What is a Motion to Compel Discovery?

On 03.10.10, By Damon Chetson

What is “discovery”? Discovery is the process in either criminal or civil procedure of providing information to the other side. In criminal law, discovery is usually – although not always – provided by the State to the Defendant.

Discovery is all that information collected by the state and its agencies which the Defendant is entitled to have in order so that the Defendant can prepare his defense for trial.

North Carolina has an “open file” discovery statute, which requires the state to provide all information in the District Attorney’s files, as well as any investigative agencies – public or private – who participated in the investigation of the case.

Open file discovery only exists in Superior Court for Felony cases. It does not apply to felony cases still in District Court. And it does not apply to misdemeanor cases appealed to Superior Court.

Upon indictment – most felony cases are indicted by a grand jury in North Carolina – a defendant must first request that the District Attorney voluntarily comply with the State’s open file discovery statute at 15A-902.

If the State does not fully comply within 7 days, the Defendant or his attorney may file a motion requesting that a judge order the District Attorney to comply.

In reality, most discovery is not received within this time frame. That’s because many cases are more complex, requiring more time to assemble the discovery and give it to the Defense.

The District Attorney also has an obligation to seek out discovery in the possession of police agencies, DSS, or private agencies employed by the state to conduct certain kinds of testing or investigation.

In addition to the statute, the Defendant has further discovery options under both State and Federal case law. On the Federal level, the major cases are Brady, Ritche, Kyles and so forth.

If you're in need of a tough, caring Raleigh, Cary or Apex criminal lawyer, give Damon Chetson a call (919) 352-9411 anytime. Damon represents individuals charged throughout the Research Triangle - Wake, Durham, Johnston, Lee, Harnett, Orange, and Chatham counties. DWI Raleigh lawyer Damon Chetson is available day or night, weekdays or weekends. Call him anytime - weekdays, weekends, evenings or holidays.
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Damon Chetson

Damon Chetson is a criminal lawyer practicing criminal defense law in the Research Triangle (Raleigh, Durham, Cary, Apex, and surrounding communities) in North Carolina. He provides aggressive criminal defense for clients charged with serious felonies, misdemeanors, and traffic (DUI, drunk driving, DWI) offenses. He can be reached by calling (919) 352-9411 anytime weekdays, evenings, weekends or Holidays or by email at damon@chetson.com.

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What is a Motion to Continue

On 03.09.10, By Damon Chetson

A motion to continue is a request by a party – in a criminal case, either the State represented in Raleigh by the Wake County District Attorney or the defense, usually represented by a criminal defense lawyer – for a judge to set a new court date in the matter.

Usually, but not always, a motion to continue is accompanied by a reason. For instance, the State may say, “Your honor, the State requests a continuance so that it can subpoena our witness.” Or the defendant may request a continuance so that he may find and hire an attorney.

Whether a the Court grants a continuance depends on several factors. Normally, the earlier in the case, the more likely a judge will grant a continuance and set a new court date. If the matter has been continued several times, the judge may be reluctant to continue it yet again.

Usually, if the judge is reluctant to grant a continuance, but decides to do so, he will mark it “last” for whichever side requested the continuance, or for both parties. That means that on the next court setting, both sides must be prepared to go to trial or resolve the matter in some fashion, usually either by dismissing the case (if the state is not prepared) or working out a plea deal (if the defendant has no better alternative).

Strategic uses of continuances can be effective as part of an overall defense strategy. Talk to your criminal defense attorney about this issue.

Raleigh criminal lawyer Damon Chetson helps individuals charged with crimes - misdemeanors, felonies, and DWI and traffic charges - in Raleigh, Cary, Apex and other communities in Wake County and the Research Triangle of North Carolina. DWI Raleigh lawyer Damon Chetson is available day or night, weekdays or weekends. Call him at (919) 352-9411 day or night.
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Damon Chetson

Damon Chetson is a criminal lawyer practicing criminal defense law in the Research Triangle (Raleigh, Durham, Cary, Apex, and surrounding communities) in North Carolina. He provides aggressive criminal defense for clients charged with serious felonies, misdemeanors, and traffic (DUI, drunk driving, DWI) offenses. He can be reached by calling (919) 352-9411 anytime weekdays, evenings, weekends or Holidays or by email at damon@chetson.com.

