The Criminal Process: FAQ

The criminal  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.

1. What is a misdemeanor in North Carolina?
2. What is a felony in North Carolina?
3. Should I seek the advice of an attorney? I don't believe my case is very serious.
4. Should I hire an attorney? 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.
5. What should I look for when hiring a criminal lawyer?
6. What will a Raleigh criminal lawyer do for me?
7. Do I need a lawyer if I’m innocent?
8. When are police allowed to search my car/home/property?
9. What should I do if I’m contacted by law enforcement for an investigation?
10. What should I do if I’m being questioned by police?
11. I have a warrant for my arrest – what should I do?
12. In general, how does the criminal process work?
13. Who prosecutes cases in North Carolina?
14. What is an arrest?
15. What happens if I am arrested?
16. What rights do I have if I am in police custody or arrested?
17. The police didn’t read me my Miranda Rights. What does that mean for my case?
18. What if I waive my rights?
19. Should I talk to other people about my arrest or the events surrounding my arrest?
20. Police officers have promised me that they will… if I cooperate with them and don’t ask for a lawyer.
21. Does this mean I should never talk to police?
22. The police officer was aggressive, mean, rude, or unfriendly to me. What should I do?
23. My spouse, child, friend has been arrested and is custody. What is the procedure?
24. What is a “First Appearance” hearing?
25. How does a judge decide bail?
26. How do I get someone out of jail?
27. How does the bonding process work?
28. After someone gets bailed out, what happens to the bail money?
29. What happens after someone gets arrested?
30. I or my loved one or friend have been released from custody. What do I have to do?
31. I got charged with a DWI and the police took my license. When do I get to drive again?
32. What’s the difference between District and Superior Court?
33. What is the difference between state and federal court?
34. How long will it take to resolve my case?
35. Will my case go to trial?
36. Should I tell my attorney everything? Including if I am guilty?
37. The person that called the police doesn’t want to press charges or prosecute – does that mean this will all be dismissed?
38. Should I just plead guilty?
39. In a DWI case, should I just plead guilty?
40. Am I going to jail or prison? How can I avoid jail time?
41. What is the difference between jail and prison?
42. I was found guilty in district court - can I appeal?
43. I accepted a plea deal but I’m having second thoughts – can anything be done?
44. What’s the difference between a dismissal or not guilty verdict and an expungement?
45. How can I clear something off of my criminal record?
46. Can a criminal defense lawyer guarantee a result?
47. How do criminal lawyers price their services?
48. Do you accept payment plans?

1. What is a misdemeanor in North Carolina?

In North Carolina, crimes are broken into two main categories: misdemeanors and felonies. Within the misdemeanor category, there is a further breakdown into four classes – A1, 1, 2, and 3. The class of misdemeanor is determined by the seriousness of the offense, with A1 being the most serious and 3 being the least serious.

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2. What is a felony in North Carolina?

There are two main categories of crimes in North Carolina – felonies and misdemeanors. Within the felony category, there are ten different classes, (A, B1, B2, C through I). that are assigned based on the seriousness of the offense. A class A felony is the most serious while a class I is the least serious on the felony scale. The punishment for felony convictions vary by class, but not all result in jail time. For example, a class I conviction can carry a sentence of probation only or can be punished at a maximum of 15 months in jail. Class A felonies, the most serious, carry a maximum penalty of life in prison or the death penalty.

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3. Should I seek the advice of an attorney? I don't believe my case is very serious.

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. If you are charged with a crime in North Carolina, you have three options: you can hire Raleigh criminal attorney, request a public defender if you cannot afford to hire a lawyer, or represent yourself. You are almost always best served by getting an attorney rather than representing yourself. A simple example is if your mother needed open heart surgery, you wouldn’t try to do it yourself. You would find the best doctor possible who focuses in heart surgery to do the procedure. Criminal law is no different. There are rules, processes and complexities that can be difficult to understand if your lawyer lacks the experience in dealing with criminal law.

