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A “Drink or Two” Could Mean Jail Time in North Carolina

We are all aware that drinking and driving is wrong. No one should get behind the wheel of a car after a night of drinking. Unfortunately, some may decide they are still able to drive after two or three glasses of wine or a shot or two of liquor and that’s the big problem. We wrongly assume that “just a couple of glasses” in no way affects the ability to drive.

According to the Centers for Disease Control and Prevention (CDC), over 300,000 incidents of drinking and driving occur each day. And an arrest doesn’t typically mark the first time a person drives under the influence: The average drunk driver does so over 80 times before getting caught.

You’ve Made the Wrong Decision

You grab your keys and leave the bar late on a Saturday night. Just a few miles down the road you hear a siren and see the flashing lights. The officer smells alcohol so he requests you step outside the vehicle and submit to a field sobriety test. You fail the test and are then required to take a blood alcohol content (BAC) test. You blow a 1.2% and are immediately handcuffed, charged with Driving While Intoxicated (DWI), and now facing serious legal repercussions.

What are your next steps?

You first need to find experienced legal counsel. North Carolina uses a very unique sentencing system for punishing driving while impaired convictions that is much different than what is used for any other type of crime. While it’s generally true that you could expect a lesser punishment for a DWI first offense in the state, this is not always the case.

North Carolina uses a system based on six levels of possible punishment. Within each level is a range of punishments the court can impose. If you are convicted of DWI, the first determination made by the court is what level to apply. The law has a list of sentencing factors that might be present in a case and must be considered. “Mitigating factors” can help reduce punishment, but “aggravating factors” can make things worse and “grossly aggravating factors” can be devastating to your case.

Court Will Decide Your “Level”

North Carolina DWI penalties are based on your “level,” and your judge uses mitigating factors to determine that level. Factors include your BAC, prescription medications, current driving record, and other aspects of your situation and overall driving history.

As listed on the North Carolina Department of Public Safety’s website, there are five levels of misdemeanor DWI, with Level I being the most serious and Level V the least.

Level V

Punishable by a fine up to $200 and a minimum jail sentence of 24 hours and a maximum of 60 days. A judge can suspend the sentence, but only the after the driver spends 24 hours in jail, performs 24 hours of community service, or avoids operating a vehicle for 30 days.

Level IV

Punishable by a fine up to $500 and a minimum jail sentence of 48 hours and a maximum of 120 days. A judge can suspend the sentence, but only after the driver spends 48 hours in jail, performs 48 hours of community service, or avoids operating a vehicle for 60 days.

Level III

Punishable by a fine up to $1,000 and a minimum jail sentence of 72 hours and a maximum of six months. A judge can suspend the sentence only upon completion of at least 72 hours in jail, performing 72 hours of community service, or not operating a vehicle for 90 days.

Level II

Punishable by a fine up to $2,000 and a minimum jail sentence of seven days and a maximum of one year. A judge cannot suspend the minimum sentence.

Level I

Punishable by a fine up to $4,000 and a minimum jail sentence of 30 days and a maximum of two years. A judge cannot suspend the minimum sentence.

Level I and II drivers are repeat offenders, those with revoked licenses, impaired drivers, impaired drivers transporting young children, and impaired drivers who hurt someone in a crash. Impaired drivers must complete a substance abuse assessment and comply with any recommended treatment as a condition for having their license restored at the end of the revocation period.

When DWI Becomes a Felony

For Habitual DWI offenders, drivers who have had three prior DWI convictions within the past seven years, DWI becomes a more severe felony. But, more importantly, the Habitual DWI statute now mandates a minimum active jail term of one year—a sentence that cannot be suspended. Offenders must also go through a substance abuse program while in jail or as a condition of parole.

The Governor’s DWI Initiative takes away from repeat DWI offenders the means to drive while impaired; namely, their cars. Under the new provision, a law enforcement officer can seize a driver’s car if the officer charges that person with DWI and that person was driving while his or her license was revoked due to a previous impaired driving offense. The seizure happens at the time of the arrest and not after the case has come to trial.

