Category Archives: Misdemeanor

Exoneration Statistics To Consider

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Being accused of a crime is difficult, but being convicted and jailed is an entirely different scenario. A false conviction can see an innocent person spend much of their life behind bars for a crime they did not commit.

Improvements in investigative tools such as forensic science and DNA testing have helped wrongly convicted people defend themselves in court and seek exoneration. For those wrongly jailed, many have been able to clear their names after a prison sentence. Many go so far as to plead guilty to a lesser sentence, knowing they were totally innocent.

Some of these individuals have been in jail for many years, without the means to prove that they were tried and convicted improperly. With the help of these improved tools and techniques, and nonprofit organizations like The Innocence Project, people wrongly convicted are now able to seek exoneration.

What Is Exoneration?

To be exonerated is to be cleared of an accusation, either through the presentation of evidence of innocence, a defect in a conviction, or other actions that completely clear an individual of the charges that have been levied.

For instance, if someone is charged in a robbery because of a garment they were wearing, submitting evidence of the person’s whereabouts without the incriminating garment shows that another individual wearing it committed the crime. The evidence of the accuse whereabouts will exonerate him or her of the charges, and will be dismissed.

How Does This Happen?

There are a number of reasons why someone could be wrongfully charged and convicted. The most common are:Exoneration Statistics To Consider

  • Witness identification of perpetrator
  • Zealous police and prosecutors
  • Police misconduct
  • False confessions
  • Perjury
  • Faulty forensic evidence and inadequate testing
  • Racial bias

These cases are being reviewed and reworked by some prosecutor’s offices with Conviction Integrity Units (CIUs), and others are assisted by nonprofit innocence organizations like The Innocence Project and the National Registry of Exonerations, whose work is to free wrongly convicted individuals.

Statistics on DNA Exoneration

Since the introduction of DNA testing for criminal cases in 1989, The National Registry of Exoneration estimates that more than 2,500 individuals have been freed, and more than 22,000 years of life were lost behind bars due to wrongful convictions.

The registry’s report on 2018 reveals the following:

  • CIUs were responsible for 58 exoneration
  • “Professional exonerator,” nongovernmental organizations such as the Innocence Project, were responsible for 86 exoneration
  • CIUs and organizations working together were able to exonerate 45 people in 2018
  • A total of 31 individuals were exonerated in Chicago on drug and weapons charges as a result of an investigation into corrupt police officers led by Sergeant Watts.
  • Illinois had the highest number of exoneration, at 46, due to the Sgt. Watts affair. Texas and New York are tied in second place at 16, Michigan in third place with 9 and California with 6.
  • The DNA exoneration in 2018 totaled 23, about 15% of the overall total, with 60% for murder cases, 7% for sex crimes, one case for attempted robbery, and one case for kidnapping and sexual assault
  • Seventy cases in 2018 were individuals who were wrongly incarcerated and no crime actually occurred. This included one murder case for which the defendant spent 25 years on death row for the murder and assault of a 21-month old girl. The injuries that indicated his guilt were actually unsuccessful medical procedures by emergency room physicians.
  • Texas had 363 exoneration in 2018, the highest rate in the US
  • The bulk of US exoneration in 2018 came from just four counties: Harris County (Texas), Cook County (Illinois) Kings (Brooklyn) and Dallas counties.
  • Nationwide, the city with the second most exoneration per capita from wrongful convictions is New Orleans, Louisiana.The state incarcerates at nearly twice the national average, with many incarcerated who haven’t even been convicted of a crime.

The Most Popular: Drug Charges

Exonerated prisoners are frequently the target of drug charges, particularly for African-American defendants, who are five times as likely to be imprisoned for drug possession as white defendants. Innocent African-Americans are 12 times as likely to be convicted of drug crimes as innocent whites, even though the rate of illegal drug use is about the same for both groups.

In Harris County, Texas, which includes the City of Houston, the crime labs take an extra step of testing drugs that are seized during arrest, even if the accused pleads guilty. In many cases, the substances are found not to be illegal drugs. As a result, 48 of Texas’ 58 exoneration in 2016 were in Harris County.

