Missed Court Dates – A “No Show” is a “No-No”

Not showing up to court on your assigned court date comes with multiple consequences that best should be avoided. First, a person will be “Called and Failed” (C&F) indicating you did not come to court and a “Failure to Appear” (FTA) will be entered into the court computer system by the clerk. Additionally, an FTA will come with it’s own fine of $200.00 in addition to any other fines you may have under the original charge.

For motor vehicle violations, the FTA will be transmitted to the North Carolina DMV on the 20th day following your missed court date. At that point, the DMV will send a notice to you indicating your license will be suspended 60 days after the date of the letter unless the FTA is cleared up. If caught driving during the period of suspension, you will likely be charged with Driving While License Revoked (DWLR) which carries its own consequences (see our blog on DWLR).

Domestic Violence Cases in North Carolina

Domestic violence cases require special handling in North Carolina. In Wake County, for instance, Domestic Violence cases (which include all cases of violence involving people who have or are in intimate relationships) are handled in a special courtroom called 4A.

This courtroom is paid for by special funding from the federal government.

Given understandable concern, in particular, about the safety of women (wives, girlfriends, ex-girlfriends) and about children of couples, the courtroom treats suspected violence by men against women very seriously. While deferral programs are sometimes offered to defendants, they require an attorney who understands how to best position a client so that a deferral might be offered.

A deferral program might include a requirement that the defendant complete substance abuse education, or complete anger management programs. If the children are thought to be in danger, a deferral program might require that the man complete a program called SafeChild or its equivalent.

If a deferral program is offered, the person can usually expect a dismissal of the charges after a year’s time, provided the person stays out of trouble and completes the required elements of the deferral program.

New Years Laws in North Carolina and Beyond

New Years brings with it celebration of a New Year, and with it new laws. In North Carolina, new laws usually go into effect in the beginning of December. This past December, for instance, the state enacted harsher punishments for animal cruelty. The law enhanced the felony punishment from a Class I to a Class H felony, which means that someone with no prior record could be eligible for a jail term if convicted of the offense.

While North Carolina cracked down on texting last year (in December 2009), other states have gotten in on the act, passing laws that make it a traffic offense or even misdemeanor for texting while driving. The changes come in Kentucky and Delaware, among others.

Other states have enacted laws that have made criminal laws somewhat more lenient. For instance, California has changed the law with regard to possession less than a half ounce of marijuana will no longer be a criminal offense, but will be a like a traffic infraction in that the person will have a fine of about $100. In North Carolina, possession of marijuana less than a half ounce is punishable as a Class 3 misdemeanor.

It’s also important to keep in mind that – as is true of the whole holiday period – North Carolina in general and Raleigh and Wake County in particular crack down on drunk driving. I have had multiple folks contact me since Thanksgiving regarding drunk driving or driving while impaired (DWI) arrests in Raleigh, Apex, Cary and other parts of Wake County. If you’d like to talk to a Raleigh criminal lawyer or Raleigh DWI lawyer regarding a drunk driving stop or a DWI or DUI checkpoint, call me at [#phone#].

What is District Court in North Carolina?

North Carolina has a unified court system, organized by county. Each county has a court in its county seat (although Wake County also operates a satellite court in Wendell on Fridays where misdemeanors are handled for eastern Wake communities.)

North Carolina’s general court of justice is divided into two divisions, the lower District Court Division, and a Superior Court Division. All misdemeanors and most felonies, although not all felonies, start out in District Court. Most misdemeanors, and many felonies, end their lives in District Court.

Misdemeanors can reach the trial stage in District Court, where the trial will be heard by a single judge. That judge will render a verdict, which can be guilty or not guilty. If the person has been found not guilty, then the case ends, and there is no further prosecution (although the prosecutor can appeal certain rulings that may have led to a dismissal).