If a court convicts the driver of DWI and of committing the offense while driving with a revoked license due to a previous impaired driving offense, the judge will order the vehicle forfeited. The school board can then sell the vehicle and keep the proceeds, sharing the money with any other school systems in the county, or keep the car for its own use. The law does allow vehicle owners to get their cars back if they were not the driver convicted of DWI, but only if the court is satisfied they are an innocent party.

Call Your Attorney Immediately

As you can see, dealing with a DWI charge is complex and can be confusing to most. All DWI violators must appear before a judge—it’s crucial you have a knowledgeable and experienced attorney by your side to help you navigate the process. He or she can help you get as close to the minimum penalties as possible and aid in the negotiation of limited driving privileges and penalty alternatives like community service.

Generally, the court and Department of Motor Vehicles issue limited driving privileges at their own discretion, which means you don’t technically apply for a restricted license, but you may request restricted privileges.

Your attorney might find that you’re immediately eligible, or discover how long into your suspension or revocation you must get before the court will issue limited driving privileges.

Prevention is the Best Course
Obviously, your best option is to not remotely consider operating a vehicle after consuming any amount of alcohol. So, how can you prevent drinking and driving?

  • Always choose a designated driver every time you go out.
  • If you go out alone, do not drink alcohol. Order a soft drink or water.
  • If you’ve been drinking, call a taxi or car-sharing service for a ride.
  • Never get in a car with someone who has been drinking.

Think of it this way: Is drinking and driving more important than your legal status or life? Take a cab, protect yourself and others on the roadways, and don’t become another drinking and driving statistic. Operating a motor vehicle while sober can be difficult enough; adding alcohol or other intoxicants into the mix is putting your life and the lives of others on the roadways at risk. Make the right choice and put your keys down.

For more information or to schedule a consultation, please contact GreeneWilson Attorneys at Law by calling (252) 634-9400 or visiting www.greenewilson.com.

(Sources: The Centers for Disease Control and Prevention, North Carolina Department of Public Safety; State Farm Mutual Automobile Insurance Company; National Public Radio East; National Highway Traffic Safety Administration; QuitAlcohol.com; DMV.org.)

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Summer Driving: That’s the Ticket

Speeding is the most common type of moving violation—66 percent of all tickets issued in the U.S. are for exceeding posted speed limits.

Summertime is synonymous with travel. The season often brings vacations, road trips, and other fun adventures. During these months, traffic increases significantly on North Carolina’s highways and roadways and it’s important for drivers to be more vigilant than ever when operating their vehicles.

A telephone survey performed by AAA found that 80 percent of families polled are planning a road trip this summer, which is up 10 percent from last year. More people on the road means more chances for accidents, mechanical troubles, and—most of all—speeding tickets. According to a survey conducted in 2015 by Princeton Survey Research Associates International, speeding is by far the most common type of moving violation—66 percent of all tickets issued were for exceeding highway speed limits. Interestingly, more women (69 percent) get speeding tickets than men (64 percent) and those ages 50 to 64 (70 percent) get more speeding tickets than any other age bracket. So much for pinning reckless driving solely on teenagers!

A speeding ticket may seem like a minor issue, but it can be costly (in more ways than one) to fight or pay for a ticket. In cases where you’re facing increased insurance premiums you’ll likely need the assistance of an experienced attorney—he or she can offer the best legal advice when it comes to dismissing your ticket. And, if the citation cannot be dismissed, a lawyer can help you reach a plea bargain agreement for lesser charges.
The Rule of Law

In our state it’s a violation to drive at a speed that “exceeds what a reasonably prudent person would drive at given the current situation.” In addition, North Carolina has an “absolute” speed limit law, which means that you could be guilty of speeding by going even one mile over the posted speed limit. You could face a fine of between $100 and $1,000, jail time for a maximum of 60 days and have your driver’s license suspended for up to one year. Speeding can also add three points on your driving record!

The fines and costs associated with traffic tickets vary depending on what you’re cited for. But moving violations all have a set price that must be paid if you admit guilt or are found guilty of committing the offense. You might also face more than just state traffic ticket fines. Additional costs include court costs if you decide to challenge your ticket in court. These fees can definitely add up.

The Fewer the Points, the Better

The penalties for traffic tickets are uniform throughout the state. One example of this is the points that are added to a driver’s record for a moving violation. A set amount of points is assigned to each illegal maneuver and a driver will incur these points if he or she is convicted of a violation.

