When Accused, Don’t Talk to Police

You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney and if you cannot afford one, one will be appointed for you. This well-known statement is the Miranda warning that people hear when they are being arrested.

Most people have only heard this line on TV or in movies. If law enforcement says this to you, take this very seriously. Anything you say really is going to be admitted into court.

What It Means

You are going to be questioned about your involvement in something. Whether or not you are arrested depends on what you do next.

When Accused, Don't Talk to PoliceOnce a law enforcement officer indicates that he or she would like to talk to you, be polite and respectful, then clearly state two things:

• I am now invoking my right to remain silent
• I want to speak to an attorney

It is imperative that you speak immediately to invoke your right to silence. You need to state that you are invoking your right to remain silent.  If you do not, it will be considered a waiver of your rights and the police will continue to question you and any more statements will become part of the case. Once you have stated you are remaining silent as is your right, at this point all questioning stops until you are allowed to confer with an attorney of your own choosing or one provided for you. If pressed to continue the conversation, clearly state that you do not want to speak to them and will refuse to answer any questions until you speak to an attorney. Be polite but clear, and do not continue speaking if they keep questioning.

If you are approached by a police officer. In North Carolina, you are not required to provide your name or produce any identification. The exception is if you are driving a motor vehicle. Then you are required to produce your driver’s license, registration, and insurance information upon request. For any other questioning, ask to speak to an attorney.

Why You Shouldn’t Speak to Police Right Away

Even if you are innocent, interactions with police should only occur after consulting with a qualified criminal defense attorney. Chances are that you don’t know what they have in mind. Even if you are driving, stop, once you give them your name and driver’s license, and basic information, you are not required to answer any questions. You should respectfully decline those questions without an attorney present.

No matter what the circumstances, police officers are trained in interrogations, and will say anything to get you to admit to anything, even if it isn’t necessarily the truth. They will also take seemingly innocent statements and turn them into something more insidious, leading to statements that indicate you are lying, or that you’re guilty of a crime when you aren’t. The American Civil Liberties Union (ACLU) offers these tips on what to do should you find yourself unexpectedly speaking with the police.

What If The Police “Just Want To Talk?”

If you receive a phone call from a police officer or a law enforcement agent that says, “we just want to talk to you,” this is not a casual conversation. This means they are about to file serious charges against someone, possibly you.

You may be a witness, but they believe you may be a suspect. You are under suspicion, or an arrest may be imminent. Immediately speak to a lawyer before speaking to the police.
Police are given wide latitude when it comes to investigations. This means that they could say anything, true or not, and frequently do. The purpose is not to get to the truth, but to gather evidence and deceive you into believing that they just want to have a conversation.

Should the police show up at your home without a warrant, do not open the door or let them in. Invoke that same right to remain silent. You do not have to offer identification, answer questions, or tell them who is inside. Without a warrant, you are not required to let them in without a warrant. But once you are outside, they may be able to legally search and arrest you.

Don’t fall into the trap of believing that contacting a lawyer for yourself will “make you look guilty.” You have the right to defend yourself and to protect your own rights. Even if you believe that you’re just answering questions, law enforcement is allowed to lie and tell half-truths in order to get you to talk to them, never disclosing the point of their investigation.

Before You Speak to Police, Speak With Raleigh’s Criminal Defense Attorney

You have the right to speak to an attorney before being questioned by police. 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 how to handle police questioning and interrogations.

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  using our online contact form.

Can My DWI Record Be Expunged In North Carolina?

Whenever someone says, “background check,” you may be nervous about what they might find especially a DWI.  Whether it’s for a job, an apartment, or some other important event, you probably won’t want them to find it, but they likely will. If one of those discoveries is a DWI, the process might unfortunately end there. So sometimes getting a DWI record expunged is worth looking into.

So the questions remains “Is it possible to have a DWI expunged here in North Carolina?” Yes, but it depends on the circumstances. 

What Is An Expungement/Expunction?

This is when a judge orders a criminal record sealed so that it is not publicly available. This means that a criminal record would not show up in any type of background check or other publicly available checks.  However, prosecutors would still be able to access these records. For someone with a previous misdemeanor record, an expungement -also called expunction – means that they can answer the question, “do you have a previous criminal record?” with “No.”

