Assume for a moment that the police officer has a valid reason or a reasonable articulable suspicionReasonable suspicion is the level of proof required to stop a vehicle or conduct a Terry Stop, where there is no apparent evidence of a crime. Reasonable suspicion is more than just a hunch. to stop the car. Does that mean that a driver accused of a DWIA DWI is a Driving While Impaired offense. It is more commonly referred to as drunk driving. In North Carolina, the term DWI is used. In other states, the terms DUI or OUI may be used. North Carolina's DWI is a misdemeanor, punishable by up to three years in jail. is sunk? No.

Just because an officer has enough legal grounds to stop a car does not necessarily mean that the officer has legal grounds to arrest the driver on a Driving While Impaired charge (DWIA DWI is a Driving While Impaired offense. It is more commonly referred to as drunk driving. In North Carolina, the term DWI is used. In other states, the terms DUI or OUI may be used. North Carolina's DWI is a misdemeanor, punishable by up to three years in jail.).

The prosecutorA District Attorney is the represented of the State, usually elected by the people of a judicial district, to prosecute crimes on behalf of the State. The Wake County District Attorney is Colon Willoughby, Jr. A District Attorney usually has a staff, including assistant district attorneys who are the actual prosecutors who handle most of the day-to-day caseload. must prove that in the second phase of the police officer’s investigation he developed enough evidence to form a probable causeProbable cause is the standard of proof that justifies the arrest (or indictmentAn indictment is a finding by a grand jury that there is probable cause to believe the defendant committed a crime. An indictment is not a finding of guilt. An indictment, rather, is a method by which a prosecutor moves a case into Superior Court for resolution by plea or trial by jury.) of an individual. In order to find probable cause, a cautious officer, acting in good faith, must have sufficient information to believe that a crime has been or is being committed. that the driver had been driving while impaired.

The National Highway Traffic Safety Administration teaches two major evidence gathering tasks at this point as part of the officer’s Phase II interaction with the driver. The first task is for the police officer to approach, observe, and interview the driver while still in the car to identify any impairment or intoxication face-to-face.

The officer will identify whether the person has bloodshot eyes, soiled clothing, fumbling fingers, alcohol containers, drugs or drug paraphernalia, bruises, bumps or scratches or whether the person is slurring his or her speech, admission to drinking, abusive language, etc.

The officer will also identify any smells – alcoholic beverages, marijuana, cover up of odors, breath-sprays, or unusual odors.

Next time I’ll talk about additional observations the police officer should record before validly arresting the driver.

I recently observed a case where the alleged crime had been committed in 1992, and in that case the defendant was sentenced under the old North Carolina sentencing system.

But for all felonies or misdemeanors alleged to have been committed after December 1, 1995, North Carolina’s Structured SentencingStructured sentencing replaced Fair Sentencing in 1994. It created a felony sentencing chart and a misdemeanor sentencing chart in which most, but not all, punishments are imposed according to the level of the crime, and the individual's prior record level. system applies.  Structured sentencingStructured sentencing replaced Fair Sentencing in 1994. It created a felony sentencing chart and a misdemeanor sentencing chart in which most, but not all, punishments are imposed according to the level of the crime, and the individual's prior record level. applies state wide, whether you’re in Cary, Apex, Raleigh, Fuquay Varina, or Asheville: the same rules apply.  Federal crimes are handled by the federal courts under a different (and much more complicated) structured sentencingStructured sentencing replaced Fair Sentencing in 1994. It created a felony sentencing chart and a misdemeanor sentencing chart in which most, but not all, punishments are imposed according to the level of the crime, and the individual's prior record level. system.

But most criminal cases are state cases, so let’s talk a little about how North Carolina’s Structured SentencingStructured sentencing replaced Fair Sentencing in 1994. It created a felony sentencing chart and a misdemeanor sentencing chart in which most, but not all, punishments are imposed according to the level of the crime, and the individual's prior record level. system works.