If you’re unfamiliar with the North Carolina point system, the Division of Motor Vehicles (DMV) keeps track of drivers through their driving record, which lists any traffic citations a driver has received as well as accidents in which a driver has been involved. Traffic violation convictions add points to your driving record and if you accumulate too many of these points during a certain amount of time, you could face additional consequences. For example, accruing 12 points within three years could lead to a suspended license. Hiring an experienced attorney to help you understand and fight the charges levied against you can prevent such consequences.

So Why Hire an Attorney?

Most attorneys will tell you it’s not in your best interest to simply pay a traffic ticket given the potential harsh consequences, both in terms of the penalty you face for this offense and the long-term consequences on your driving privileges, your criminal record, and your insurance rates. You should at least first consult with an experienced traffic law attorney before taking any action.

Jon Welborn, a North Carolina trial attorney, suggests employing professional help for traffic court especially if you:

  • Are unable to appear in court;
  • Have points on your license that will increase your insurance;
  • May lose your license because of a moving violation conviction;
  • Are not sure if you should plead or not;
  • Have been charged with DUI/DWI impaired driving, reckless driving or speeding in excess of 90 miles per hour, hit and run, or other habitual traffic offenses;
  • Have outstanding warrants for your arrest; or
  • Do not want to mail to the court payments for the cost of court.

If you decide to accept a plea an attorney can definitely ensure you get the best reduction possible to minimize the chances that your insurance premium will be increased.

The bottom line? At least speak to an attorney to be aware of the many options you have and the possible outcomes of the decisions you make concerning a speeding ticket.

Best Bets for Avoiding a Ticket

Karla Browsher of Money Talks News suggests the following tips to help you avoid a speeding ticket in the first place:

Be aware of your surroundings: Driver advocate Richard Diamond tells Popular Mechanics magazine that drivers must have situational awareness. For example, “if traffic slows, there’s a reason,” he says.

Avoid the fast lane: Not only does driving in the left-most lane risk giving an officer the impression you meant to go fast, it also makes it easier for officers hiding along the median to catch you. That’s because it’s the lane closest to them.

Watch out for hiding spots: Be aware of locations where officers can hide their cars or motorcycles from drivers, but remain close enough to the roadway to use a radar gun and quickly hop back on the road to catch a speeder. On highways, such locations include median cutouts, overpasses, and bends in the roadway wide enough to hide what lies ahead.

Mike Brucks, a former traffic cop in El Paso, Texas, tells Popular Mechanics that when he was on duty on his motorcycle, his favorite hiding spot was the freeway: “That’s where there are more speeders. I’d park under overpasses, on bridges. I needed to be able to start the bike and accelerate to go after someone.”

Wave at hidden police: An unidentified former police officer tells Reader’s Digest if you notice a hidden police vehicle while already driving a little too fast, you should wave at the officer as you drop your speed. He will either think you know each other and wave back, or will think you’re acknowledging you were driving too fast and are letting him know you’re slowing down. Either way, you drastically reduce your chance of getting a ticket.

Look innocent: As crazy as it sounds, some officers decide whether to give a ticket or a warning before they approach a driver. It helps to maintain your car exterior in a way that conveys you’re a responsible, law-abiding citizen rather than a frequent speeder who hates police and is hiding something. This includes keeping your car clean and uncluttered—do not add bumper stickers that might offend cops. Spoilers, tinted windows, and neon undercarriage lights also are unlikely to make a favorable impression.

Keep your car in working order: Jon Zimmerman, a traffic attorney in Washington, admits officers are more likely to let a single offense slide by, meaning they’re more likely to pull over a car that is speeding and has a broken headlight or taillight, for example.

Be considerate: If you’re pulled over, be nice. “Fighting with the police officer never increases your chances of leniency. You want him to like you,” says Lifehacker writer Stewart Rutledge, who says he’s kept about 30 speeding tickets off his record. Also keep in mind that pulling people over can be a dangerous task—don’t do anything that might make an officer feel uneasy.

Esurance advises that you turn off your car and turn on your hazards. If it’s dark, flick on a light inside your car. Be sure to roll down your window all the way. Remove your hat and sunglasses while remaining inside the car with your hands visible. Rutledge recommends placing them at “10” and “2” on the steering wheel. Don’t reach for your license, registration, or insurance until asked, as an officer might perceive sudden hand movements as threats.