Getting Rid Of A Record

Can my DWI Record be Expunged in North Carolina

Due to changes in the law, there is no limit on the number of expunctions you can request for both misdemeanors and felonies. However, there is a waiting period of five years for misdemeanors and ten years for felonies before requesting any expunction.

Under NCGS 15A-146, it is possible to have a felony conviction expuncted if:

• You don’t have another current felony conviction on your record
• The court and/or DA dismissed your case
• You were acquitted at trial by a jury

Misdemeanors are also eligible for expunction if the case was dismissed, or you were acquitted at trial by a jury. There is no fee to file this petition. Other cases involving a conviction will require a $175 filing fee for the petition. Expunctions take between nine and twelve months to complete.

If you were charged with DWI but not tried, the charges were dropped, your case was dismissed, or you were acquitted (found not guilty) at a jury trial, a DWI can be expuncted as any other type of charge meaning that in these circumstances, a DWI record be expunged.

When A DWI Cannot Be Expunged

A conviction for DWI is not eligible for expunction in North Carolina. The North Carolina legislature changed the laws surrounding expunction in 2015 so that a DWI conviction cannot be expunged or expuncted from anyone’s record. That’s why it’s important to have a strong defense when facing DWI charges heading into court, so you’ll have a better chance of a “not guilty” verdict or having your case dismissed.

For a single incidence of DWI in North Carolina, there is a seven-year “lookback period” for both in-state and out-of-state convictions. Felony habitual DWI carries a 10-year “lookback period.” This means that for the person arrested today for DWI, a judge could look up their record for ten years and include those previous charges to increase the penalties, such as jail time and fines.

However, if more than seven years have passed since the previous DWI, the current DWI is treated as a “first” offense.

Seeking Expungement?

Even if your case was dropped, dismissed, or you were acquitted, the process of eliminating it from your record is not automatic. You must file a petition to request expungement. Because it’s complex, an experienced criminal defense attorney in Raleigh can help you clear your record.

As a former Wake County prosecutor, Dewey P. Brinkley has helped thousands of clients and successfully defended many in DWI cases. Contact our Raleigh law office today at (919) 832-0307 (or use our online contact form) for a free consultation.

“It was Just a Joke”—Was it a Criminal Threat?

“I’ll get you for that.”
“Maybe you’ll have an accident on the way home.”
“How would you like it if I. . . .?”
“I’m gonna come to the house and beat the **** outta you!”

Was it a “joke” or a criminal threat? There are times when interactions with others lead to words that probably should not have been uttered, but are. From financial disputes to domestic situations, many people say things they don’t really mean.

You may have been just letting off steam, but that doesn’t mean the recipient understood that. Whether you make the statement in person, on the phone, by email or text, or post them on social media, the other person may not find it as amusing.

Strong statements that include threats of violence during heated conversations may lead the other person to believe that you’ll carry through on those threats. At that point, the statement crosses the line into criminal behavior.

What North Carolina Law Says

"It was Just a Joke"- When Threats are Consider CriminalNorth Carolina General Statute 14-277.1 states that communicating any threat is a Class 1 misdemeanor. This includes:

• Threatening the individual, their child, or other family members, or the threat of property damage
• The threat is communicated to the other verbally, in writing, or by any other means
• The person issuing the threat does so as to make the other person believe that it is genuine
• The recipient of the threat believes the threat to be genuine and will be carried out
The courts do not require actual proof or witnessing any threatening movement, such as making a fist or swinging at someone.

Punishment for communicating threats includes 120 days in jail and a fine at the discretion of the judge. Oddly, simple assault is a Class 2 misdemeanor. This means that the courts have a stronger punishment for someone who threatens to strike someone than the person who actually does hit someone.

What About False Accusations?

Unfortunately, it’s fairly easy to accuse someone of communicating a criminal threat, even without evidence or proof. This happens sometimes in divorce cases that are not amicable. One party may accuse the other of communicating a threat in an attempt to “get the upper hand.” But it’s more likely that the false accusation will eventually backfire once it gets to court. If you are the party falsely accused of communicating threats of violence, it’s vital to seek immediate legal representation to defend you against the charges.