The CU for the DA’s office began calling for the backlog of drug cases to be cleared in 2014, which prompted crime lab testing of substances taken during the arrests. As a result of the testing, the first 48 defendants were exonerated, and 10 were exonerated in 2017.

Harris County’s African-American community makes up 20% of the population and account for 62% of the exoneration.

Defense or Exoneration? Contact Attorney Dewey P. Brinkley

Dewey P. Brinkley is a former Wake County Assistant District Attorney who can defend you or your loved one against wrongful criminal charges and work for exoneration. Call Mr. Brinkley today at 919-832-0307 or use our contact page to schedule your free consultation.

Is Entering An Unlocked Door Considered Breaking And Entering?

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Most people think of “breaking and entering” as a broken window, a pried-open door, or the kicked-in door characteristic in home invasions. It’s literally using force to break into a home or place of business and called “breaking and entering” for a reason. Generally, you don’t have permission to be on the premises, and you’re there for the sole purpose of committing a crime. Since most people and businesses lock their doors, getting in takes some type of criminal action to overcome the locks.

But what if the door was unlocked?

The Definition Of Breaking & Entering

At one time, the term simply meant that—physically breaking into a home or business using force, even if no crime was committed.Is Entering An Unlocked Door Considered Breaking And Entering?

Today’s charges apply to any unlawful entry into a dwelling anytime, day or night, without permission, and with the intent to commit a crime. Like most states, North Carolina has expanded the definition of “breaking and entering” to include walking into a dwelling with the intent to commit a crime.

This means that even entering through an unlocked door or opening and crawling through a window that’s partially opened is a crime if the individual didn’t have permission to be there and was trespassing. Breaking and entering is also a separate charge from burglary, and you can be charged for it even if you committed no other crime.

North Carolina law includes “felonious breaking and entering,” in which an individual not only enters a building without permission, but has the intent to steal, or injure and/or intimidate an individual inside the dwelling.

  • Penalties are harsher for individuals who break and enter into a house of worship, i.e., a church, synagogue, mosque, or other worship center.

Charges Associated With Breaking & Entering

Different charges are applied depending on the intent.

For an individual who breaks into a building for shelter, but has no intent to commit theft, they will likely be charged with second-degree trespassing. If the individual has been warned to stay off the property, or enters a building that’s fenced in or otherwise closed, they will likely be charged with first-degree trespass, a more serious offense.

  • Trespassing on property belonging to a utility company if the trespass placed anyone at risk of being injured, or if they intended to disrupt operations (such as a power or water company)
  • Trespassing at the home of a former or estranged spouse or domestic partner is also punished more severely if the other party asked them to leave, especially if they are in a shelter for domestic violence

If the intent for theft can be proven, the individual can be charged with burglary even if he or she didn’t actually commit the crime.

If the dwelling is occupied at the time of the break and enter, the individual is charged with first-degree burglary. If the dwelling isn’t occupied at the time of the break and enter, the charge is second-degree burglary. (N.C. Gen. Stat. Ann. § 14-51.)

North Carolina also considers it a crime to break into a building, and open a safe, vault or “other secure place” using explosives, or break into a vehicle, including a car, boat, trailer, etc.

Defend Yourself Against Breaking & Entering

Being charged with breaking and entering doesn’t always follow with a conviction.

Dewey P. Brinkley is an experienced criminal defense attorney in Raleigh, NC. Before working as a defense attorney, he was a Wake County Assistant District Attorney. He understands the criminal justice system, and can represent you for a wide range of criminal charges.

Call the law offices of Dewey P. Brinkley today for a free initial consultation to discuss your criminal defense case at (919) 832-0307. You can also email us at dewey@deweypbrinkleylaw.com, or use our online contact form.

 

What Does The Term “Simple Affray” Mean In Raleigh, NC Court Cases?

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It was supposed to be a fun night out, but it ended badly.

Maybe you went to a concert, a bar, or somewhere else with a gathering of other people. Somehow, you found yourself in a fight situation. You may have been in the wrong place at the wrong time, or you ran into someone you knew. Maybe you or someone else had a little too much to drink and it went wrong while waiting for the Uber.