While following these suggestions doesn’t guarantee you’ll avoid that ticket, it sure won’t hurt to give them a try! Do your best to be safe on the roads this summer—including watching your speed.

Members of the experienced team at GreeneWilson can explain your possible outcomes, investigate your ticket or other offense, and help you avoid the negative consequences you may face. For more information or to schedule a consultation, please contact GreeneWilson Attorneys at Law by calling (252) 634-9400 or visiting www.greenewilson.com.

(Sources: National Highway Traffic Safety Administration; AAA; Money Talks News; Pittsburgh Post-Gazette; Princeton Survey Research Associates International; CNN; Jon Welborn; Popular Mechanics, Reader’s Digest; and eDriving.com.)

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HB 746 One Vote Away from Changing Concealed Carry Laws

The new legislation would make North Carolina one of roughly a dozen states that allow people to carry a concealed handgun without a permit. 

Late last week the North Carolina House of Representatives voted to approve HB 746 which would allow citizens to carry a concealed handgun in certain places without a permit—including legislative buildings. Gun owners will no longer be required to attend an eight-hour training course currently needed for a concealed permit unless they travel to locations where a permit is still law. The bill also seeks to allow those at least 18 years old, and not otherwise prohibited by law, to carry a concealed handgun.

A series of amendments to the bill were proposed by Democrats in the House that addressed proximity to alcohol, the age requirements, and the domestic violence histories of those who can carry a concealed weapon without a permit. Each amendment was either defeated or tabled without debate or consideration.

According to Republican Rep. Chris Millis, sponsor of the bill, it would “expand the opportunities for law-abiding citizens to be able to better protect themselves and their loved ones from harm, according to the liberties afforded by our Constitution.”

Laura Leslie, a reporter with WRAL-TV, writes, “The proposal would allow legislators, legislative employees, and former law enforcement officers to carry weapons at the legislative complex, even on chamber floors, as long as they have a concealed carry permit. However, the public would be banned from carrying weapons at the legislature, as well as on the grounds of the courts, the State Capitol and the governor’s residences.”

The bill still needs Senate approval before it goes to Governor Roy Cooper for his consideration.

What’s the Big Deal?

HB746, does not make a single change to how firearms are purchased in the state—permits are still required for any citizen to purchase a gun. Currently, a second permit is required to be allowed to carry a concealed weapon in the state.

Rep. Millis offered this example: During the summer, someone could be wearing a holster in plain sight and have it be legal, but if that person were to put on a jacket or coat in the winter and that gun is now covered, it would be breaking the law if that individual did not have a permit.

“If someone can legally carry openly…there is no legitimate reason for that person to not be able to carry concealed,” argues another bill sponsor, Rep. Larry Pittman.

Background Check Changes

County sheriffs’ offices currently issue concealed carry permits after conducting a criminal background check which includes a search for any records of mental illness. Many gun rights activists say this process wrongly gives sheriffs the power to deny a citizen of his or her constitutional right to carry a concealed gun.

The North Carolina Association of Police Chiefs (NCACP) came out against the bill, as did some of the state’s most prominent law enforcement officers. “Repeal of the concealed carry permit requirement eliminates a valuable method to identify persons who should not be carrying a firearm, such as the mentally ill, convicted felons, and identified gang members,” NCACP said in a written statement. “The NCACP opposes the repeal of the concealed carry permit system as detrimental to the safety of the public and law enforcement officers.”

The bill adds limits on what can be asked of applicants in cases where a permit might still be required in the future. Sheriffs would no longer be able to deny a pistol permit on grounds of mental disability or mental illness unless the applicant has been declared by a court to be a danger to himself or to others, or unless the applicant has a diagnosed disorder that could make him or her a safety risk.

Training Changes

A huge change coming with HB 746 is that it eliminates the current requirement for state-approved safety courses required by sheriffs’ offices. In fact, the North Carolina Association of Police Chiefs (NCACP) came out against the bill, as did some of the state’s most prominent law enforcement officers.