First, crimes are divided into “classes.” Felonies start at Class A (First Degree Murder) which is punishable by life or death and go all the way down to Class I (the least serious, including many minor drug or theft offenses.)  There are two Class B offenses – B1 and B2 that each are treated differently.  Misdemeanors are handled separately, from Class A1 (the most serious, including Assault on a Female) to Class 3 (the least serious, including simple marijuana possession).

Second, individual defendants are assigned to levels.  A Level 1 is someone who has no Class A1 or higher convictions.  A Level 2 is someone who has at least 1 convictionA conviction is a formal finding by a court - either following a trial by a judge or jury or following the entry of a pleaA plea agreementA plea agreement is usually a negotiated agreement between the defendant (through his lawyer) and the prosecution where the defendant agrees to plead guilty in exchange for some benefit, including, but not limited to, a reduced sentence or a reduction of charges. An Alford Plea is a guilty plea with all of the benefits and consequences of a guilty plea, but where the defendant does not admit personal guilt. is usually a negotiated agreement between the defendant (through his lawyer) and the prosecution where the defendant agrees to plead guilty in exchange for some benefit, including, but not limited to, a reduced sentence or a reduction of charges. An Alford Plea is a guilty plea with all of the benefits and consequences of a guilty plea, but where the defendant does not admit personal guilt. - of guilt. point.  And a Level 6 is someone who has 19 or more prior sentencing points.  Level 6 is the highest, or worst.

Third, each class/level box has three ranges: mitigated, presumptive, or aggravated.  Presumptive is where everyone starts.  If there are mitigating factors – either statutory or common law – the judge may sentence in the mitigated range, which is better.  If there are aggravating factors, the judge may sentence in the aggravated range, which is worse.  If the judge doesn’t find aggravating or mitigating factors to sentence in either of those two ranges, then the presumptive range is used.  Most defendants are sentenced within the presumptive range.   Note that there is also a way for the judge to deviate from the structured sentencingStructured sentencing replaced Fair Sentencing in 1994. It created a felony sentencing chart and a misdemeanor sentencing chart in which most, but not all, punishments are imposed according to the level of the crime, and the individual's prior record level. scheme if he finds “extraordinary mitigation”.  This rarely occurs, and usually it is done because the prosecutorA District Attorney is the represented of the State, usually elected by the people of a judicial district, to prosecute crimes on behalf of the State. The Wake County District Attorney is Colon Willoughby, Jr. A District Attorney usually has a staff, including assistant district attorneys who are the actual prosecutors who handle most of the day-to-day caseload. agrees that there should be deviation.