An experienced Raleigh criminal attorney will work on your behalf to try to get you the absolute best possible outcome. This includes going to court with you, dealing with district attorneys and judges, and handling all of the legal paperwork necessary for your case. An experienced criminal defense lawyer will be able to guide you through the legal process much more smoothly than you could possibly do on your own, or with an inexperienced lawyer.

If you haven’t been charged with a crime, but are being investigated by law enforcement, you should seek pre-arrest representation from a defense attorney as quickly as possible. An experienced lawyer will manage the flow of information between you and law enforcement to try to prevent you from being criminally charged, and more importantly, to try to prevent a criminal conviction.

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.

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4. 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.

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5. What should I look for when hiring a criminal lawyer?

There are several criteria to look for when seeking an attorney:

  1. A focus on criminal law – You should seek a lawyer who spends the majority of his practice on criminal law. If you hire an attorney who practices in many different areas of the law, chances are, he has only general knowledge of each area rather than the in-depth knowledge you need in just one or two areas.
  2. Experience with your specific type of case – You want to know that a defense attorney has experience dealing with exactly what you’ve been charged with. Better yet, it would be ideal if the attorney has seen similar fact patterns in previous cases to what you have in your case. You should also make sure that you understand the difference between state cases and federal cases. There are far fewer Raleigh federal criminal lawyers than those who practice in the state courts.
  3. Find someone you’re comfortable with – Go with your gut feel. Criminal cases usually take time to resolve and they can have a significant impact on your life. You want someone that gives you a good feeling that you think you will get along with. You also want someone who is assertive and has a little bit of an edge so that you get a sense that they’ll be aggressive when handling your case and will fight for you.
  4. Do your research – With the internet, it’s as easy as ever to get information about a specific attorney. How are those attorneys’ online reviews by past clients relative to the attorney you seek to hire? Are they in good standing with their local bar association? Do they have good ratings on AVVO? If you can’t find information on an attorney or you find a lot of negative information, those may be red flags. Also, talk to your friends and see if they have recommendations for you. Chances are that if past clients have had a good experience with a particular defense attorney, you will too.  Look at our reviews to see what clients have said about The Chetson Firm.
  5. Find out up front who will be handling the case – The last thing you want is to have a meeting with an attorney who you are comfortable with and then find out that your case is being passed on to a junior or inexperienced attorney whom you never have had the chance to talk to. Most criminal firms are small, but some of the larger firms will sell you on an experienced attorney and then pass your case to a junior associate.

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6. What will a Raleigh criminal lawyer do for me?

Criminal defense lawyers are trained to analyze each case to see what makes it unique and to identify or determine a defense strategy to get you the best possible outcome. Criminal representation may include:

  • Trying to get your charges dismissed
  • Getting charges reduced
  • Working with you and the district attorney to negotiate a plea deal, including getting the best possible sentence
  • Going to trial to fight your case based on the facts
  • Answering all of the questions you have about the legal process
  • Interpreting the law in a way that you can understand
  • Helping you make decisions about how to defend your case
  • Gathering resources such as expert witnesses, evidence, etc. to most effectively fight your case

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 7. Do I need a lawyer if I’m innocent?

Even if you’re innocent, it would still be in your best interests to have an attorney. Law enforcement arrested you because they believe that they have evidence that points to your involvement in a crime. A prosecutor will use that evidence, and try to gather more, to convict you in the court system. In order to fight your case, you need someone on your side who has experience interpreting all of the evidence in your case, can determine how to best present that evidence to a prosecutor and the court, and understands the legal process to best maneuver through the court system. Every day, innocent people are convicted of crimes they didn’t commit. A good attorney will lessen the chance that this could happen to you.

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8. When are police allowed to search my car/home/property?

Your Fourth Amendment rights protect you from unwarranted search and seizure of your property and personal belongings.

People are most familiar with law enforcement needing a warrant to search property. In order to get this warrant, a case for probable cause needs to be presented to a judge or magistrate for a warrant to be granted. Probable cause means there's reason to believe that the property contains evidence of a crime. It is important to note that they warrant will contain information about specific areas that can be searched. For example, a warrant might say that an entire home can be searched or that the search is contained only to a specific room in the house.

