Out of State Defendants in North Carolina Criminal Cases

What happens if you’re an out-of-state resident visiting or passing through North Carolina and you get into criminal trouble?

Maybe you’re here to see a concert, and you’re accused of possession of drug paraphernalia, or felony possession with intent to sell a deliver (PWISD) marijuana. Maybe you’re visiting, have a few too many drinks, and you’re stopped for a DWI. The list of possible crimes goes on, but the question becomes: how can you handle your criminal case while returning to your home state?

First, of course, you’ll need to get out of custody. If you’re reading this article, you’ve already done it. But if you’re a family member who has had a late night call and you want to know how to help your son, daughter, husband, wife, or friend, here are some tips.

Speak with a Raleigh criminal lawyer about possible representation. While a criminal lawyer is ethically prohibited from getting involved in the bonding process, a lawyer will be able to make appearances in court to try to reduce the bond (and therefore the cost) of getting your loved one or friend out of jail.

In serious matters, it may be important for the lawyer to meet immediately with the person accused so that an interview can be conducted, or evidence can be preserved. Maybe there are witnesses who need to be identified and located before they too leave the area.

If the person has quickly been released from custody (or was never physically arrested in the first place), a lawyer can help by appearing on the person’s behalf at their First Appearance.

A First Appearance is a mandatory court appearance where the defendant is informed of his rights – right to an attorney, the maximum possible punishment for the charges, and the date of the next court appearance. If a person bonds out, but does not appear at his First Appearance, the person will be Called & Failed, and an order may eventually be issued for his arrest. (Misdemeanors generally do not have First Appearances soon after arrest, but rather people are informed of their rights at the first full court setting of the matter.)

In the case of felonies, the North Carolina General Statutes provide that an attorney may appear on the client’s behalf so that a client need not remain in North Carolina, provided he has executed a Waiver of Appearance and a Waiver of Counsel.

A defendant is generally obligated to appear at all Felony dates, but an attorney may be able to get a client’s presence excused if it’s apparent that the matter will not be resolved on that particular date. During the early stages of a criminal case, there may be a number of court dates where nothing would ordinarily take place.

During this time, the attorney can collect discovery for an out of state client, review that discovery via teleconference or by having the client travel back to North Carolina for an in-person meeting.

In the case of misdemeanors, it may be possible to resolve waiveable offenses (low level misdemeanors and certain traffic offenses) without the defendant being present. A Raleigh criminal lawyer will require that the client complete a notarized Waiver of Appearance, and a full conversation will be had with the Defendant regarding possible outcomes.

DWIs are non-waiveable offenses, and if they are to be tried – meaning if the Defendant wishes to have a trial – the that person will usually have to return to North Carolina unless prior consent can be arranged with the District Attorney and the Judge to excuse the Defendant from returning.

A Defendant must return to North Carolina for a jury trial. Even if a court were to allow a defendant to be excused in a misdemeanor jury trial, it would be extremely prejudicial to the defendant not to return.

In felony cases, presence is mandatory at all dispositions, save dismissals. (Certainly, the state can try a case if the Defendant flees the jurisdiction once the trial has begun.)

However, even though an out-of-state defendant is generally advised to return for the disposition of the case, by hiring a Raleigh criminal lawyer to handle even simple misdemeanors, an out-of-state client can save significant amounts of money in having a lawyer handle the details of the case and, where possible, excusing the client from returning unless something is scheduled to be resolved in the matter.

Damon Chetson

Damon Chetson is a Board Certified Specialist in State and Federal Criminal Law. He represents people charged with serious and minor offenses in Raleigh, Wake County, and the Eastern District of North Carolina. Call (919) 352-9411.