All you know is that at the end of the night, you were charged with something called “simple affray.”

What It Means

Simple affray is a term used to describe a fight situation—whether threatening to fight someone, or actually instigating violence and throwing punches, and creating a situation that can escalate into something bigger.

one man holding another back from in a bar during an example of a simple affray in Raleigh, NCIn North Carolina, simple affray means that you have committed three things:

  1. You’ve engaged in a fight with another person (this includes self-defense)
  2. This fight took place publicly, in a public place
  3. By engaging in this fight, you’ve caused terror to the public

You can also be charged with simple affray even if you didn’t throw a punch, and weren’t responsible for starting the fight. Inciting a fight (“egging them on”) can also lead to this charge, as well as leading members of the public to believe that they are in danger as a result.

Additionally, if you do throw a punch, even in self-defense, you can also be charged with simple assault.

The Charge

Simple affray in Raleigh, NC is considered a Class 2 Misdemeanor. It is, however, a criminal charge, not a civil one. Victims may have suffered minor injuries that don’t require medical attention.

This charge is designed to punish individuals for not only engaging in violence but also provoking others to do so. Police use this charge to keep the peace when there is the potential for a more dangerous situation, including rioting.

Defense Against Simple Affray

Locating witnesses who can corroborate your side of events as well as offer additional information on what led to the affray, is a good start to building your defense.

Because many venues and public areas now have video surveillance, sending a subpoena for that information is essential to supporting your defense and testimony. Other witnesses can also be identified from video, as well as other aspects of the incident that witnesses and participants may not be aware of already.

Finding strong defense counsel right away can help build your defense and uncover what really happened.

Consequences

For a first offense Class 2 misdemeanor conviction, you can expect to spend from one to 30 days in jail. For subsequent convictions, the jail time can be as high as 60 days, along with fines of up to $1,000.

More severe assaults that lead to injuries are punished more harshly, including ones that involve weapons, domestic violence, serious injury or sexual battery. The state imposes harsher penalties when the assault involves:

  • Females, when the assailant is a male over 18
  • Sports officials—empires, coaches and referees at any organized sports event
  • State employees and officers, public transit operators, campus and/or private security officers, if the assault occurs while they are acting in their official capacity
  • School employees and volunteers (public, private or charter) who are on school property, in the middle of a school event, or are transporting students to or from school

Let Dewey P. Brinkley Defend You For Simple Affray

Dewey P. Brinkley is a former Wake County Assistant District Attorney. If you’re charged with simple affray, he can defend you in criminal court and work for the best possible outcome. Call Mr. Brinkley today at 919-832-0307 or use our contact page to schedule your free consultation.

 

 

What Constitutes Resisting Arrest In Raleigh, NC?

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You’ve committed no crime, but you’re being arrested. Or you’re with someone who is being arrested, and you’re taken to jail along with them despite your innocence. You inform the officer that you’re innocent, but you’re taken to jail anyway. What now?

Whatever you do, don’t resist any arrest, even an unlawful arrest, or you’ll be charged with it.

What It Is

North Carolina considers nearly anything that causes a problem for an on-duty police officer to be part of North Carolina General Statutes, Article 30, Section § 14-223 that states:

What Constitutes Resisting Arrest In Raleigh, NC?“If any person shall willfully and unlawfully resist, delay or obstruct a public officer in discharging or attempting to discharge a duty of his office, he shall be guilty of a Class 2 misdemeanor.”

This means not only resisting your own arrest, but interfering with a police officer doing another arrest or otherwise doing his job.

The statute is intentionally broad as well as vague, covering a wide range of activity that interferes with a police officer doing his job. That also increases your chance of an arrest due to resisting, delaying or obstructing a police officer (RDO) by giving the officer flexibility in what he or she can arrest an individual for.

Types Of Resisting Arrest

Most people think of resisting arrest as the individual who, upon discovering he or she is targeted, runs from the police. Officers also have a certain leeway with using force, and will do so if they believe they are being threatened.