Even though a search warrant is what people are most familiar with, there are other ways that law enforcement can search your property.

  1. When you give police permission – If an officer comes to you and asks to search your property and you say yes, then they are able to search. If you have a roommate and you’re not home, but the roommate gives police approval to search, then they have the right to do so. As a general rule, you should always decline a search request. Especially if you live with other people, you don’t know what they keep in their areas and you don’t want to get in trouble for their potential crimes. Make law enforcement go through the process of getting a warrant and in the meantime, contact a criminal lawyer.
  2. Items in plain view – If an officer stops your car or knocks on the door of your home and sees illegal activity or unlawful items in plain view, that gives them the right to search. For example, if you are stopped for a traffic violation and the officer sees a baggie of marijuana and/or a grinder in your center console, that gives them the right to search the rest of the car.
  3. Emergency situations – There are specific situations in which police can search without a warrant. If someone’s life or health is in danger or police are in hot pursuit of a suspect, they can search as part of that particular investigation.
  4. After the arrest – After you’re arrested, law enforcement can search a premises to search for further information related to the alleged crime such as weapons, evidence and accomplices.

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9. What should I do if I’m contacted by law enforcement for an investigation?

Criminal defense attorneys usually advise people to be polite when dealing with law enforcement. However, you are not obligated to answer any questions. You should then involve a criminal lawyer to evaluate your situation and help make a determination as to whether it would be in your best interests to speak with law enforcement, take lie detector tests, etc.  The thing to keep in mind is that law enforcements’ role is to gather evidence that can be used to charge you and successfully convict you. The evidence gathered in the investigation process is critical, and the less information law enforcement is able to gather, the better. The primary role of a defense lawyer in the pre-arrest process is to manage the flow of information between you and law enforcement.

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10. What should I do if I’m being questioned by police?

You are not required to answer questions asked by police, and in most situations, a criminal lawyer would advise you not to. Be polite, but let them know that you don’t feel comfortable speaking to them without an attorney, and ask for your right to a criminal lawyer. Don’t be panicked and feel like you have to talk. Many people worry that asking for a lawyer will make law enforcement think they’re guilty or they are concerned that failing to answer questions will make police angry. The reality is that you need to look out for your best interests and you need to think about both the short and long term. In the short term, you need to be thinking about limiting the information law enforcement gets that they can use to press charges and long term, to minimize the information that can be used at trial to successfully prosecute you.

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11. I have a warrant for my arrest – what should I do?

Your first step is to contact a criminal defense attorney. Depending on what the warrant is for, for example a Failure to Appear, an attorney might be able to get the warrant struck, preventing you from having to turn yourself in and pay a bond to get out of custody. This one proactive step might save you time and money.

If a warrant cannot be struck, then the next step is to line up friends and family and/or a bondsman so that they are prepared to bond you out. You will then surrender yourself and you will be processed. This includes seeing a magistrate, who will set the bond. If you have an attorney on board already, and depending on the type of charge, an attorney may be there when you see the magistrate to make an argument for the lowest bond possible. Once the bond is set, if you are financially able to bond out, then you may do so. Otherwise, you will remain in custody until the court process begins.

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12. 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.

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13. 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. Durham County is in the 14th Judicial District. Chatham and Orange Counties are combined in the 15B Judicial District.

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.

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14. 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.

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15. 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.

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16. 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.

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17. The police didn’t read me my Miranda Rights. What does that mean for my case?

One of the legal things people are most familiar with, or so they think, is Miranda Rights. Because of popular TV, people think that at the beginning of any encounter with law enforcement, that they are supposed be read their rights and that if they are not, that their rights have been violated. But there’s a bit more to Miranda Rights than what’s shown on TV.

If a person is in custody and is unable to leave, then police are required to read Miranda Rights if they want to question the individual and have the ability to use those answers as evidence. However, if a person is not in custody, deprived of their freedom, then a person does not need to be Mirandized before being questioned.