NOTE: The information in this blog should not be considered to be a substitute for the advice and counsel of a North Carolina criminal defense lawyer. If you have been charged with any crime, you should immediately speak with a criminal defense lawyer to learn about your options and how to go forward.

Criminal Defense Attorney For Communicating Threats And Other Charges In Raleigh

Because it’s so easy for someone to accuse a person of communicating a criminal threat or threats, you need to act quickly before a court date—and before anything else happens.

Dewey P. Brinkley is an experienced criminal defense attorney in Raleigh, NC with a proven track record of defending clients against criminal charges. If you’ve been charged with assault with a deadly weapon, contact him immediately to begin building your defense.

Call Dewey P. Brinkley today for a free initial consultation to discuss your case at (919) 832-0307.  Or you use our online contact form.

Was I Resisting Arrest?

During interactions with police officers, most advice involves complying with the officer’s requests. You are required to give your name and provide your identification to the officer. However, you aren’t required to answer any more questions, no matter what the officer says. Raise your hands, speak politely, and don’t do anything that would make an officer believe they are in any type of danger. Request an attorney’s presence to answer any additional questions.

Even with polite interactions, things don’t always turn out the way we hope. You may not have said “no” to a police officer, but you’re being charged with something called “resisting arrest.”

So the question we have to answer is: did you resist an arrest?

North Carolina Law

North Carolina General Statutes, Article 30, Section § 14-223 states that:

Was I Resisting Arrest?“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.”

Whether you resist arrest or interfere with an officer who is arresting someone else, you can be charged. In fact, anytime someone interferes with a police officer during their normal course of duty, a person can be charged with “resisting arrest.” Police have a wide berth with this charge, and they are given a certain amount of leeway when arresting someone.

How You “Resist Arrest”

This charge isn’t only about running from or fighting a police officer. Actions such as:

  • Directly questioning the officer
  • Giving a false name and address to an officer, or other incorrect information
  • Declining a ticket when the officer hands it to you
  • Using rude and insulting language
  • Inhibiting an officer from carrying out their job-related duties
  • Physically moving away from the officer when approached, even in a non-threatening manner

may result in a charge of resisting arrest. If you are arrested for something different, resisting arrest can be added on if you actually do, whether or not you’re innocent of the other charge.

Defending Yourself Against Resisting Arrest

Should you find yourself the target of resisting arrest, there are defenses that you and your attorney can use, including:

  • False accusations, such as arresting you for something you are innocent of, just because the officer believed it
  • Unlawful arrest, with an arrest under a false accusation, or the officer otherwise exceeds his or her authority
  • Defending yourself from excessive force, when an officer oversteps his or her ability to use some force in the course of an arrest

Work with an experienced criminal defense attorney before going to court to ensure you have the best defense.

State v. Humphreys

In this case, a mother arrived to observe her daughter’s car while a police officer searched after an alert by a police drug-sniffing dog. During the search, the police officer told the woman where to stand while she observed, and not to interfere. She informed the officer, “I’m not breaking no law.” She also used foul language during the encounter but did not interfere with the search, with students going to class, or with the school in general. She told passing students that they were about to witness “an unarmed black woman get shot.” Eventually, the woman was charged with disorderly conduct and resisting arrest.

At trial, the defendant requested that the charges be dropped for lack of evidence, but was denied by the court. She appealed, and the Court of Appeals eventually found that questioning the officer was not enough to constitute interference. She believed that she had the right to observe the officer’s actions, and contesting the search that she believed to be unlawful. The Court found that there was no substantial evidence to the officer’s claim of resisting, delaying, or obstructing the officer’s duty.

Contact Raleigh’s Criminal Defense Attorney For Resisting Arrest

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 or use our online contact form.

The Penalties For Arrest For Underage Drinking In North Carolina

North Carolina has some of the strictest laws for underage drinking, with zero tolerance. Carrying alcohol, even an unopened container, is also an offense for which a minor can be ticketed. The exception is for those employed by someone with a valid liquor license, such as a driver for a company that makes and delivers alcoholic beverages.

The legal age for the purchase and consumption of alcohol is 21, without exception. This includes minors at home with their parents, or at a private party with their parent’s permission.

