The criminal and traffic law process is a confusing, stressful, and sometimes scary process. Even if you or a loved one have been involved with the criminal process in the past, you may have seen just one aspect of it.
Each state has its own criminal and traffic laws. Just because you or a loved one was involved in case in another state, does not mean you understand the way criminal or traffic cases are handled in North Carolina. In most cases, it is recommended that you obtain the help of a criminal lawyer. A criminal lawyer knows how to protect your rights, negotiate with the District Attorney, and protect you from further criminal charges. If you have any questions, a phone consultation is free at (919) 352-9411.
1. I don’t believe my case is very serious. Should I seek the advice of an attorney?
If you have not yet spoken to an attorney, only you can decide whether your case is serious enough to call an attorney. But even a minor misdemeanor or traffic conviction can have life-changing consequences.
Your ability to keep a job or find a new employment may be affected. Your ability to obtain new credit or loans, apply for any jobs that involve security or law enforcement functions, obtain state licenses – driving, contractor, or professional licenses – may be affected by a criminal record, however minor.
Even if the district attorney has told you that he will recommend a sentence that does not involve any jail time, in exchange for your plea to a misdemeanor conviction, you should still seek the advice of an attorney.
A plea is a conviction, and may become a permanent part of your record. Even if you move out of state, that record follows you.
Consult with an attorney free at (919) 352-9411.
2. I’ve watched Law & Order. I’m a smart person. I think I know how this stuff works. And I don’t have a lot of money right now to hire an attorney. Should I hire an attorney?
You’ve probably also watched ER and House, but you would never think of doing your own medical exam or open heart surgery. Even simple traffic and misdemeanor cases involve complex rules and significant consequences.
Seek the advice of lawyer as early in the process as possible. Doing so can make the difference in your case.
3. I’m embarrassed, ashamed, angry, confused, and worried for myself and my family. I have not been entirely truthful with my wife, husband, parents, children, friends, police, or minister. What should I do?
Those feelings are natural and understandable. The criminal or traffic process is an embarrassing, shaming, confusing, and even angering process. People caught up in the process are usually not at the “top of their games.” They have already been questioned by police, or by a spouse, about the events in question. And they may not have been completely truthful because of fear, shame, anger, or forgetfulness.
In addition, they have done things that, while not criminal, are embarrassing. They may not want to admit those things to the police or to loved ones.
The advice of a lawyer can be very helpful in determining how to proceed. A lawyer has “heard it all.” That’s not to say your case isn’t unique or important. But a good lawyer will not judge you. A good lawyer will give you his advice, based on his experience and training, about how best to proceed.
Most of all, a lawyer is required to keep your conversations with him confidential.
A lawyer is not your spouse, and not your minister. A lawyer is a professional who has a job to do: make sure you face as little criminal (or civil) liability as possible, while achieving as good a result for you as possible.
Call for a free consultation at (919) 352-9411.
4. My husband, wife, son, daughter, parent, daughter has been questioned by police or arrested. What should I do?
Speak to a lawyer. Even if you don’t know all the facts of the matter, getting a lawyer to represent your loved one or friend can be essential to his or her defense.
Ultimately, your loved one or friend will decide whether to accept the services
5. In general, how does the criminal process work?
In general, the criminal process begins with an arrest, includes either a charge or, for more serious allegations, an indictment. It ends with either a dismissal, acquittal, or conviction, by plea or after a trial. While every case is presumed to be “headed for trial” the truth is that only a very small percentage of cases every reach the kind of trials you may have seen on television. Still, you should look for an attorney who will assume your case is headed to trial. Those attorneys merely looking to get rid of your case in a plea agreement may not be zealously protecting your interests.
According to government statistics, roughly 95 percent of trials end with a dismissal of charges or a plea conviction, and are never heard by a jury. So a plea may very well be the best option to take, but your attorney should never assume so from the start.