Whether you have been read your Miranda Rights or not, it is usually best not to answer questions without a criminal lawyer present. Just be polite with the officer and let them know that you do not want to answer questions without the advice of an attorney. Once you’ve shared information, you can’t take it back, so make the smart decision at the beginning.

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18. 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.

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19. 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.

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20. 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.

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21. 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.

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22. 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.

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23. 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."

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24. 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.

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25. 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.

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26. How do I get someone out of jail?

If someone you know has been arrested and a bond has been set, then you can bond them out of jail for them to be released from custody. This can be done in one of several ways: you can either pay the full bond, which will be repaid once the case has been resolved, provided the individual charged attends all court dates, or, you can hire a bondsman for a percentage of the bond (usually 10-15%) to bail the individual out. If you hire a bondsman, the bail fee that you pay is non-refundable. It’s to compensate the bondsman for taking the risk of the overall bond in case the individual does not show up to court.

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27. How does the bonding process work?

After a person is arrested, he/she will see a magistrate who will set a bond. If the bond is reasonable and affordable then the individual can bond out provided they have the financial means to do so.

If the bond set by the magistrate is set too high, then there will be an opportunity to see a judge to revisit the bond and try to get it lowered. There is always a risk when making a bond appearance in front of a judge that the bond will get raised rather than lowered depending on the crime and the surrounding facts.

While the majority of crimes charged are minor, and thus the bond amounts are smaller, it’s never something someone is expecting to have to pay. Minimizing and reducing bonds, for whatever amount, can save valuable money. A criminal defense attorney is very familiar with the bond process and will work to get the bond set at the lowest level possible.

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28. After someone gets bailed out, what happens to the bail money?

The first important thing to note is that there’s a difference between bond and bail. Bond is the amount set by the court for someone to get released from jail. If you can’t afford to pay the entire bond amount (which most people can’t), you can hire a bondsman. If you go that route, you are paying a bondsman a bail amount, which is a percentage (usually 10-15%) of the bond. That bail is the bondsman’s fee for taking the risk that you’ll show up to court. If you don’t, the bondsman is out the bond money that he guaranteed to the court on your behalf. Because of the risk being undertaken, bail fees are non-refundable.

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29. What happens after someone gets arrested?

When someone gets arrested, they are taken to a police station or detention center to get processed. This means that they are fingerprinted, a mugshot is taken, and information is entered into various computer systems regarding the alleged crimes.

Once processed, an individual will then see a magistrate to have the charges explained, have rights read, and to have a bond set. Once a bond is set, a person can then bond out or wait to see a judge to make an argument for a lower bond. If an individual cannot afford to bond out, they will remain in custody. A court date will then be set for the initial hearing of the case. At the first court setting, a judge will ask what the person wants to do in terms of an attorney. The choices are to hire an attorney, request a court appointed attorney, or represent yourself.

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30. 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.

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31. I got charged with a DWI and the police took my license. When do I get to drive again?

If you’ve been charged with a DWI and it was based on a breathalyzer blow of 0.08 or above or you refused to blow, the police took your license. There are circumstances in which you can be charged with a DWI in North Carolina where your license isn’t taken, most commonly, when there is no breathalyzer and the State is awaiting blood results, or if the breathalyzer was under 0.08.

In the case where the license was taken, this is part of a 30-day civil revocation. In most cases, 10 days from the date of the DWI charge, you are eligible to receive a limited driving privilege. 30 days from the charge, you can get your regular driver’s license back, unrestricted, just like it was before you got your DWI.  You will keep that unrestricted license until your case is resolved. If you are found not guilty, nothing further happens with your license. If you are convicted, there will be a further suspension of your license, which will vary based on the facts of your case.

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32. What’s the difference between district and superior court?

In North Carolina’s criminal court system, there are two levels of court (excluding appellate courts). District court is the lower level of trial court where misdemeanors are usually initially resolved and where most felonies start and are sometimes resolved. Cases in district court are heard by a single judge, and trials there are called bench trials, because a judge on the bench makes a ruling determination in all cases.