Although the legal limit for blood alcohol content (BAC) is .08% for adults, any amount of alcohol for anyone under the age of 21 is grounds for a ticket and a possible conviction.

Penalties

The Penalties For Arrest For Underage Drinking In North CarolinaNorth Carolina has strict penalties for those arrested for underage drinking, including:

  • Jail time, up to 120 days
  • Loss of driver’s license
  • Fines and monetary penalties, from $200 to $500, as well as court costs
  • Requirement for community service from one to thirty days
  • Requirement of alcohol and/or substance abuse courses
  • If the drinking occurred on campus, the university or other academic institution may impose additional penalties

If an individual has a prior criminal record of any kind, the penalties can be even more stringent. The overall costs for such an arrest and conviction can be substantial.

Most underage drinking tickets are considered misdemeanors. If the individual were driving under the influence, the charge would escalate to DWI, with substantially higher consequences.

Aiding & Abetting

While someone under 21 may not be able to purchase alcohol, sometimes friends old enough may purchase it on their behalf. This, too, is a Class 1 misdemeanor, with penalties of:

  • Revocation of a driver’s license for one year
  • Fines of $500
  • 25 hours of community service
  • Possible jail sentence

A second conviction of Aiding and Abetting within four years of the first conviction can lead to fines of $1,000 and 150 hours of community service.

Consequences Of Conviction

Even though the ticket is a misdemeanor, a conviction has serious, long-term consequences that can last for many years, including:

  • A criminal conviction that appears on every background check for employment
  • Limits on types of employment, since most employers perform criminal background checks
  • Loss of employment, in some cases
  • Limits on student financial aid and less available education
  • Loss of public housing and public assistance benefits
  • Denial of professional occupational licenses if the crime is directly related to the occupation, such as nurses or pilots
  • Limitations on housing, both rental and for purchase
  • Possible loss of the right to own a firearm
  • Inability to get security clearances for employment

These are in addition to the sanctions imposed by the court.

The UNC School of Government offers this free tool that explains collateral consequences under North Carolina’s law. While it does not offer legal advice, it can give an idea of the type of consequences you could face with a conviction.

Defense For Underage Drinking Charges

A charge of underage drinking is not a minor offense and can bring serious consequences. If you or your child have been charged with underage drinking, you need the help of an experienced criminal defense attorney. Without legal help, you could be facing serious, long-term consequences.

Dewey P. Brinkley is an experienced criminal defense attorney in Raleigh, NC with a proven track record of defending clients against criminal charges. If you’ve been charged with assault with a deadly weapon, contact him immediately to begin building your defense.

Call Dewey P. Brinkley today for a free initial consultation to discuss your case at (919) 832-0307. You can also email us by using our online contact form.

Assault With A Deadly Weapon Penalties in the North Carolina Courts

Most assault cases are misdemeanors in North Carolina. Assault can be a serious charge by itself. Add in anything that can be considered a deadly weapon, and a misdemeanor charge escalates into a felony charge immediately, even if no one was hurt. The reasoning is that the involvement of a weapon greatly increases the chances that a victim will be seriously hurt or even killed.

There are multiple levels of “assault” in North Carolina, both misdemeanor and felony. If you’ve been arrested and charged with assault with a deadly weapon, these are felony charges with serious consequences.

The Charge

There are three ways that someone can be charged with Assault With A Deadly Weapon in North Carolina:

  • Assault With A Deadly Weapon Penalties in the North Carolina CourtsWith the intent to kill, in which serious injury is inflicted, a Class C felony
  • With intent to kill but no serious injury is inflicted, Class E felony
  • Inflicting serious injury, a Class E felony

Intent to kill is established by the actions and words of the assailant that he or she clearly meant to kill the victim, even if they did not.

A “serious injury” is one that:

  • Permanent and serious disfigurement
  • Long-term/permanent pain
  • Long-term/permanent impairment
  • Loss of function of a body part or organ
  • Long-term hospitalization
  • Comatose condition or significant risk of death

One particularly important point is whether the alleged victim actually suffered injuries that could be considered serious. A defense attorney will seek to prove that the other party did not suffer major injuries or any injuries at all.

What Is A “Deadly Weapon?”

As you might imagine, guns, knives, blunt objects, and other items are considered deadly weapons, but the statute doesn’t have a strict definition. So everyday objects used in a deadly weapon case that results in someone’s death will fit that definition.

