law, speeding in excess of 25 miles per hour over the speed limit cannot be reduced to Improper Equipment.