Third, this is a truth-in-sentencing system.  If convictedA conviction is a formal finding by a court - either following a trial by a judge or jury or following the entry of a pleaA plea agreementA plea agreement is usually a negotiated agreement between the defendant (through his lawyer) and the prosecution where the defendant agrees to plead guilty in exchange for some benefit, including, but not limited to, a reduced sentence or a reduction of charges. An Alford Plea is a guilty plea with all of the benefits and consequences of a guilty plea, but where the defendant does not admit personal guilt. is usually a negotiated agreement between the defendant (through his lawyer) and the prosecution where the defendant agrees to plead guilty in exchange for some benefit, including, but not limited to, a reduced sentence or a reduction of charges. An Alford Plea is a guilty plea with all of the benefits and consequences of a guilty plea, but where the defendant does not admit personal guilt. - of guilt. – either by pleaA plea agreementA plea agreement is usually a negotiated agreement between the defendant (through his lawyer) and the prosecution where the defendant agrees to plead guilty in exchange for some benefit, including, but not limited to, a reduced sentence or a reduction of charges. An Alford Plea is a guilty plea with all of the benefits and consequences of a guilty plea, but where the defendant does not admit personal guilt. is usually a negotiated agreement between the defendant (through his lawyer) and the prosecution where the defendant agrees to plead guilty in exchange for some benefit, including, but not limited to, a reduced sentence or a reduction of charges. An Alford Plea is a guilty plea with all of the benefits and consequences of a guilty plea, but where the defendant does not admit personal guilt. or after a trial – the defendant will serve at least the bottom of the sentencing range, and as much as the top of the range.  What happens is that the defendant goes into the DOCA prison is a facility, operated by the Department of CorrectionsA prison is a facility, operated by the Department of Corrections in North Carolina or the Bureau of PrisonsA prison is a facility, operated by the Department of Corrections in North Carolina or the Bureau of Prisons in the federal system, where an offender is sent to serve an active prison sentence of some length. in the federal system, where an offender is sent to serve an active prison sentence of some length. in North Carolina or the Bureau of PrisonsA prison is a facility, operated by the Department of Corrections in North Carolina or the Bureau of Prisons in the federal system, where an offender is sent to serve an active prison sentence of some length. in the federal system, where an offender is sent to serve an active prison sentence of some length. and can work off the good time, by cooperating, not getting into fights in prisonA prison is a facility, operated by the Department of CorrectionsA prison is a facility, operated by the Department of Corrections in North Carolina or the Bureau of PrisonsA prison is a facility, operated by the Department of Corrections in North Carolina or the Bureau of Prisons in the federal system, where an offender is sent to serve an active prison sentence of some length. in the federal system, where an offender is sent to serve an active prison sentence of some length. in North Carolina or the Bureau of PrisonsA prison is a facility, operated by the Department of Corrections in North Carolina or the Bureau of Prisons in the federal system, where an offender is sent to serve an active prison sentence of some length. in the federal system, where an offender is sent to serve an active prison sentence of some length., being a model prisoner, so that the DOCA prison is a facility, operated by the Department of CorrectionsA prison is a facility, operated by the Department of Corrections in North Carolina or the Bureau of PrisonsA prison is a facility, operated by the Department of Corrections in North Carolina or the Bureau of Prisons in the federal system, where an offender is sent to serve an active prison sentence of some length. in the federal system, where an offender is sent to serve an active prison sentence of some length. in North Carolina or the Bureau of PrisonsA prison is a facility, operated by the Department of Corrections in North Carolina or the Bureau of Prisons in the federal system, where an offender is sent to serve an active prison sentence of some length. in the federal system, where an offender is sent to serve an active prison sentence of some length. will grant good time. Over time the good time adds up so that the defendant moves down to the lowest end of the range.

North Carolina has done away with parole.  Life means life.  And and active sentence of 12 to 18 months mean the defendant will serve at least 12 months.

Even if the state’s case is strong, there’s a lot a Apex, Cary, or Raleigh criminal lawyer can do within the structured sentencingStructured sentencing replaced Fair Sentencing in 1994. It created a felony sentencing chart and a misdemeanor sentencing chart in which most, but not all, punishments are imposed according to the level of the crime, and the individual's prior record level. scheme to get a lesser sentence.  The criminal lawyer can put together strong evidence that, in spite of the crime, the defendant has been otherwise a good citizen, with a family to support, good contributions to the community, perhaps church involvement, and other kinds of factors relating to the crime that mean the defendant should be given “the bottom end of the mitigated.”

Or, in exceptional circumstances, the Apex, Raleigh or Cary criminal lawyer may be able to argue “extraordinary mitigation.”  This is rare, but possible and depends on putting on strong evidence at a sentencing hearing.

Call (919) 352-9411 to talk to an Apex, Raleigh or Cary criminal lawyer weekdays, evenings, or weekends who can give some advice as to how sentencing might work in your case.

Police and investigators also know about these services, and they also know that lots of people under investigation may use Facebook, Twitter, MySpace – not just celebrities!

But there are problems with such services if you are facing a DUI, drug, misdemeanor, or felony charge.