This means that picking up anything that’s handy and using it as a weapon will still be considered as a “deadly weapon,” even if it isn’t a firearm. If during an assault, for instance, a person picks up a cast-iron pan, a baseball bat, a fireplace poker, or a hand-sized object made of glass or marble to strike someone, the object becomes a deadly weapon. No matter what the object, its weight, size, and/or shape can cause serious injury or even death if used against someone the right way.

Sentencing And Penalties

A sentence will depend on the class with which the person was charged.

  • Class C felony for Intent To Kill with serious injury: between 44 and 231 months, or 3.6 years to 19.25 years.
  • Class E felony for inflicting serious injury or intent to kill without injury: between 15 and 88 months, or 1.25 years to 7.3 years. However, prior convictions can increase the sentence as high as 182 months or 15.2 years.

Additionally, there are fines, court costs, restitution to the victim, probation, and other miscellaneous penalties. You may also be sued in civil court for financial damages as a personal injury or other types of case.

Criminal Defense Attorney Dewey P. Brinkley In Raleigh

Assault with a deadly weapon is a serious crime that can include a long-term jail sentence. If you’ve been accused of this crime, it’s important to find someone to defend you in court who has your best interests in mind. Your future, your life, and your rights are on the line, so it’s important to begin working with a criminal defense attorney who will work for you.

Dewey P. Brinkley is an experienced criminal defense attorney in Raleigh, NC with a proven track record of defending clients against criminal charges. If you’ve been charged with assault with a deadly weapon, contact him immediately to begin building your defense.

Call Dewey P. Brinkley today for a free initial consultation to discuss your case at (919) 832-0307. You can also email us by using  our online contact form.

In North Carolina, What Are My Chances Of Probation in a DWI Manslaughter Case?

North Carolina takes any charge of DWI seriously. The state aggressively prosecutes anyone arrested on DWI manslaughter, and punishments are harsh. However, some cases may be less serious and probation may be a possibility.

Definition Of Manslaughter

DWI Manslaughter Defense AttorneyIn North Carolina, DWI manslaughter is an action resulting in the death of someone that wouldn’t be classified as murder. There are three types of manslaughter:

  • Voluntary, the killing of a person with intent, such as a self-defense situation where deadly force wasn’t warranted
  • Involuntary, the killing of a person without intent, such as in the act of a non-felony crime, was criminally negligent or engaging in negligent conduct at the time
  • Vehicular, in which a person dies through an action involving a motor vehicle driven by someone in a reckless or negligent manner. Also called “death by vehicle,” it includes DWI, texting while driving, speeding, and other offenses.

Vehicular manslaughter that involves DWI is the most serious. At the least, an individual convicted of DWI will spend 24 hours in jail or have 24 hours of community service, along with a $200 fine.

Probation Is Possible

It is possible to receive probation after a DWI manslaughter case, but it will depend on the facts of your case, such as prior convictions and mitigating or aggravating factors. While it may not include incarceration, probation is not a “get out of jail free” card, either.

North Carolina has two types of probation: supervised and unsupervised. Both types have specific requirements and last for a specific length of time which are decided by the judge. This will include not participating in any criminal activity.

  • Unsupervised Probation has fewer conditions and is less restrictive. You will not have a probation officer but will have certain conditions you will have to meet. They can include:
    • Payment of all fines and court costs ordered by the judge by a specific deadline
    • Completion of an alcohol assessment and treatment program
    • Perform a defined term of community service, with the number of hours ordered by the judge
    • Being barred from driving without limited driving privileges or have a legal right to drive
  • Supervised probation requires you to follow the conditions for unsupervised probation, and all conditions issued by the judge, which may also include:
    • Paying all fees and court costs associate with being on probation
    • Regular meetings with your probation officer as required
    • Being either enrolled in school or employed, and notifying your probation officer if you are no longer employed or enrolled
    • Requiring permission from your probation officer to leave the state for any reason
    • Submit to blood, urine, or breath tests, or warrantless random searches if your probation officer sees the need
    • Submit to warrantless searches by law enforcement if they believe you may have been involved in any criminal activity.
    • Not possessing any illegal drugs or any controlled substances without a prescription from a licensed physician

Of course, you must strictly adhere to the terms set out by the judge for your probation. If you don’t follow the requirements, your probation can be revoked, and you can be sent to jail.