Superior court is the higher level of the two courts. Misdemeanor cases that resulted in a conviction in district court and have been appealed are heard in this court as well as felonies that have been indicted. Cases in superior court trials are presided over by a judge but are decided by a jury of 12 individuals that must decide unanimously on a verdict. In North Carolina, every individual charged with a crime is entitled to a trial by a jury of his or her peers, which is why an individual convicted by a single judge in district court can choose to appeal to superior court so that can have a trial by jury.

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33. What is the difference between state and federal court?

North Carolina state courts are in place to enforce the laws that have been set by the North Carolina state legislature. Each county is responsible for pressing charges and prosecuting individuals for violations of state law. State level charges are levied by North Carolina state troopers, city police, county sheriffs, or the State Bureau of Investigation (SBI) and are prosecuted by a county district attorney.

Federal court is reserved for cases that are being prosecuted by the United States government. This court deals with laws set in place by the United States government and it’s legislature. These crimes are investigated or charged by the Federal Bureau of Investigation (FBI) or the Drug Enforcement Agency (DEA). The US Attorney is responsible for prosecuting federal crimes. It is important to note that federal crimes are usually much more serious than state crimes because the penalties in the federal system are significantly higher than those at the state level. It is for this reason that you should seek out a criminal lawyer that specifically has experience in federal courts if you’ve been charged with a federal crime.

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34. How long will it take to resolve my case?

Whenever someone is charged with a crime, they are anxious to have the process over with. Unfortunately, cases in North Carolina usually take at least a few months to resolve and can sometimes take years. North Carolina does not specifically have a speedy trial statute and the district attorney controls the court calendar (which many say is unfair). As such, much of the determination of how long your case will take will depend on the district attorney’s schedule.

In general, if you are enrolling in a misdemeanor first offender’s program that is not drug related, it will take 6-7 months to resolve your case. Felony first offender cases and most drug diversion cases will take 12-13 months to resolve. Trials take on average 7-12 months to be scheduled, but could take much longer.

Our typical advice to clients is that negotiating the court system is a marathon, not a sprint, and better results are often achieved with patience and time.

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35. Will my case go to trial?

That depends on two primary factors: the facts of your case and the decision that you make in consultation with your attorney.

If the facts that the state has against you are very strong and your defense is weak, a criminal defense attorney may negotiate with the district attorney for a favorable plea. Pleas are often negotiated if there is a significant amount of risk involved in going to trial and being found guilty, meaning that the penalties outweigh the risk.

If the facts of your case are very strong and you and your attorney feel that the strength of the facts outweigh the weaknesses and risk, then a decision may be made to go to trial to have a judge or jury decide a verdict.

It is important to recognize that the facts of a case are evaluated against the law and how judges and juries have previously interpreted the law. Many people charged with crimes want to argue their charges based on what they think is right or wrong, or what they think is reasonable. But the court system is often not fair or reasonable, which is why it is critically important to have an experienced criminal defense lawyer on your side to help you evaluate strengths and weaknesses, opportunities and risks. The goal of any good attorney is to get you the best result and to minimize the penalties to the greatest extent possible.

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36. Should I tell my attorney everything? Including if I am guilty?

It is important to always tell the truth to your criminal defense attorney, and to tell him or her EVERYTHING. If you don’t do this, it limits a criminal lawyer’s ability to effectively defend you. Some people think if they tell their criminal lawyer that’s they’re guilty or share incriminating information, that the attorney will judge them or won’t represent them as effectively or as vigorously. A criminal lawyer’s job is to fight as vigorously as possible for your rights, regardless of your guilt or innocence. The government has a responsibility to prove their case beyond a reasonable doubt, and a defense attorney is there to make sure they meet that standard. If that standard is not met, you should be found not guilty.

Keep in mind that all conversations you have with an attorney are confidential and information you share with your attorney can only be shared with someone else with your consent. Just because you may have committed a crime does not mean that you are automatically guilty. You have rights that need to be defended.

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37. The person that called the police doesn’t want to press charges or prosecute – does that mean this will all be dismissed?