Many misdemeanors never reach the trial stage. They are settled by either a plea, a deferral, a diversion, or a first offenders program. In these cases, the prosecutor agrees to either reduce punishment or dismiss charges entirely provided that the defendant does something, such as community service, to justify the dismissal or reduction in punishment.

For those misdemeanors that reach the trial stage or plea stage, the case may be appealed by the defendant, if he or she loses. If the case is appealed to Superior Court, it is as if the District Court trial never happened. This is called a “de novo” appeal. The reason that any criminal case in district court may be appealed is because where someone’s liberty is at stake, that person has a right to a jury trial.

The District Court, therefore, serves as a filtering court, to filter out the cases that should be resolved with minimal review by a District Court judge. As such, you’d hope that the District Court judges would render decisions consistent with what a Superior Court jury would find, but this isn’t always the case. District Court conviction rates are generally higher than the result from a jury trial.

This is sort of absurd, because it only encourages defendants and their attorneys to appeal cases, which is an incredibly bad use of judicial resources. I will generally advise, where appropriate, that my clients appeal district court cases where I think they might find relief in front of a jury.

While all misdemeanors are handled in District Court, no felonies are tried in District Court. Felonies must be tried in front of a jury, and so the only way to resolve a felony in District Court is through a plea, a diversion or deferral program, a first offenders program, or a dismissal of the charge.

Stages of a North Carolina Criminal Case

This video is a pretty good description of how a North Carolina criminal case is handled:

Every case is different, so it’s important to note that not every case is handled the same way. In addition, North Carolina, unlike the federal system, has two trial divisions: District Court and Superior Court.

All misdemeanors and most felonies start out in District Court. Most misdemeanors and a large number of felonies are resolved in District Court.

If you are convicted of a misdemeanor in District Court, you have the option to appeal that conviction within 10 days of the judgment to Superior Court for a new trial in front of a jury.

Felonies are only heard in Superior Court, but many felonies are resolved by dismissal, diversion, or plea in District Court in North Carolina.

What is Possession of Drug Paraphernalia

Normally if someone is picked up for a misdemeanor drug charge, he is charged with two crimes: simple possession and possession of drug paraphernalia. The paraphernalia charge is the more serious of the two charges. Misdemeanor possession of marijuana is a class 3 misdemeanor.

Misdemeanor possession of drug paraphernalia is a Class 1 misdemeanor in North Carolina. See NCGS 90-113.22. It is illegal to possess paraphernalia that enables the following: planting marijuana, propagating marijuana, growing marijuana, harvesting marijuana, packing marijuana, storing marijuana, concealing marijuana, or ingesting marijuana.

Since possession of drug paraphernalia (meth, weed, cocaine, crack, heroin, pot) is a Class 1 misdemeanor, it is punishable by up to 120 days in incarceration, depending on someone’s prior record level.

As defined in the statute NCGS 90-113.21, paraphernalia is anything that is used for using the drug, selling the drug, transporting the drug, or hiding the drug can count as drug paraphernalia. Looking at these categories, pipes, bongs, gravity bongs, hookahs, bowls, and other items such as joint papers, unrolled cigars, unrolled black and milds, can all constitute drug paraphernalia. Paraphernalia for selling and storing marijuana can include laundry bins, storage sheds, and plastic baggies. Scales and other items count as drug paraphernalia in terms of selling and trafficking marijuana.

Sometimes when someone is arrested for simple possession of marijuana or simple marijuana possession, the police will charge the person with possession of drug paraphernalia just for the little bag that the marijuana was held in.