But other actions, like raising your arms in a defensive stance or instinctively moving out of the way can also be interpreted by the police officer as “physical resistance,” even if you meant no harm and were not fleeing.

Resistance can also take a non physical form. Actions such as:

  • Refusing to accept a ticket
  • Giving false information, such as name and address
  • Using abusive language
  • Otherwise slowing down an officer to prevent him from doing his job

Can also see you charged with “resisting arrest.”

Conviction For Resisting Arrest

If you are convicted of RDO, you’ll be facing:

  • Up to three months in jail
  • Fines of up to $1,000
  • A probation sentencing to include counseling and regular meetings
  • A community service requirement

Additionally, you’ll have a record of conviction that will stay on your record, and inhibit your ability to apply for jobs, professional licenses, college and student aid, and other things.

But What If I’m Innocent?

Even if you are innocent and can prove you’re a victim of wrongful arrest in court, it’s best not to resist because you’ll have an additional charge. This means that you may be acquitted of the first charge, but still convicted of the second. Avoid that second charge by not resisting arrest or interfering with a police officer.

Possible defenses against RDO include:

  • Self-defense against an officer who was using unreasonable force against you
  • An unlawful arrest, without probable cause or a warrant
  • Argue and prove that the charges are false
  • NC has no “stop and identify rule.” Unless you are operating a motor vehicle, you are not required to give the police any information, and can politely refuse the officer’s request

If you are charged with resisting arrest, an experienced criminal defense attorney can defend you in court to reduce or dismiss your charges.

Charged With Resisting Arrest? Contact Raleigh’s Criminal Defense Attorney

Dewey P. Brinkley is an experienced criminal defense attorney in Raleigh, NC. Before working as a defense attorney, he was a Wake County Assistant District Attorney. He understands the criminal justice system, and can handle resisting arrest as well as other criminal charges.

Call the law offices of Dewey P. Brinkley today for a free initial consultation to discuss your criminal defense case at (919) 832-0307. You can also email us at dewey@deweypbrinkleylaw.com, or use our online contact form

Forgery In Raleigh, NC. What You Better Know

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When most people hear the word “forgery,” they may think of famous works of art reproduced, and the fakes replaced or sold as the real thing. But forgery has a number of different meanings, all of which can mean jail time for the person caught.

Forgery involves creating an imitation of an object of value, including a document, a signature, or other item with the sole intent of committing some kind of fraud for gain. This can include things like driver’s licenses and ID cards, birth certificates and other official documents, prescriptions, as well as things like contracts. One of the most common forms of forgery is when someone signs another person’s name on a check or has a fake ID printed.

Forgery may also be part of identity theft, and may also be used to charge someone.

Is Forgery A Felony?

North Carolina considers nearly any form of forgery as a felony, since it’s a form of fraud, whether you created, altered or possessed something that was counterfeit under N.C. Gen. Stat. § §14-119-125.  Even if you are unsuccessful at defrauding someone with a type of forgery, but had the intent to do so, you can still be charged with a crime, most of which can result in fines and jail time.

“Uttering” a forged document means that you sold it, attempted to sell it, put it into circulation, or otherwise intend to pass it off as the genuine article with the intent to defraud another individual.

Class 1 Felony charges are for forged checks and other related financial instruments (such as corporate securities), as well as uttering a forged document, and will bring three to twelve months in prison for a first offense, plus fines. If you have more than five of these forged documents in your possession, that charge becomes a Class G felony, bringing ten to twenty-five months in prison, as well as possible fines.

Selling or transferring a forged item is a Class H felony, for money or exchanged for anything of value, and brings five to twenty months in prison, along with fines.

Forging or changing the content of wills, deeds and other similar documents is also Class H felony, bringing five to twenty months in prison, along with possible fines imposed by the court.

Forgery of transcripts from high schools, colleges and universities are Class 1 misdemeanors, since they don’t have a specific monetary value, or are less than $10,000. However, a conviction brings as much as 45 days in jail.

Note that there is no statute of limitations on forgery charges in North Carolina, so you will not be able to claim that as a defense.