Joe Killian, an investigative reporter with NC Policy Watch, spoke with both Guilford County Sheriff B.J. Barnes, a Republican, and Rockingham County Sheriff Sam Page and gleaned the following:

“You need that training, as far as how to handle a gun and when to handle a gun—when to pull it, when not to pull it, legal things that you need to know about carrying and pulling it,” warns Barnes. “If you don’t have the requirement for that kind of training, a lot of people are not going to educate themselves. And that’s dangerous.”

“I do think there should be a gun safety class component for anyone who wants to carry, open or concealed,” Page said. “I never want to support bills that would add restrictions on law abiding citizens—I look at the constitutional side of the issue, the right to keep and bear arms. But our law now has that gun safety aspect and I would hope that someone would insert that amendment.”

Barnes is not alone in his opinion. Former police chief and Republican Rep. John Faircloth of Guilford County, voted against HB 746 and confirmed the training aspect is part of his reasoning. He says, “[This legislation] is not going to make a big dent in what might could happen anyway, but it does open up a lot of possibilities that I think we could probably close with a little more work on this bill, particularly in the area of requiring some kind of training.”

A statement from North Carolinians Against Handgun Violence made it clear the organization is also disappointed that concealed weapons carriers would no longer have to undergo training: “Without these classes, the public cannot be certain that a gun owner is knowledgeable of the rules and laws of carrying a hidden, loaded weapon in public.”

Age Limit Changes

Many take issue with the fact that HB 746 would also lower the minimum age for a person to conceal carry from 21 to 18 and apply to individuals who are not otherwise prohibited by law to carry a firearm.

House Minority Leader Darren Jackson doesn’t think it makes sense to let 18-year-olds carry concealed handguns without training. He says his GOP colleagues counter this concern with the fact that the U.S. allows 18-year-olds to serve in the military. While this fact is true, Jackson says he doubts that that such young, new recruits are given a gun on their first day and allowed to walk downtown with it in their pocket.

Sheriff Barnes definitely agrees with Jackson. “There’s nothing magical about the age of 18,” he said. “You don’t all of a sudden become enlightened. Just because you’re 18 doesn’t give you all the answers.”

Modifications Only?

Craig Jarvis, a reporter with the Winston-Salem Journal, adds that Rep. Millis says the bill does not broadly expand where guns can be taken, but simply modifies current law. “It’s a sensible piece of legislation affirming the commitment to liberties afforded” by the constitution, he says.

What are those modifications? Jarvis, writes:

Restaurants, stores, and other private businesses could still prohibit weapons from their premises. Indicted or convicted felons, illegal drug users, the mentally ill or mentally incapacitated, those under domestic violence orders, and others, would be prohibited from carrying handguns.

Firearms could not be taken into establishments or public assemblies where alcohol is sold and consumed; they would be banned from the State Capitol, Executive Mansion, or Western Residence of the governor, courthouses—with exceptions for judges, prosecutors, registrars of deeds, and others—at protests and in the buildings of the General Assembly.

Legislators, legislative employees, and some former law enforcement personnel would be allowed to carry concealed weapons at the Legislative Building and the Legislative Office Building in Raleigh.

Concealed or open-carry firearms would be allowed at state highway rest stops and in state parks.

Laws & Penalties Could Shift

Carrying a concealed weapon without a permit is currently a Class 2 misdemeanor punishable by 30 days to six months in jail and a fine of up to $1,000, or both. A second offense will earn a Class I felony and three to 12 months in jail.

If you are charged today with a Class 1 misdemeanor for violating a property’s gun ban or bringing a gun to a parade, demonstration, courthouse, or state property, you can expect one to 20 days of active, intermediate, or community punishment.

HB 746 would essentially erase such violations and the punishment that comes with it. No matter where you stand on the issue, major changes to the gun laws in North Carolina could be just around the corner. Be sure you keep your eyes on this legislation.

For more information or to schedule a consultation, please contact GreeneWilson Attorneys at Law by calling (252) 634-9400 or visiting www.greenewilson.com.
(Sources: Winston-Salem Journal; WTVD-TV Raleigh-Durham; WRAL-TV Raleigh-Durham-Fayetteville; North Carolina Moms Demand Action; North Carolinians Against Gun Violence; NC Policy Watch; WGHP-TV High Point; and North Carolina Association of Police Chiefs.)

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