Getting to the point of probation requires the help of a skilled DWI attorney who can help with a case of DWI manslaughter.

DWI Manslaughter Defense Attorney

DWI, or Driving While Intoxicated, is always a serious charge in Raleigh, and anywhere in North Carolina. If you’ve been arrested for DWI Manslaughter or any DWI charge in Raleigh, it’s vital that you have a strong legal defense. Without it, you could be facing a longer jail sentence without the possibility of probation.

Dewey P. Brinkley is a Raleigh DWI defense attorney who can aggressively defend you against any DWI charges and protect your rights in the courtroom. We will work to have your charges reduced to probation or even dismissed.  Call the law offices of Dewey P. Brinkley today for a free initial consultation to discuss your DWI case at (919) 832-0307. You can also use our online contact form.

North Carolina’s “Second Chance Act”

An old charge for disorderly conduct or other minor offense that’s dismissed can keep you from getting a job, into college, or the military. Even though it was dismissed, it keeps showing up in background checks for years. You explain it, but not everyone believes you.

It’s estimated that one in four residents of North Carolina has past criminal records that have long-term consequences. This includes arrests that ended in the dismissal of charges, “not guilty” verdicts, or was for nonviolent misdemeanor convictions. Even if dismissed, they show up in background checks for things like military enlistment, college educations, and employment. In many cases, having a “record” can prevent a person from pursuing a range of opportunities.

We’ve mentioned the topic of expungement in our blog last August. In fact, under some circumstances, it’s already available Since then, North Carolina has passed a new law that expands expungement in the state. The new law makes it easier to expunge if you have one of these low-level charges and other entries that give you a lasting criminal record.

Second Chance Act, SB 562

Passed unanimously by the NC General Assembly in June of 2020 and signed into law by Governor Ray Cooper, the Second Chance Act became effective on December 1, 2020. It’s also been nicknamed the “clean slate” bill.

 North Carolina’s New "Second Chance Act" For Drug OffensesAnyone wishing to request an expungement must do so by filing a petition since it is not automatic. The new law allows for the expunction (also called “expungement”) for:

  • Some juvenile convictions, misdemeanors, or a Class H or I felony
  • Nonviolent misdemeanor and felony convictions
  • Acquittals and dismissed charges

You can be granted an expungement if:

  • You haven’t been convicted of any misdemeanors or felonies during the required five- to ten-year period
  • You have shown good moral character
  • You’ve not been granted a previous expunction for a misdemeanor or nonviolent felony
  • You have no:
    • Outstanding warrants
    • Obligations
    • Restitutions
    • Pending criminal cases

Exceptions

However, there are some exceptions under the Second Chance act, including:

  • Class A1 misdemeanors
  • Felonies that are Class A through G
  • Any offenses that include sexual assault
  • Any offenses that require sex offender registration
  • Specific sex-related and stalking offenses
  • Felony possession with intent to sell or deliver:
    • Heroin
    • Cocaine
    • Methamphetamines
  • Any offense that involves driving while impaired

Convictions such as these are not eligible for expunction.

In the future, new dismissed charges and acquittals will be automatically expunged from records as a matter of course, except for motor vehicle violations. This provision becomes effective on December 1, 2021.

For North Carolina Drug Offenses

Those with non-violent drug trafficking charges are also eligible to petition the court for dismissal of their previous record. This includes all lower-level criminal convictions, dismissed charges, and verdicts of “not guilty.”

But in North Carolina, drug trafficking comes with mandatory prison sentences, and a conviction makes it difficult to get out.

An additional new law, called the “First Step Act” allows a judge to deviate from standard long prison sentences and high fines if:

  • The individual has avoided any violent activity
  • Admits to having a drug problem
  • Is not a repeat offender

The idea is to help those with addiction seek out treatment, rather than languish in prison with long sentences. The judge will have to see certain findings and has the discretion to give a shorter sentence if these conditions are met.

Additionally, those convicted of drug trafficking prior to December 1, 2020, can request for a judge to retroactively ease their punishment.