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North Carolina Criminal Lawyer: What is an Infraction?

On 03.08.10, By Damon Chetson

An infraction is a non-criminal offense, always very minor in nature. If convicted of an infraction, you can’t be sentenced to jail – a fine of less than $100 (plus court costs) is the maximum punishment allowable for an infraction.

An infraction doesn’t count as a criminal record. Because an infraction is so minor, many people represent themselves on infractions. However, sometimes it makes sense to hire a lawyer if you don’t want to appear in court, and you just want to get the fine paid and done with.

Here’s the statute:

14-3.1. Infraction defined; sanctions.
(a) An infraction is a noncriminal violation of law not punishable by
imprisonment. Unless otherwise provided by law, the sanction for a person found responsible for an infraction is a penalty of not more than one hundred dollars ($100.00).

The proceeds of penalties for infractions are payable to the county in which the infraction occurred for the use of the public schools.

Raleigh criminal lawyer Damon Chetson helps individuals charged with crimes - misdemeanors, felonies, and DWI and traffic charges - in Raleigh, Cary, Apex and other communities in Wake County and the Research Triangle of North Carolina. DWI Raleigh lawyer Damon Chetson is available day or night, weekdays or weekends. Call him at (919) 352-9411 day or night.
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About the author

Damon Chetson

Damon Chetson is a criminal lawyer practicing criminal defense law in the Research Triangle (Raleigh, Durham, Cary, Apex, and surrounding communities) in North Carolina. He provides aggressive criminal defense for clients charged with serious felonies, misdemeanors, and traffic (DUI, drunk driving, DWI) offenses. He can be reached by calling (919) 352-9411 anytime weekdays, evenings, weekends or Holidays or by email at damon@chetson.com.

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North Carolina Criminal Lawyer: First Degree Rape

On 03.07.10, By Damon Chetson

First Degree Rape is punishable as a B1 felony. In 2009, North Carolina passed a mandatory minimum of 25 years for this crime.

First Degree Rape depends on the use of force or threat of force, or on the age difference between the victim and the defendant.

Note that just because there wasn’t full penetration, doesn’t mean that that rape can’t be proved. A rape merely requires proof of penetration, “however slight.” Penetration doesn’t have to occur with the penis. A first degree sex offense is committed if someone uses fingers, other implements, and so on.

Here are the statutes for first degree rape and first degree sex offense.

§ 14-27.2. First-degree rape.
(a) A person is guilty of rape in the first degree if the person engages in vaginal intercourse:
(1) With a victim who is a child under the age of 13 years and the defendant is at least 12 years old and is at least four years older than the victim; or
(2) With another person by force and against the will of the other person,
and:
a. Employs or displays a dangerous or deadly weapon or an article which the other person reasonably believes to be a dangerous or deadly weapon; or
b. Inflicts serious personal injury upon the victim or another person;
or
c. The person commits the offense aided and abetted by one or more other persons.
(b) Any person who commits an offense defined in this section is guilty of a Class B1 felony.
(c) Upon conviction, a person convicted under this section has no rights to custody of or rights of inheritance from any child born as a result of the commission of the rape, nor shall the person have any rights related to the child under Chapter 48 or Subchapter 1 of Chapter 7B of the General Statutes.

§ 14-27.4. First-degree sexual offense.
(a) A person is guilty of a sexual offense in the first degree if the person engages in a sexual act:
(1) With a victim who is a child under the age of 13 years and the defendant is at least 12 years old and is at least four years older than the victim; or
(2) With another person by force and against the will of the other person, and:
a. Employs or displays a dangerous or deadly weapon or an article which the other person reasonably believes to be a dangerous or deadly weapon; or
b. Inflicts serious personal injury upon the victim or another person;
or
c. The person commits the offense aided and abetted by one or
more other persons.
(b) Any person who commits an offense defined in this section is guilty of a Class B1 felony.