Prescription Forgery

Forgery in Raleigh, NC. What you better know.Obtaining a prescription drug by forgery is also considered a drug charge, and includes:

  • Acquiring a controlled substance by forgery, fraud or other type of deception
  • An individual who obtains a controlled substance by representing themselves as a person who is licensed to prescribed, but isn’t
  • Stealing a prescription pad, or creating a forged prescription pad with a doctor’s DEA number for the purpose of fraudulently obtaining a controlled substance

Although prescription fraud/forgery may be a misdemeanor if a violation was committed mistakenly, most are committed intentionally and will be treated as felonies. Even if you are not the individual using the prescription, you may face harsh penalties for forging a prescription to obtain a controlled substance illegally.

N.C. Gen. Stat. § 90-108(a)(10) describes the prohibited acts and penalties for prescription forgery, as well as the penalties for Class 1 misdemeanors and Class 1 felonies.

Charged With Forgery?

A conviction on forgery charges can have long-term consequences that stay with you even with a fairly light penalty. If you find yourself under investigation or charged with forgery, it’s important to have a Raleigh, NC criminal defense attorney who can build your defense, represent you in court and make sure your rights are protected.

Dewey P. Brinkley is a former Wake County prosecutor who works to defend forgery in Raleigh, NC and other criminal cases. Contact our Raleigh law office today at (919) 832-0307 (or user our online contact form) for a free consultation. You can also email him at dewey@deweybrinkleylaw.com.

 

Can A North Carolina Assault Ever Be Accidental?

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Many people use the term “assault and battery” to describe criminal acts. Although North Carolina combines the two, each term has distinctive meanings, while some states separate them.

North Carolina assault between two menAn assault in North Carolina is classified as giving another party (the “aggrieved” party) the fear of bodily harm, including the possibility of death. Acting in a potentially threatening manner or communicating threats of harm without touching another person is classified as “assault.”

“Battery” includes the actual contact and unwanted touching of a person without their consent. It is frequently combined with assault, but is a charge on its own.

Assault can be either a misdemeanor class or higher, depending on the severity of the assault. North Carolina assault charges have several classes, from simple to the felonious “assault with a deadly weapon.” The statute for the various degrees of assault is detailed in N.C. Gen. Stat. Ann. § 14-33.

The Components of Assault

In order for an “assault” to occur, several components must be present:

  • One person threatens to or actually does harm another individual.
  • The other person had reason to believe he or she was actually in danger of being harmed
  • The intended harm was immediate and imminent
  • The assailant’s behavior was “offensive behavior” or communicated a physical threat, such as raising a fist to a potential victim’s jaw, indicating a potential punch

All of these elements must be in place to indicate assault, but it can be difficult to prove actual intent, as well as harmful and/or offensive. This is especially true when phrases like “I’m going to beat you senseless” are used casually, and refer to a sporting activity rather than to indicate the imminent intent of harm.

Defenses Against Assault

It is possible to raise a defense against assault charges. Potential defenses against North Carolina assault charges include:

  •  Self-defense—instead of the aggressor, you were the victim, and needed to use reasonable force to defend yourself or another person from the attacker. You must show that the other party acted first, and that you used reasonable force for the situation with which you were faced.
  • Consent—you and the other individual agreed to engage in a fight or other activity that led to injuries consistent with an assault.
  • Alibi—the prosecution charged the wrong individual, and you can prove your whereabouts at the time of the incident with one or more witnesses.

Can It Be Accidental?

Since assault is the act of someone intending to create a state of fear in another individual, but not necessarily making contact, the answer is probably “no.” An accident is just that, an accident, done without intent, and not intended to give the other individual fear of being attacked or harmed in any way.

However, every accusation of assault is different. Consult with an experienced Raleigh criminal defense attorney to discuss your case and build a strong defense if you are required to attend a trial.

Fight Assault Charges

Dewey P. Brinkley is an experienced Raleigh criminal defense attorney. As a former Wake County Assistant District Attorney, he understands the North Carolina criminal justice system. He has the experience to defend you in court against assault, whether a misdemeanor or felony charges.