6. Who prosecutes cases in North Carolina?
In the state of North Carolina, cases are prosecuted by District Attorneys. District Attorneys are elected by voters every four years to carry out criminal prosecutions within that jurisdiction. Wake County, for instance, is in the 10th Judicial District. Its current District Attorney is Colon Willoughby. Durham County is in the 14th Judicial District. Its current District Attorney is Tracey Cline. Chatham and Orange Counties are combined in the 15B Judicial District. Its current District Attorney is Jim Woodall.
Because District Attorneys handle hundred or thousands of cases each year, they hire assistant district attorneys who handle individual cases. Wake County, for instance, has more than 40 assistant district attorneys, each of whom is responsible for dozens of cases at a time. Assistant district attorneys work at the pleasure of the elected district attorney.
Most criminal cases are state cases handled in state courts. Each county in North Carolina has its own courthouse, although some counties, such as Orange and Chatham, are combined into single judicial districts.
Federal cases are handled in federal courts, and are prosecuted by United States Attorneys and their assistants. U.S. Attorneys are appointed by the president. North Carolina is split into the Eastern and Western Districts, with Raleigh and surrounding counties in the Eastern District.
7. What is an arrest?
An arrest is a physical detention by the police. The police may arrest you if they believe they have probable cause to believe that you have committed a crime. An arrest may occur at the time of the alleged event, or after. An arrest may occur subject to an arrest warrant – issued by a judge or magistrate – or, in certain circumstances, without an arrest warrant.
8. What happens if I am arrested?
If you are arrested, a police officer will usually bring you to the police station, sometimes to be interviewed by a detective. If a police officer or detective wishes to talk to you and you are in custody or have been arrested, the police officer is required to advise you of your Miranda rights, described below.
The police may decide simply to arrest you and hold you in custody. If the police have decided to hold you in custody, you will be processed by the City-County Bureau of Investigation (CCBI), who will fingerprint and photograph you. In addition to checking your criminal history, police will check to see whether there are any other outstanding warrants for your arrest.
If police decide to hold you in custody, at some point you will be transferred to your county’s jail. In Wake County, individuals are processed and held at the Wake County Public Safety Center at 330 S. Salisbury Street in Raleigh, behind the courthouse.
9. What rights do I have if I am in police custody or arrested?
If you have been placed under arrest, police must advise you of your rights and receive your “waiver” of your Miranda rights before the police can interview you.
Your rights include the right to remain silent. You will also be informed that you have the right to talk to an attorney prior to questioning and that you have the right to have an attorney present during questioning. You will also be informed that an attorney will be provided to you at the government’s expense if you are unable to afford one.
10. What if I waive my rights?
If you agree to talk to police after waiving your rights, you have acknowledged that you are agreeing to talk to police without the advice and presence of an attorney.
It is almost never wise to talk to police without the advice and presence of an attorney, if you are in custody or a potential suspect in a police investigation.
Sometimes police may ask suspects to sign a written document called a “Waiver of Rights.” That document is just a formality. Even if you decide not to sign the document, you may still have waived your rights if you agreed verbally to talk to police without an attorney present.
11. Should I talk to other people about my arrest or the events surrounding my arrest?
The short answer is: No. While you may want to “get your side of the story out,” now is not the time.
The phones in and out of the jail are taped. Mail is monitored. And other people in the jail may be anxious to cut a “deal” with prosecutors. In exchange for telling prosecutors what you may have told them.
In fact, if police know that you have told other people about the circumstances leading to your arrest, police or prosecutors may force others to reveal what you have told.
The only person you should talk to about the facts surrounding your case and arrest is your attorney.
12. Police officers have promised me that they will… if I cooperate with them and don’t ask for a lawyer.
Police are under no obligation to be honest with you about why they want to talk to you. The Supreme Court of the United States has ruled that police have the right to lie to people they are interviewing.
In addition, police may make promises, or appear to make promises, in exchange for your cooperation. They are not required to keep those promises.
It is always best to have an attorney present when negotiating with the police or a district attorney about the outcome of your case.
13. Does this mean I should never talk to police?
You should avoid talking to police if talking to police means that you risk greater chance of being arrested or charged with a crime yourself.