Cary criminal lawyer Damon Chetson helps people accused of serious felonies, misdemeanors, drug charges, DWI and traffic offenses in Raleigh, Apex, and Cary, NC. DWI Raleigh lawyer Damon Chetson is available day or night, weekdays or weekends. He can be reached day or night at (919) 352-9411 for a free consultation.
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About the author

Damon Chetson

Damon Chetson is a criminal lawyer practicing criminal defense law in the Research Triangle (Raleigh, Durham, Cary, Apex, and surrounding communities) in North Carolina. He provides aggressive criminal defense for clients charged with serious felonies, misdemeanors, and traffic (DUI, drunk driving, DWI) offenses. He can be reached by calling (919) 352-9411 anytime weekdays, evenings, weekends or Holidays or by email at damon@chetson.com.

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North Carolina Criminal Law: Felonies vs. Misdemeanors

On 03.06.10, By Damon Chetson

What is the difference between a felony and a misdemeanor? In merry old England, from where we inherited our criminal law, a felony was a crime for which someone could serve at least one year or more. And a misdemeanor was a less serious crime for which the penalty was less than a year.

In North Carolina, crimes that were a misdemeanor at common law (inherited from colonial and early state history) remain misdemeanors, and crimes that were felonies at common law remain felonies.

But the legislature can override the common law, and establish whether a crime is a misdemeanor or a felony.

Note that just because you’re convicted of a felony or a misdemeanor, does not mean you will spend any time in jail at all. Sentencing in North Carolina has also been changed, and no longer follows the old English (or common law) system.

Here’s the statute:

§ 14-1. Felonies and misdemeanors defined.
A felony is a crime which:
(1) Was a felony at common law;
(2) Is or may be punishable by death;
(3) Is or may be punishable by imprisonment in the State’s prison;
or
(4) Is denominated as a felony by statute

Damon Chetson is a criminal lawyer. He practices in Raleigh, Apex, and Cary, North Carolina. He also defends individuals charged with crimes throughout the Research Triangle. He works hard to defend his clients' rights. DWI Raleigh lawyer Damon Chetson is available day or night, weekdays or weekends. You can call him for a free consultation at (919) 352-9411 weekdays, evenings, weekends, and Holidays.
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About the author

Damon Chetson

Damon Chetson is a criminal lawyer practicing criminal defense law in the Research Triangle (Raleigh, Durham, Cary, Apex, and surrounding communities) in North Carolina. He provides aggressive criminal defense for clients charged with serious felonies, misdemeanors, and traffic (DUI, drunk driving, DWI) offenses. He can be reached by calling (919) 352-9411 anytime weekdays, evenings, weekends or Holidays or by email at damon@chetson.com.

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North Carolina Criminal Lawyer: Habitual Felons or Three Strikes and You’re Out

On 03.05.10, By Damon Chetson

In the 1990s, like most states, North Carolina enacted habitual offender statutes (or three strikes or repeat offender statutes). North Carolina has a couple different such statutes. The most important one is the habitual felon statute. The statutes mostly are failures as crime prevention tools.

But they are very harsh. So if you’ve got two felonies, be careful about getting your third. Three felonies – assuming they were committed consecutively after each conviction – qualifies a defendant for habitual felon status.

Here’s how it works. The state can count felonies from other states, or federal felonies (except alcohol-related felonies). The state can only count one felony committed while under the age of 18.

The state can only count felonies for habitual purposes if the each crime happened after the person was convicted of the previous felony. So, for instance, if you committed a felony on January 10, 2010, were arrested on January 20, 2010, were released from custody on January 30, 2010, and committed a second felony on February 15, 2010, and were convicted of the first felony on March 1, 2010, you would only have one felony for habitual purposes, because the second felony was committed before you were convicted of the first felony.