How To Get A Second Chance

Because these expungements are not yet automatic, you’ll have to file the petition yourself with the help of a criminal defense attorney. The petition requests that the judge grant your expunction, and your record will be erased for that charge or incident.

While you can file the petition on your own, it’s best to discuss your case with a criminal defense attorney who will review your case and advise you on the best course of action.

Note that while expunged criminal records aren’t available to the public, expunctions can still be accessed by law enforcement and courts if there is a new offense or conviction.

Take Advantage Of The Second Chance Act

Old charges don’t disappear from our record, nor do dismissals and acquittals. You have to take action to make it happen. Let Dewey P. Brinkley help you get your Second Chance so you can move on from past Noth Carolina drug offenses.

Dewey P. Brinkley has defended thousands of clients against various criminal charges and helped many with the expunction of a long-ago minor criminal record.  Contact our Raleigh law office today at (919) 832-0307 or use our online contact form for a free consultation.

 

Domestic Violence Since the Pandemic Isolation in Raleigh, NC

It’s been a full year since COVID-19 closed down the state of North Carolina and the entire world. Beginning in March of 2020, many countries began ordering “lockdowns” for citizens to stem the spread of the coronavirus to more of the population. Masks became commonplace, many office-based employees began working from home.

Children began online schooling, and many parents became home-schoolers as well. Retail employees in grocery and discount stores became “essential workers” while everyone else stayed home.

People everywhere have adapted to the new lifestyle, with many making permanent changes. Unfortunately, one less positive outcome of the pandemic isolation has been the increase of domestic violence resulting from the nationwide lockdowns.

Lockdown With An Abusive Partner

Changes in Domestic Violence Since the Pandemic Isolation in Raleigh, NC

Another name for domestic violence is “intimate partner violence,” or IPV. The CDC reports:

  • About one in four women and one in ten men have experienced domestic violence by an intimate partner during their lifetime and reported at least one impact of the violence, i.e., concern for personal safety
  • Over 43 million women and 38 million men have experienced psychological aggression by an intimate partner in their lifetime

The pandemic lockdowns have exacerbated domestic violence. Individuals who were planning to leave their abusive domestic partner may have seen their plans thwarted when the shelter-in-place plans were implemented, trapping them with their abuser. Teachers, social workers, childcare professionals, and others who would otherwise have more frequent contact with victims are not in touch to be able to help.

Social distancing requirements meant that abused partners no longer had options in friends or relatives ready to help. The risk of COVID-19, and subsequent quarantine, took away resources such as shelters that might have been available before. Closures of courts also mean that protection orders were more difficult or even impossible to acquire.

Violence can take the forms of:

  • Physical
  • Emotional
  • Psychological
  • Sexual

Many of these types of relationships also involve financial entanglement, and victims may not be able to access their own paycheck in order to leave.

Medical Implications

One of the most prevalent indicators of increased domestic violence during the pandemic has been the uptick in Traumatic Brain Injuries (TBI). Even outside of the pandemic, TBI in women is about one in four. That rate has increased along with the rise in domestic violence cases.

Medical facilities are frequently safe spaces for victims to be able to report abuse and seek help. Unfortunately, the pandemic has also taken away that option. Surgeries and other appointments were canceled in the wake of the pandemic. Non-emergency medical visits have taken the form of telemedicine, either a phone call or video call with patients to determine a diagnosis. This means that abusers may be able to listen in to conversations, rendering the patient unable to disclose any indication of abuse.

American Family Physician recently published guidelines for healthcare providers for helping identify and assist victims of domestic violence.

North Carolina’s Response

In March of 2020, police departments in the US saw as much as a 27% increase in domestic violence calls, although the number of calls in Raleigh stayed about the same as the previous year. However, shelters such as Interact have seen a weekly increase in calls as much as 30% to 50%.

North Carolina Health News also reported an uptick in domestic violence cases statewide.

The COVID-19 Remote Hearing Resource For Domestic Violence Matters, published in January of 2021 by the North Carolina Administrative Office of the Courts sets out guidelines for courts to handle these particularly difficult cases. Additional information is available on the North Carolina Judicial Branch website.

