NorthCarolinaLaw

www.edelsteinpayne.com Speeding Ticket reduced, Failure to Appear Stricken October 2017 Not something I would normally feel the urge to publicize, but there is a need for lawyers to handle traffic matters and I do that.  I did so yesterday for a woman who had missed her court date, incurring a $250 FTA fine in addition to the penalties of a 78 in a 55 speeding ticket.  She had filed her own motion asking to strike the failure to appear and for a new court date, but the motion was denied. I negotiated a "9 over" speeding violation, and successfully requested that the court  waive or strike the FTA. The result is a good one, because the original ticket would have resulted in a license revocation because it was more than 15 mph over the speed limit that was 55 or greater. So, I handle Wake County traffic matters, ranging from DWI, Driving While License Revoked, Reckless Driving, Speeding to Elude, to simple Speeding Tickets. Give me a call if you w...

www.edelsteinpayne.com Wake County Domestic Violence Case Dismissed September 2017 Domestic Violence (DV) cases are difficult for everyone. Prosecutors often have trouble determining issues such as self-defense, and in the domestic context there is almost always more to the story. I have won acquittals in several jury trials on Domestic Violence allegations, successfully arguing on one occasion that the complaining witness was biased and couldn't keep her story straight, and on another occasion that the arrest was based upon a misunderstanding by the arresting officer. More common than trial wins, though, are cases where the necessary witness/alleged victim for whatever reason decides not to come to court in support of the charges. Without admissible testimony, there is no way for prosecutors to prove any criminal charge- in most cases the only witness besides the alleged victim is the responding officer, who usually did not witness any act of violence. If the...

https://edelsteinpayne.com/criminal-defense Sexual Abuse is, Among Other Things, a Personal Injury Originally Posted by Sean Cecil Nov 27, 2017 The news lately is full of women coming forward to explain that they have been the victim of sexual abuse. Largely involving prominent men in positions of power enabling them to intimidate, coerce, or cover up their actions, these high profile stories have emerged in a variety of contexts often involving entertainment and politics. Some effort has been made, at least in social media, to clarify that these stories are common involving less prominent men as well. They happen in employment. They happen at schools. They happen at churches. At sporting events. And, as detailed in a Buzzfeed investigative report, strip mall massage parlors.  If you have been the victim of a sexual assault, whether in the workplace or elsewhere, you have rights. A sexual (or any other) assault is a form of personal injury, and basical...

https://edelsteinpayne.com/criminal-defense NC Court of Appeals Confirms No Duty to Retreat Prior to Self-Defense Originally Posted by Sean Cecil Jun 07, 2017 (0 Comments) North Carolina law does not require retreat before use of self-defense. "Perfect" self-defense is a defense against criminal charges; "imperfect" may be used as a mitigating factor in sentencing. Perfect self-defense requires all four of the following elements: (1) It appeared to defendant and he believed it to be necessary to use force to save himself from harm;  (2) Defendant's belief was reasonable in that the circumstances as they appeared to him at the time were sufficient to create such a belief in the mind of a person of ordinary firmness; (3) Defendant was not the aggressor in bringing on the affray, i.e., he did not aggressively and willingly enter into the fight without legal excuse or provocation; and (4) Defendant did not use excessive force.  Imperfect sel...

https://edelsteinpayne.com/criminal-defense Obtaining Property by False Pretenses (Originally Posted by Sean Cecil May 09, 2017 : 2 Comments In North Carolina, Obtaining Property by False Pretenses is a felony. If the property obtained has a dollar value of less than $100,000.00, the crime is a relatively low Class 'H' felony. To obtain a conviction for "OPFP" the government must prove, beyond a reasonable doubt, that a defendant is guilty of all the following elements: 1. made a representation about a past or existing fact or a future event 2. that was false and 3. was calculated and intended to deceive, AND 4. the representation did actually deceive another person (this includes associations, governments, corporations, etc) AND 5. the defendant thereby obtained,  or attempted to obtain,  money, goods, property, services... or any other thing of value from that person.  Most of these cases are low-level felonies. Examples I have seen often...

https://edelsteinpayne.com/criminal-defense NC Court of Appeals re-affirms Protection of Privacy in a Home's "Curtilage" and Suppresses Marijuana Originally Posted by Sean Cecil | Apr 19, 2017 The Constitution had a pretty good day at the North Carolina Court of Appeals yesterday. Out of ten criminal decisions issued, four convictions were reversed; two for insufficient evidence, one for a jury instruction that was not supported by evidence during the trial, and one for an unlawful search. Notably, two of the cases involved the issue of "constructive possession", commonly used by the government to get around the pesky little issue of charging someone with a crime when they didn't  actually  possess contraband but were found near it. Actual and constructive possession were defined neatly in  State v. Billinger  (context of illegal possession of a firearm):   A person has actual possession of a firearm if it is on his person, he is aware of its...

https://edelsteinpayne.com/criminal-defense NC Criminal Defense: Wake County Prosecutor Dismisses Over 100 DWIs Because of Lying Deputy Originally Posted by Sean Cecil Mar 31, 2016 (0 Comments) Citing an inability to rely upon the testimony of a former DWI Task Force member, Wake County District Attorney Lorrin Freeman has announced that she is dismissing over 100 pending drunk driving criminal offenses. According to the  Raleigh News & Observer , Freeman took the bold action as a result of District Court Judge Jacqueline Brewer "disqualified" former Wake County Deputy Robert Davis after finding that Davis had lied in at least three cases. Although she may not have any choice if Davis was the only witness in the cases, Freeman deserves respect for taking decisive action. Other prosecutors I have encountered over the years might be tempted to string the cases along in hopes of extracting a plea bargain from defendants who may or may not be aware o...

https://edelsteinpayne.com Revisiting the 4th Circuit's Recent Taser Excessive Force Case Originally Posted by Sean Cecil Mar 23, 2016  (0 Comments) Back in January, I wrote about the 4th Circuit's precedent-setting excessive force case,  Estate of Armstrong v. Village of Pinehurst.  Since that time, I have had a chance to more thoroughly parse the decision issued by Judges , Keenan, Thacker, and Wilkinson(concurring), and decided a more thorough case summary which includes important details is warranted.  The case began as an appeal of the trial court's order granting qualified immunity summary judgment on Plaintiff estate's excessive force claim. Mr. Armstrong was bi-polar and paranoid schizophrenic; during nasty episode his sister convinced him to go to hospital, but he became scared and fled the Emergency Department. The examining doctor deemed Armstrong a danger to himself and issued involuntary commitment (IVC) paper...