North Carolina Criminal Law: Felonies vs. Misdemeanors

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

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

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

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

Here’s the statute:

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

Harassing Phone Calls – North Carolina

If you’ve been accused of making Harassing Phone Calls in Cary, Raleigh, or Apex, NC or any other part of the state of North Carolina, here is some information about the charge:

North Carolina makes it a crime for any person:

  1. To use in telephonic communications any words or language of a profane, vulgar, lewd, lascivious or indecent character, nature or connotation;
  • To use in telephonic communications any words or language threatening to inflict bodily harm to any person or to that person’s child, sibling, spouse, or dependent or physical injury to the property of any person, or for the purpose of extorting money or other things of value from any person;
  • To telephone another repeatedly, whether or not conversation ensues, for the purpose of abusing, annoying, threatening, terrifying, harassing or embarrassing any person at the called number;
  • To make a telephone call and fail to hang up or disengage the connection with the intent to disrupt the service of another;
  • To telephone another and to knowingly make any false statement concerning death, injury, illness, disfigurement, indecent conduct or criminal conduct of the person telephoned or of any member of his family or household with the intent to abuse, annoy, threaten, terrify, harass, or embarrass;
  • To knowingly permit any telephone under his control to be used for any purpose prohibited by this section.See NCGS 14-196.Note that the United States Supreme Court has struck down the ban on “indecent” language in the statute as unconstitutional. However, the constitutionality of subsection (3) has been upheld in State v. Camp, 59 NCApp 38 (1982).
    Note also that the victim of harassing phone calls may be an organization. In State v. Camp, 59 NCApp 38 (1982), the victim was a sheriff’s office whom the defendant was calling.
    A victim (or a defendant, seeking to defend himself) may use a recording of the phone call to prove it was or was not harassing. North Carolina is a one-party state, meaning that so long as one party to the call is aware that the phone call is being recorded and the call is being made to another party in North Carolina, the recording is legal. Other states are two-party states, which require that both parties be informed that the call is being recorded. If a caller calls from a one-party state to a two-party state, federal law generally requires both parties to be informed of the tape.
    Note finally that calls made by a computer modem or fax machine may also constitute harassing phone calls under NCGS 14-196(b).
    Harassing Phone Calls is punishable as a Class 2 Misdemeanor in North Carolina.
    Key cases:

    • State v. Camp, 59 NCApp 38 (1982) (upholding constitutionality, and holding that the victim can be an organization or agency, such as a sheriff’s office receiving phone calls)
    • State v. Coleman, 270 NC 357 (1967) (recorded calls can be introduced as evidence of harassment)

An Introduction to Assaults in North Carolina

North Carolina has dozens of different kinds of assaults. Assaults are crimes that involve either violence or the threat of violence that case injury or intend to cause injury to a victim. Even if no touching occurs – the attacker misses, or the attacker stops short of hitting the victim – an assault may have occurred if the victim was placed in “imminent apprehension” (fear) that the he or she was going to be hurt.

I go into more detail about both simple assaults and serious, felony assaults here. If you’ve been accused of an assault in Wake County, even if it’s a misdemeanor assault, make sure you get a criminal lawyer to represent you. Even a misdemeanor conviction for assault  can have serious consequences, especially when it comes to employment.

What is Wake County’s Disposition Court?

Wake County’s Disposition Court in room 1A of the Wake County Courthouse (316 S. Fayetteville St., Raleigh, NC) is a special courtroom set up in the mid-1990s to handle minor traffic violations.

Since Raleigh, Cary, Apex, Fuquay Varina, and all the other communities in Wake County have grown so much in the last 20 years, and police issue so many minor traffic violations, the court established a special courtroom where things could be handled more informally, and where drivers could argue their cases.

If you have a ticket that you need to pay (and do not wish to challenge) you can mail a certified check or money order in the total amount listed on the ticket to the Clerk of the Superior Court at:

Clerk of Superior Court
ATTN: Criminal Division – Traffic
PO Box 351
Raleigh NC 27602-0351

Make sure you indicate on the check that the date you received the traffic ticket and the traffic ticket number so that your payment is properly recorded.

If you don’t pay before the court date, or if you wish to challenge the ticket because you think you did nothing wrong, you can call The Chetson Firm at (919) 352-9411 or email at info@chetson.com for some free advice, or you can challenge the ticket on your own by showing up and court and contesting the ticket.

For more on the Disposition Court’s history, visit Wake County’s website.

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