If you've already been cited or arrested, and you have a court date, then you have already been charged and that cannot be undone. Once you are charged, it is up to the district attorney to decide if the charges should be dropped or the case will proceed. A victim telling the district attorney that they do not want the case to proceed may have an impact on the DA's decision, but in the end, the DA decides and not the victim.

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38. Should I just plead guilty?

It is rarely recommended to plead guilty on the first court date. Better advice would be to get the discovery, or evidence, in your case, and evaluate that evidence to determine the strength or weakness of the case. At that point, a decision can be made as to whether you should take your case to trial or if you should accept a plea. If accepting a plea, you should do this with a criminal defense attorney to make sure you are getting the best plea deal possible. Often times, the first plea offered by a district attorney is not the best deal you can get, so you need a good criminal lawyer to negotiate strongly with the DA to get you the best possible result.

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39. In a DWI case, should I just plead guilty?

North Carolina is one of the harshest states in the country in dealing with DWI’s. The legislature has passed extensive laws outlining mandatory minimum sentences in DWI cases. Some people think that DWI’s aren’t serious, but a guilty verdict or plea can have a significant impact on your life and will show as a conviction of a criminal charge on your background check. This means that you could have difficulty getting into college or getting a job with a conviction on your record.

In Wake County, DWI’s are rarely dismissed and only under extreme circumstances. Wake County district attorneys also do not offer plea deals for lesser charges in most situations. If you’ve been charged with a DWI, you are either going to be exonerated or convicted of a DWI and virtually nothing else. As hard as this line is, any plea deals offered by the district attorney in Wake County are usually only to the worst case scenario that you could achieve in a trial setting. This means that there is usually little to no benefit to accepting a plea, because you usually can’t do any worse at trial. In most cases, you might as well try your hand at trial, because you can only do better in trial than any plea that the DA might offer.

Given this hard line, you should have a criminal defense attorney evaluate your case to determine the best way to resolve it.

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40. Am I going to jail or prison? How can I avoid jail time?

If you’ve been convicted of a crime, it does not automatically mean that you are going to jail, even if you’ve been convicted of a felony. Whether or not you go to jail depends on many factors:

  • The crime you’ve been charged with
  • The crime you are actually convicted of
  • The sentencing ranges defined for the crime you’re convicted of
  • Your past criminal record, if you have one at all

Because there are so many factors, there are often circumstances where even if you’re found guilty of a crime or accept a plea, that jail time can sometimes be avoided. A criminal defense attorney will understand how to manage these different factors to get you the best result possible and do whatever they can to avoid you serving jail time.

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41. What is the difference between jail and prison?

People often use the terms jail and prison interchangeably, but they are different entities. Jail is where people are held when they’ve been charged with a crime and haven’t bonded out and their case hasn’t been resolved. These are essentially temporary holding facilities.

In cases where an individual has been convicted but has a relatively short “active” sentence where they are to be incarcerated as part of their punishment, these short sentences are also often served in a jail.

Prison is a long term incarceration facility. Once an individual is convicted of a crime, if the punishment includes any extended active sentence, that sentence will be served in a prison facility. Sometimes, if an inmate has a medical issue, they may be sent to a prison for treatment, even if they are eligible to be held in a jail, because prisons generally have better equipped medical facilities.

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42. I was found guilty in district court - can I appeal?

Yes. Under the North Carolina constitution, everyone charged with a crime is entitled to a trial by a jury of their peers. Cases resolved in district court by a bench trial, or a trial presided over and decided by a single judge, are eligible to be appealed to superior court to be heard and decided by a jury of twelve individuals. It is critical to note that there is a very narrow 10 day window from conviction date to appeal a case to superior court if you are found guilty in district court. Once you are outside of this window, you have lost your right to appeal to superior court.

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43. I accepted a plea deal but I’m having second thoughts – can anything be done?

It is very difficult to appeal a case or change an outcome once a plea deal has been accepted and entered. This is because as part of the plea process, you sign a very specific form informing you of your choice, the consequences, and the fact that you are entering the plea by your own choice. A judge went through that form, called a plea transcript, and you reiterated in front of the judge that this is your intent. Once this is done, it’s difficult to change your mind.