I’ve seen instances of police investigators or detectives in Raleigh, Cary or Apex searching and printing out MySpace pages or Facebook pages where there may be evidence of “gang activity” (pictures of people flashing gang signs or referring to gangs), “drug activity” (admissions or pictures of people using drugs), or other sorts of activity that might suggest guilt. In many cases, these MySpace pages just show people having a good time, but, coupled with other evidence, they may suggest guilty or criminal conduct if ever presented to a juryA jury may be either a grand jury or a petit jury. A grand jury is a jury that determines whether there is probable cause to believe the defendant committed a crime. The result is an indictmentAn indictment is a finding by a grand jury that there is probable cause to believe the defendant committed a crime. An indictment is not a finding of guilt. An indictment, rather, is a method by which a prosecutor moves a case into Superior Court for resolution by plea or trial by jury. that sends the case into Superior Court, perhaps for a jury trial. A petit jury or simply a jury is the jury of 12 people who have been selected to hear and render a verdict in a case..

This isn’t to mean you should be paranoid.  Police don’t regularly check Facebook or MySpace or other pages like that for criminality.  But if they’re investigating a crime, and think you may be involved or know who is involved, they may check to see if you have a MySpace or Facebook page.

Where can this evidence be most damaging?  Well, let me give you one example.  Let’s imagine you’ve been stopped for a DUI.  And let’s imagine your Facebook, MySpace or Twitter page have comments you made earlier in the night that you were going out to “party” or “drink” or “get wasted”.  Let’s imagine the police really want to nail you.  It’s very easy to do a search, find if you have such a page, find out if you’ve made comments that are incriminating, and use those to suggest to a juryA jury may be either a grand jury or a petit jury. A grand jury is a jury that determines whether there is probable cause to believe the defendant committed a crime. The result is an indictmentAn indictment is a finding by a grand jury that there is probable cause to believe the defendant committed a crime. An indictment is not a finding of guilt. An indictment, rather, is a method by which a prosecutor moves a case into Superior Court for resolution by plea or trial by jury. that sends the case into Superior Court, perhaps for a jury trial. A petit jury or simply a jury is the jury of 12 people who have been selected to hear and render a verdict in a case. that you were planning to get drunk, and took no precautions when you drove your car.

Even if your Facebook or MySpace page is “private” it may not be completely private.  And even if it is private, the police could subpoena records from Facebook or MySpace of your “private” pages.  So simply making these pages “private” is not a solution.

My advice is obviously be smart about what you write on your Facebook pages, and what kind of pictures you post.  You don’t want to end up like Michael Phelps, where pictures of smoking a bong are used to prove criminal activity. And you don’t want to end up like The Hills star Stephanie Pratt who got stopped for a DUI and whose Twitter page listed her statement earlier that night that she was going out to party.

If you think you may be accused of a crime, or you’ve been stopped for a DUI in Raleigh or Cary or Apex, and you want to talk about how to handle Facebook, MySpace or Twitter social networking sites, give me a call at (919) 352-9411

Now, it’s true, some cases are very complex, and if you’re charged with murder, it’s going to cost you a chunk of change in order to hire a criminal lawyer, not to mention all of the experts you would need.  But, in truth, many criminal defendants in murder cases, especially the ones facing capital charges (the death penalty), have public defenders.  That’s because the costs of defending those charges would bankrupt a lot of middle class people.

But the truth of the matter is that criminal representation is very affordable, especially if it’s a non-murder case.  In addition, you can hire a criminal attorney to work on part of your case, and if you don’t have the money to hire him to defend you all the way until trial, you can apply to have a public defenderA court appointed lawyer is a lawyer appointed by the Court (sometimes via the Public Defender Office) to represent an individual in court. Only indigent (poor) people qualify for a court appointed lawyer. A public defender is a lawyer who is employed by the Public Defender Office and who only represents indigent (poor) clients. appointed to your case.  Public Defenders in Wake County are excellent.