Call the law offices of Dewey P. Brinkley today for a free initial consultation to discuss your case at (919) 832-0307. You can also email us at dewey@deweypbrinkleylaw.com, or use our online contact form.

 

Why is Resisting Arrest a Serious Crime in Raleigh, NC?

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You’re being arrested, and you’re not sure why. Maybe you’re innocent and happened to be in the wrong place at the wrong time. Whatever it’s for, you may be tempted to flee the scene or otherwise put up a fight, especially if you believe it’s a wrongful arrest. But should you?

Why Resisting Arrest Is A Crime

Why is Resisting Arrest a serious crime in Raleigh, NC?North Carolina General Statutes Section 14-223 states that “If any person shall willfully and unlawfully resist, delay or obstruct a public officer in discharging or attempting to discharge a duty of his office, he shall be guilty of a Class 2 misdemeanor.”  Additional information is available here.

Resisting arrest is doing something that interferes with a police officer doing his or her job. You can go to jail for as long as three months, even if you are innocent of the original charge. For instance, if you’re wrongly arrested for shoplifting and fight or resist the police officer, you can also be charged with resisting arrest. You may be acquitted of shoplifting, but can still be convicted of resisting arrest, and make a bad situation worse. In other words, until you resisted, you were innocent.

You may also be charged if you refuse to cooperate with an officer, give false information or refuse to accept a traffic ticket. Anytime you obstruct, resist or delay an officer or prevent him from doing his or her job, you can be arrested. While these are not the same as physical resistance, they carry the same weight.

Conviction of resisting arrest is a Class 2 Misdemeanor. This can mean:

  • Fines up of up to $1,000
  • Jail time of up to 60 days in county jail
  • Probation that can include required “counseling” and other regular meetings
  •  A requirement for community service

Defense

“Resisting arrest” can be interpreted a number of ways, but there are defenses that can be raised.

  • Self-defense against excessive force—the police are allowed to use necessary force in the course of an arrest. However, they are not allowed to be violent or use excessive force during arrests. If you were the victim of excessive force, you can argue that you were in the act of defending yourself.
  • Unlawful arrest—if a police officer arrests you without a warrant, do not have probable cause or otherwise exceeds authority, you have been “unlawfully” arrested.
  • False accusations—in court, you and your attorney must prove that the accusations are actually false.

Consult with an experienced criminal defense attorney before going to prepare your best defense.

Avoid Being Charged With Resisting Arrest

The first thing to remember is to be polite and cooperate with the police officer. No swearing, fighting or otherwise interfering with the officer, including resisting, delaying, or obstructing him or her.

You are required to give your name to the officer as well as your state identification. (If you’re involved in a car accident, you’ll also be asked for insurance and registration, which is also required.) Beyond that, you do not have to answer any questions, no matter how forcefully they are asked. Decline to answer, in the most civilized and polite fashion, and request to speak to a criminal defense attorney. (You may be given a public defender first.) Avoid answering any more questions or providing any information that, as they say on TV, can, and will, be used against you in court. You could unwittingly give a prosecutor enough information to convict.

Fight Charges of Resisting Arrest

Dewey P. Brinkley is an experienced criminal defense attorney in Raleigh. Before defending those accused of crimes, he was a Wake County Assistant District Attorney. He understands the criminal justice system and can defend you against even the most serious felony charges. If you’re charged with resisting arrest, you must take it seriously.

Call the Law Offices of Dewey P. Brinkley today for a free initial consultation to discuss your case at (919) 832-0307. You can also email us at dewey@deweypbrinkleylaw.com, or use our online contact form.

Raleigh Defense Lawyer – Difference Between a Misdemeanor and a Felony (Video)

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This is Part 3 of our weekly North Carolina Criminal Defense video blog: “Difference Between a Misdemeanor and a Felony“

Transcript:

Generally a felony was called a felony because it’s punishable by more than a year in prison. That was the general subdividing of misdemeanors and felonies. If the offense carried a year in prison, essentially then it was considered a felony.