A plea withdrawal or appeal would be heard in the Court of Appeals and is unlikely to move forward unless there are extreme circumstances supporting the withdrawal or appeal, such as you being coerced into accepting the plea against your will.

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44. What’s the difference between a dismissal or not guilty verdict and an expungement?

A dismissal means that charges against you have been dropped. A not guilty verdict means that in a trial setting, it was determined that the state did not prove your guilt beyond a reasonable doubt, therefore you were found not guilty. If someone were to run a background check, while your criminal record would show that the charges were dismissed or you were found not guilty, the fact that you were charged or arrested for a crime will still show up on a criminal background check.

The primary way to remove the record of an arrest or citation from a criminal background check is to file for, and be granted, an expungement. This essentially seals your criminal record so that the charges are not visible to most entities.

In North Carolina, you are entitled to one expungement over the age of 18 in your lifetime. Generally, they are reserved for first time offenders that were found not guilty or had their charges dismissed. There are other provisions by which certain non-violent felony and misdemeanor convictions can be expunged 15 years from date of completion of sentence.

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45. How can I clear something off of my criminal record?

There are very specific provisions for how you can remove something from your criminal record, sometimes called having it sealed. These provisions are extensive, but generally, first time offenders that have been found not guilty or had their charges dismissed are eligible to have their record cleared, or expunged. A new provision in the expungement law in 2012 now allows first offenders convicted of a non-violent felony or misdemeanor to have their record expunged after 15 years from completion of sentence have passed.

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46. Can a criminal defense lawyer guarantee a result?

A criminal lawyer cannot guarantee a result. To do so is unethical and is against North Carolina Bar rules. This is because a criminal attorney cannot control the outcome of any case. Only a judge or jury can do that. The only thing a criminal defense attorney can guarantee is that they’ll work hard to fight to defend your rights. If you encounter an attorney that makes promises or guarantees a specific outcome to your case, run the other way. It’s the first red flag about the ethics of that attorney and you are likely to be disappointed.

An ethical criminal lawyer will outline best case scenario, worst case scenario, and likely case scenario based on the specific facts of your situation.  You want an attorney that isn’t afraid to tell you the reality of your circumstance and won’t sugar coat your situation. Your expectations should be set reasonably so that you aren’t angry or disappointed if hyped expectations aren’t met and so that you can appropriately prepare yourself for a likely outcome.

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47. How do criminal lawyers price their services?

Most criminal attorneys use a flat fee structure for most of their services. This means that a criminal lawyer identifies what an hour of their time is worth and they understand how many hours on average it takes to resolve each type of case. The lawyer will then take the hourly fee and the number of hours needed to calculate a flat fee for each type of case.

Flat fee billing is most commonly used for criminal cases so that clients are surprised with a big bill at the end of a case because it took more of the lawyer’s time than originally expected.

For example an attorney may decide that the average DWI will take 10 hours to resolve and his hourly rate is $250, so he will charge $2500 flat fee for DWI representation. Your case might be a simple one and only takes five hours to resolve, so the attorney has made a profit. If it’s a typical case, the attorney breaks even. However, if it is a complicated case and it takes 20 hours to resolve, then the attorney is potentially losing money because it takes away time that could be spent on other cases.

Most people aren’t prepared financially for having to pay for a criminal attorney (who is?), but what would be worse is paying $2500, finding out your case is more complicated than originally thought, and then getting another $2500 bill? Rather than cause this issue, most criminal attorneys choose to quote their prices in flat rates.

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48. Do you accept payment plans?

Yes. Most people aren’t expecting to be charged with a crime and therefore aren’t financially prepared to shell out money for a criminal attorney. Whether the attorney’s fee is $500 or $50,000, it’s never something people are prepared for. Therefore, we offer payment plans so that people aren’t faced with navigating the court system on their own. If you can afford an attorney, you should hire one. A payment plan makes it easier for people to be able to do that. Otherwise, most people would not be in a financial situation to be able to afford to hire an effective criminal defense attorney.

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