But even if you expect to have a public defenderA court appointed lawyer is a lawyer appointed by the Court (sometimes via the Public Defender Office) to represent an individual in court. Only indigent (poor) people qualify for a court appointed lawyer. A public defender is a lawyer who is employed by the Public Defender Office and who only represents indigent (poor) clients., you should absolutely spend the $2,000 to $4,000 it costs to hire someone like me to represent you before your arrest, and at your early hearings.

That’s because there several points early in the process – your First Appearance Hearing, for instance – where having a criminal lawyer represent you can make a huge difference in the outcome.

For instance, the criminal lawyer can make the argument that you are not a flight risk or a danger to the community, and that you ought to be let out on a small bond.

That’s crucially important, so that you can continue to live with your family, go to work, live a normal life, and help in your defense.

Yes, criminal lawyers aren’t cheap.  But neither are they outrageously expensive.  And they are well worth the money.

So call today at (919) 352-9411.  I charge flat fees for all my services; you know what you’re getting up front, before you pay.  And I have payment plans so that even if you can’t write me a check on day one, I may be able to work with you to arrange payment in installments.

These are the ways that a criminal lawyer can protect you. And it really is not very expensive, when you consider what’s at stake.  For $2,000 to $4,000 you will protect your rights, protect your family, and stand a better chance of spending the time before your case’s conclusion out of jail.

Call any time – weekdays or weekends – at (919) 352-9411 for advice.

The answer is general no.

I don’t care whether you were in Timbuktu when the crime happened. You have no obligation to talk to police without a criminal lawyer present. And there is no way that you should talk to police without a lawyer present.

You should never lie to police.  In fact, lying to FBI agents is a federal crime, and giving a fake name to a police officer in North Carolina is a misdemeanor.

But you should not talk to police unless you are reporting a crime.  If you’re under investigation, don’t talk to police.

Now, you may be asking: I’ve got nothing to hide. Why shouldn’t I talk to the police?  The answer is that the police don’t know you didn’t do the crime.  They’re looking for suspects. And one way the look for suspects is to question people repeatedly until they rule them out.

One of the ways they trap people is by having them answer questions over and over again, and pointing out discrepancies in the stories.  Because no one tells a story the same way every time, police are trained at picking out differences between the first time you told a story and the second time you told the story.  And when they ask you a third time… well they’re just trying to see whether you tell it a different way.

Even if you’re innocent as the sky is blue, you should always talk to police with your lawyer present. And that’s because usually police don’t have a video, they don’t have blood samples, they don’t have DNA, and so they’re looking for inconsistencies in stories to show to a juryA jury may be either a grand jury or a petit jury. A grand jury is a jury that determines whether there is probable cause to believe the defendant committed a crime. The result is an indictmentAn indictment is a finding by a grand jury that there is probable cause to believe the defendant committed a crime. An indictment is not a finding of guilt. An indictment, rather, is a method by which a prosecutor moves a case into Superior Court for resolution by plea or trial by jury. that sends the case into Superior Court, perhaps for a jury trial. A petit jury or simply a jury is the jury of 12 people who have been selected to hear and render a verdict in a case. that you were lying, or untruthful.

And if you did do the crime.  If you happen to be the actual perpetrator.  Well then you definitely don’t want to talk to police.  You want to keep your mouth shut.

Most of all: you want to get a criminal lawyer.  You want to call (919) 352-9411.

Police are not interested in finding the innocent, they’re interested in finding the guilty, and they’re interested in having a juryA jury may be either a grand jury or a petit jury. A grand jury is a jury that determines whether there is probable cause to believe the defendant committed a crime. The result is an indictmentAn indictment is a finding by a grand jury that there is probable cause to believe the defendant committed a crime. An indictment is not a finding of guilt. An indictment, rather, is a method by which a prosecutor moves a case into Superior Court for resolution by plea or trial by jury. that sends the case into Superior Court, perhaps for a jury trial. A petit jury or simply a jury is the jury of 12 people who have been selected to hear and render a verdict in a case. sort it out.  And you don’t want to be the guy sitting in the defendant’s chair as 12 citizens in a box decide whether you’re guilty or not.