Habitual felon status bumps the punishment from whatever Class it was, to a Class C. The points used for habitual felon status can’t be used to calculate prior record level as well.

What this does is make very low level drug offenses by habitual felons very very harsh penalties indeed. If you’ve been convicted of a series of Class H or Class I drug possession charges, prepare to face a habitual felon charge. The DA will try to use the habitual felon charge to get you to plea to the Class I drug possession charge without having to go to trial. It’s a horrible law, but you should be aware of getting multiple minor drug felony charges.

See the statute:

§ 14-7.1. Persons defined as habitual felons.

Any person who has been convicted of or pled guilty to three felony offenses in any federal court or state court in the United States or combination thereof is declared to be an habitual felon. For the purpose of this Article, a felony offense is defined as an offense which is a felony under the laws of the State or other sovereign wherein a plea of guilty was entered or a conviction was returned regardless of the sentence actually imposed. Provided, however, that federal offenses relating to the manufacture, possession, sale and kindred offenses involving intoxicating liquors shall not be considered felonies for the purposes of this Article. For the purposes of this Article, felonies committed before a person attains the age of 18 years shall not constitute more than one felony. The commission of a second felony shall not fall within the purview of this Article unless it is committed after the conviction of or plea of guilty to the first felony. The commission of a third felony shall not fall within the purview of this Article unless it is committed after the conviction of or plea of guilty to the second felony. Pleas of guilty to or convictions of felony offenses prior to July 6, 1967, shall not be felony offenses within the meaning of this Article. Any felony offense to which a pardon has been extended shall not for the purpose of this Article constitute a felony. The burden of proving such pardon shall rest with the defendant and the State shall not be required to disprove a pardon.

If you're in need of a tough, caring Raleigh, Cary or Apex criminal lawyer, give Damon Chetson a call (919) 352-9411 anytime. Damon represents individuals charged throughout the Research Triangle - Wake, Durham, Johnston, Lee, Harnett, Orange, and Chatham counties. DWI Raleigh lawyer Damon Chetson is available day or night, weekdays or weekends. Call him anytime - weekdays, weekends, evenings or holidays.
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Damon Chetson

Damon Chetson is a criminal lawyer practicing criminal defense law in the Research Triangle (Raleigh, Durham, Cary, Apex, and surrounding communities) in North Carolina. He provides aggressive criminal defense for clients charged with serious felonies, misdemeanors, and traffic (DUI, drunk driving, DWI) offenses. He can be reached by calling (919) 352-9411 anytime weekdays, evenings, weekends or Holidays or by email at damon@chetson.com.

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Medicaid Fraud: How Does Someone Get “Caught”

On 03.04.10, By Damon Chetson

Medicaid is a mostly State-run program. The Federal Government provides the money, and some guidelines. The states themselves handle the day-to-day operations of Medicaid programs.

Medicare is a Federally administered program. The basic scheme is that private providers offer medical services to the poor (Medicaid) or the elderly (Medicare), bill the government (state or federal) for reimbursement for the services provided.

Because there is a great deal of disjuncture between the services provided and the services paid, fraud can creep in. Even where there is no fraud, the government can suspect there is fraud and can accuse providers of Medicaid or Medicare fraud based on billing information provided by the provider at the time of billing.

How does the government detect fraud?

In some cases, whistleblowers will call the government to inform them that a provider has been billing fraudulently. This is comparatively rare, but does happen, especially when a disgruntled employee leaves a provider and decides to exact revenge.

In other cases, the provider is caught up in a different criminal enterprise – usually organized crime – and the Medicaid or Medicare fraud is uncovered.

In still other cases, the government hires outside contractors who use complex review techniques and computer programs to check providers’ bills against the average for that region. If providers’ bills deviate substantially, the government may conduct a more intensive investigation to determine whether the provider is intentionally committing fraud.

