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 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/criminal-defense Felony Larceny by Removing Anti-Shoplifting Device Originally Posted by Sean Cecil Feb 12, 2016 (0 Comments) As I am still fairly new to the North Carolina Bar and the practice of criminal defense here in NC, I was surprised to recently be in a consultation with an individual whose petty shoplifting allegation was charged as a felony because of the additional allegation that he had removed a security device.  Shoplifting in North Carolina can be charged as a felony if the value of the goods stolen exceeds $1,000.00. It can also be a felony in some other circumstances, including if the person has four or more prior convictions for larceny.  Under North Carolina General Statute Sect. 14-72.11(2), a person is guilty of a Class H felony if the person commits larceny against a merchant "by removing, destroying, or deactivating a component of an antishoplifting or inventory control device  to prevent the activation of a...

https://edelsteinpayne.com 4th Circuit Establishes Bright Line for when Tazer Use is Reasonable Originally Posted by Sean Cecil Jan 20, 2016 (0 Comments) The Fourth Circuit Court of Appeals has made an important ruling regarding use of force, ruling that the use of a Tazer is only lawful when the person tazed poses "an immediate safety risk." Unfortunately for the plaintiff in the case, mentally-ill Ronald Armstrong, he died during the encounter that led to the lawsuit, and the court ruled that the officers who tazed him five times to get him to let go of a stop sign were immune because the law regarding use of tazers was not clearly established at the time. Fortunately, for the rest of us, it is now clearly established that law enforcement officers may not taze people absent an immediate safety risk. Absent such a risk, an officer using a tazer is using excessive force in violation of an individual's civil rights and may be liable.  The case,  The Est...

www.edelsteinpayne.com/criminal-defense North Carolina Criminal Law: Two Marijuana-related Convictions Reversed by Court of Appeals Originally Posted by Sean Cecil Jan 20, 2016 (0 Comments) Criminal convictions make for difficult appeals. Whereas at trial a criminal defendant is supposed to receive the benefit of the doubt, after conviction many of those presumptions evaporate. Drug conviction appeals typically focus on 4th Amendment privacy protections, challenging convictions that were based on evidence the defendant unsuccessfully moved to suppressed because it was discovered by law enforcement only through an unconstitutional intrusion. Criminal appeals challenging the sufficiency of evidence used to convict are even more difficult- basically asking a court to overrule a finding of guilt by the jury by ruling that the evidence presented at trial was not enough to support the conviction, even when viewed in the light most favorable to the state.  This week th...