But if you are merely an innocent witness and had no involvement in the events whatsoever – perhaps you were just walking down the street and saw something happen – then there may be no harm at all.
14. The police officer was aggressive, mean, rude, or unfriendly to me. What should I do?
You should always be polite and courteous. Interacting with police can be stressful. Police officers have difficult jobs. And police officers are human beings who have good days and bad days. Being courteous can make life easier for the police officer, and for you.
Being courteous, however, does not mean you should give up your rights. If you don’t want to talk to a police officer, you should politely tell the police officer that you wish to leave and go on your way.
If the police officer orders you not to leave, then you should not say anything further. If the police officer holds you in custody, you should request a lawyer.
15. My spouse, child, friend has been arrested and is custody. What is the procedure?
After being fingerprinted and “booked” by the police, the police may decide to hold a suspect in custody if they believe they have probable cause that the suspect has committed a crime.
“Probable cause” does not mean that the person has committed a crime or done anything wrong at all. Many people are held in North Carolina jails each year who have never committed a crime. “Probable cause” merely means that the police have “enough” evidence, however weak, to hold the suspect in custody in jail.
Within a short period of time – usually no longer than 48 hours – the police must bring the suspect – you, your loved one, or a friend – before a judge for a hearing.
In North Carolina, this hearing is called a “First Appearance.”
16. What is a “First Appearance” hearing?
A “First Appearance” hearing for most defendants is the most important single hearing in the criminal process. Because the hearing is so important, a person accused of a crime should absolutely have an attorney at the “First Appearance” hearing.*
At the “First Appearance” hearing, an individual is notified of the charges that have been filed against him. In addition, the individual is informed by the judge of his rights, which include the right to the appointment of an attorney by the court if the individual cannot afford one.
Most importantly, the judge at the “First Appearance” decides whether the individual can be released from custody and, if so, whether the individual must comply with any conditions or post bail. If the judge decides that bail should be set, the judge decides the amount of the bail, and whether the bail is secured or unsecured.
The judge will also hear from an assistant district attorney who will explain to the judge the charges on which the individual is being held. The assistant district attorney may also tell the judge whether the individual has a past criminal record.
If an individual in custody does not have his own attorney present in the courtroom to make an argument on his behalf about his release from custody, the judge only hears from the District Attorney.
These hearings move very quickly. Dozens of cases are handled in a three hour court session. It is crucial that you or your loved one have an attorney present so that the best case can be made about your or your loved one’s release from custody.
Because the next bail hearing may not happen for weeks, this is the first, and best shot, to secure release from jail. In addition, many judges are reluctant to review other judges’ bail decisions. As a result, once a high bail is set, it is sometimes difficult to get it reviewed so that the person can get out of custody.
* Even if the person accused of a crime will later be declared “indigent” and eligible for a public defender, the person should try if at all possible to have an attorney present at the “First Appearance” so that the attorney can make a case for the person’s release from custody.
17. How does a judge decide bail?
In North Carolina, a judge may consider various factors, including the defendant’s criminal record, the seriousness of the charges, the strength or weakness of the evidence against the individual, as well as other factors in the individual’s life: work history, employment status, whether the individual has family and friends in the state. North Carolina law favors unsecured release, meaning that the Defendant is not required to pay a bond in order to be released from custody prior to trial.
Judges generally want to ensure that the individual will appear for court if he is let out of custody, will not be a danger to others if let out of custody, and will not destroy any evidence that may exist.
It is important for the judge to hear from an attorney on behalf of the individual about the individual’s ability to appear for his court date and not present a danger to the community.
18. I or my loved one or friend have been released from custody. What do I have to do?
The release from custody usually includes various rules that the individual must follow. Those rules will be listed in the judge’s order for release. An individual released from custody must comply with all of the judge’s rules.
In addition, the individual must be on time and present for all court appearances. Failure to appear for court will lead to a judge’s determination that the individual has been “Called & Failed.” An Order for Arrest will be issued, and the individual is subject to immediate arrest and a return to custody.
In addition, if the individual was originally “out on a bond,” that bond will most likely be forfeited, and the money lost.