The intentionality can be inferred from conduct. The government does not have to prove that the company wanted to “cheat” the government. The government merely needs to prove that the company knew and either permitted to continue or did nothing to stop double billing, excessive billing, billing where no care was provided, and so forth.

These are the grey cases, where a good white collar lawyer Raleigh is important.

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Damon Chetson

Damon Chetson is a criminal lawyer practicing criminal defense law in the Research Triangle (Raleigh, Durham, Cary, Apex, and surrounding communities) in North Carolina. He provides aggressive criminal defense for clients charged with serious felonies, misdemeanors, and traffic (DUI, drunk driving, DWI) offenses. He can be reached by calling (919) 352-9411 anytime weekdays, evenings, weekends or Holidays or by email at damon@chetson.com.

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How is Medicaid Fraud Defined?

On 03.04.10, By Damon Chetson

Medicaid Fraud is a complex area of the law involving either restitution, civil penalties, and possible criminal penalties.

The problem is that what the government sometimes counts as fraud, is merely aggressive, and perfectly legal, billing on the parts of providers.

Whether you’re in the category of a company/person accused of outright fraud – where you billed the State, but no services were provided – or in the category of a company/person who has merely billed in excess of customary rates, the penalties can be very harsh.

Here’s what is often defined as Medicaid Fraud:

  • Billing for services not rendered: A provider bills Medicaid for a procedure or service that was not actually provided.
  • Double Billing: A provider bills Medicaid twice for the same procedure or service.
  • Billing for unnecessary services: A provider misrepresents the diagnosis and symptoms on patient records and billing invoices in order to obtain payment for unnecessary services.
  • Drug Substitution: A pharmacist fills a recipient’s prescription with a generic drug, but bills Medicaid for a higher cost brand name drug.
  • Kickbacks: A provider offers or pays a kickback to induce someone to refer Medicaid recipients to that provider as patients or clients. Examples of kickbacks include cash, vacations, and gifts.
  • Supplemental Charges: A provider charges a Medicaid recipient for a service which is covered by Medicaid and should be billed to Medicaid, and then charges the recipient the difference between the provider’s usual fee and what Medicaid pays.
  • Inflating the Usual and Customary Charges: A provider charges Medicaid more than their usual and customary charge for the same product or service billed to other insurers and the public. A provider might inflate the cost of the procedure, service or goods provided.

Apex criminal lawyer Damon Chetson defends people charged with felonies, misdemeanors, traffic and DWI charges in Raleigh, Cary, and Apex, NC. DWI Raleigh lawyer Damon Chetson is available day or night, weekdays or weekends. He can be reached for a free consultation (919) 352-9411.
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About the author

Damon Chetson

Damon Chetson is a criminal lawyer practicing criminal defense law in the Research Triangle (Raleigh, Durham, Cary, Apex, and surrounding communities) in North Carolina. He provides aggressive criminal defense for clients charged with serious felonies, misdemeanors, and traffic (DUI, drunk driving, DWI) offenses. He can be reached by calling (919) 352-9411 anytime weekdays, evenings, weekends or Holidays or by email at damon@chetson.com.

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Medicaid Fraud Lawyer Raleigh – Prosecutions Coming

On 03.04.10, By Damon Chetson

Governor Bev Perdue has announced that the State of North Carolina will begin more vigorous prosecutions of those accused of Medicaid fraud. Obviously budget conditions in the state and the nation is pushing the governor to look for money everywhere and anywhere, including from those who bill the State for state administered Medicaid expenses.

This aggressive prosecution is surely to pull in people who are truly innocent of the charges. Obviously Medicaid billing rules are far from clear, and what may be “fraud” in the government’s eyes, may simply be a company seeking to bill at the highest possible rate.

In the end, it’s likely that the State of North Carolina is threatening this action not so much because it believes abuse is rampant, but because it wants to send a warning shot over the bows of health care providers who bill the government that prosecution awaits if the government believes it has been overbilled.