Despite the lockdown, Gov. Roy Cooper’s stay-at-home order does allow domestic violence victims the opportunity to leave home and seek safety and shelter. Victims may not realize that they can leave, no matter what their abuser tells them. Help is also available through:

The North Carolina Domestic Violence Intervention Program also offers treatment for abusers to help end the cycle of abuse and learn new methods of interaction with family members and intimate partners.

Criminal Defense Attorney Dewey P. Brinkley In Raleigh

If you’ve been accused of a crime or arrested for one, it’s important to find a strong defense attorney quickly to begin building an effective defense. Dewey P. Brinkley is an experienced criminal defense attorney in Raleigh, NC who understands the criminal justice system, and how to defend you against many types of criminal charges.

Call Dewey P. Brinkley today for a free initial consultation to discuss your case at (919) 832-0307. You can also email us by using our online contact form.

Negligence vs Income Tax Fraud in Raleigh, NC

Tax time is here. Maybe you’ve already e-filed your return and are awaiting a refund, or you’re awaiting some additional information before you can file. Or like many Americans, you’re procrastinating until the last minute, which isn’t recommended.

We’ve discussed what you could face if you fail to pay your North Carolina state taxes in a previous blog. If you’ve done something wrong, you’ll generally be audited. But is it negligence, or tax fraud?

Negligence

Tax laws are complex, and not easy for the everyday taxpayer to understand. Even with tax software, mistakes can happen. In the absence of evidence of fraud and/or criminal activity, the IRS will generally assume you (or your tax preparer) have made a genuine mistake.

Negligence vs Income Tax Fraud in Raleigh, NC

That doesn’t mean that you won’t face a penalty for making a mistake. You can expect a penalty of about 20% on a return with errors. In this case, you likely won’t face criminal charges, only a potential fine, and penalty.

If you are unable to pay your taxes, North Carolina also offers an installment agreement as well as a settlement plan, called “Offer In Compromise.” Waivers are available in special hardship circumstances. You’ll need to complete Form NC-5500 and submit it to the North Carolina Department of Revenue to request one.

You can get help from a tax attorney or tax preparation professional to take care of tax return mistakes. For taxpayers who have not filed previous years’ tax returns, the IRS offers guidance on its website.

Tax Fraud

There is a difference between minimizing your tax burden through deductions, credits, contributions, and other options and intentionally misrepresenting your income to lower your taxes.

When questioning your tax returns, the state of North Carolina and the IRS focus on the intent of the taxpayer. Was this an honest error, or was there a deliberate attempt to conceal income, assets, and any other taxable items?

Income tax fraud can take the form of:

  • Knowingly failing to file your income tax return
  • Deliberately failing to pay any taxes that are due
  • Consciously failing to report all received income
  • Preparing and filing an intentionally false return
  • Making false or fraudulent claims

The IRS will review your return for common signs of fraudulent activity, such as:

  • Intentionally under-reporting your income
  • Transfers and/or concealed income
  • Two or more sets of ledgers
  • Stating personal expenses as business expenses
  • Altered and fabricated documents
  • Frivolous tax claims, including exaggerated exemptions and deductions
  • Using a bogus Social Security number
  • Claiming exemptions for a child or other dependent that doesn’t exist

If you have a cash-based business, are self-employed, or are primarily paid in cash when you work, you may find it easy to under-report your income. This doesn’t mean that you can’t be caught for tax fraud. The State of North Carolina and the IRS are well-versed in identifying fraudulent tax returns as well as tax evasion.

Penalties

There are different penalties for both negligence and tax fraud.

For an unintentional error, you will still likely be assessed a 20% penalty. But for intentional tax fraud, a conviction can include penalties of:

  • Fines of up to $100,000
  • Imprisonment for up to five years
  • A combination of both

Additionally, you may be susceptible to more frequent audits and have a difficult time finding someone to take care of your tax returns.

Call Dewey P. Brinkley For Financial Crimes Defense

If you’ve been charged with willful failure to file a tax return, tax evasion, or any financial crimes, you’ll need the help of a financial crimes defense attorney immediately to avoid a potential jail sentence, fines, and penalties, along with a permanent criminal record.

Call the law offices of Dewey P. Brinkley immediately for a free initial consultation to discuss your case at (919) 832-0307. You can also email us using our online contact form.