In addition to the true crooks, some companies are going to face the threat of prosecution or actual prosecution so as to convince everyone else out there to dot their Is and cross their Ts.

Unfortunately for the companies that have been targeted by the government, life is not going to be pleasant for the next 18 to 24 months.

If you need to talk to me about how to defend against possible Medicaid fraud prosecution, feel free to give a call at (919) 352-9411.

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Damon Chetson

Damon Chetson is a criminal lawyer practicing criminal defense law in the Research Triangle (Raleigh, Durham, Cary, Apex, and surrounding communities) in North Carolina. He provides aggressive criminal defense for clients charged with serious felonies, misdemeanors, and traffic (DUI, drunk driving, DWI) offenses. He can be reached by calling (919) 352-9411 anytime weekdays, evenings, weekends or Holidays or by email at damon@chetson.com.

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North Carolina Criminal Lawyer: Assaults and Threats against Public Officials

On 03.04.10, By Damon Chetson

Someone who assaults – places a public official in imminent fear of being touched or hit or actually hits or unlawfully touches a public official – may be convicted of a Class F felony under Sec. 14-16.6.

In addition, anyone who threatens a public official or mails a letter or other document that threatens a public official can be convicted of a Class I felony under Sec. 14-16.7.

Here are the statutes:

§ 14-16.6. Assault on executive, legislative, or court officer.
(a) Any person who assaults any legislative officer, executive officer, or court officer, or any person who makes a violent attack upon the residence, office, temporary accommodation or means of transport of any one of those officers in a manner likely to endanger the officer, shall be guilty of a felony and shall be punished as a Class I felon.
(b) Any person who commits an offense under subsection (a) and uses a deadly weapon in the commission of that offense shall be punished as a Class F felon.
(c) Any person who commits an offense under subsection (a) and inflicts serious bodily injury to any legislative officer, executive officer, or court officer, shall be punished as a Class F felon.

§ 14-16.7. Threats against executive, legislative, or court officers.
(a) Any person who knowingly and willfully makes any threat to inflict serious bodily injury upon or to kill any legislative officer, executive officer, or court officer, shall be guilty of a felony and shall be punished as a Class I felon.

(b) Any person who knowingly and willfully deposits for conveyance in the mail any letter, writing, or other document containing a threat to inflict serious bodily injury upon or to kill any legislative officer, executive officer, or court officer, shall be guilty of a felony and shall be punished as a Class I felon.

Damon Chetson is a criminal lawyer. He practices in Raleigh, Apex, and Cary, North Carolina. He also defends individuals charged with crimes throughout the Research Triangle. He works hard to defend his clients' rights. DWI Raleigh lawyer Damon Chetson is available day or night, weekdays or weekends. You can call him for a free consultation at (919) 352-9411 weekdays, evenings, weekends, and Holidays.
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About the author

Damon Chetson

Damon Chetson is a criminal lawyer practicing criminal defense law in the Research Triangle (Raleigh, Durham, Cary, Apex, and surrounding communities) in North Carolina. He provides aggressive criminal defense for clients charged with serious felonies, misdemeanors, and traffic (DUI, drunk driving, DWI) offenses. He can be reached by calling (919) 352-9411 anytime weekdays, evenings, weekends or Holidays or by email at damon@chetson.com.

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Call and talk directly to Raleigh criminal and DWI lawyer Damon Chetson at (919) 352-9411 anytime.

Damon Chetson is a DWI lawyer Raleigh, DWI lawyer Cary, and DWI lawyer Apex who helps people charged with Driving While Impaired in Raleigh, NC, Cary, NC, and Apex, NC.

If you have questions about your DWI Raleigh, DUI Raleigh, or Drunk Driving Raleigh charge, call DWI attorney Raleigh, NC or DWI lawyer Raleigh, NC, or DUI lawyer Apex, NC, or DWI lawyer Apex, NC, or Drunk Driving lawyer Raleigh, NC, call (919) 352-9411 anytime.

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