Tag Archives: Raleigh Criminal Defense Attorney

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. You can also email us at dewey@deweybrinkleylaw.com.

 

Charged With Resisting Arrest During Protests In Raleigh?

Free speech is still an American right. Expressions of free speech are protected by the First Amendment, and gatherings of these types have increased in numbers since the death of George Floyd in May. While many demonstrators were peacefully protesting, others were not, leading to violence and destruction in Raleigh, Durham, Greensboro, Charlotte, and other cities around the Tar Heel State.

Police nationwide have arrested both peaceful protesters right alongside looters and violent mobs to prevent more vandalism and harm to residents. What do you do if you were in one of these protests and found yourself arrested?

The Right To Protest

Help When Charged With Resisting Arrest During Protests In RaleighProtesting comes under the First Amendment and “free speech.” This means that you have the right to express an opinion in public, anytime, anywhere, with some limitations. (Not all speech is “protected” by the First Amendment, such as inciting riots or “fighting words.”) Protests and demonstrations on private property, such as a place of business or employment, are not as protected.

However, protests that evolve into more than civil disobedience and involve illegal activity such as rioting, burning, looting, and other conduct that can cause injury or property damage can lead to arrest and other police intervention.

Large-scale demonstrations generally require permits to accommodate the additional police presence for the protection of attendees.

Resisting Arrest

North Carolina General Statutes, Article 30, 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.”

In addition to resisting arrest when you’re told, it also means interfering with any police officer who is doing his or her job. This includes the act of interfering when an officer is arresting someone else. Additional causes include using abusive language towards law enforcement, giving false information such as name and address, refusing to accept a citation, and preventing an officer from doing his or her job, such as interfering with another arrest.

Not complying with a police request can also be considered “resisting arrest,” based on the officer’s judgment. Therefore, it’s important at such a public event to allow the police to do their job, and comply with their requests.

If you’re charged with a different offense, such as disorderly conduct, actively resisting arrest can bring a second charge, even if the first one for disorderly conduct is eventually dropped. If you’re innocent of the original charge, resisting arrest is a separate charge for which you will be tried.

Should you be part of an arrest during a protest that turns dangerous or violent, you have the right to the criminal defense attorney of your choice. A defense attorney can help you through the court process and work to have the charges reduced or even dropped.

Need Help With Resisting Arrest Charges? 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 has experience with resisting arrest as both misdemeanor and felony 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’s The Difference Between Specific Intent Crimes And General Intent Crimes In Raleigh, NC?

If you’ve been charged with a crime in Raleigh, prosecutors may make a distinction: specific intent or general intent. Although committing a crime such as theft is a crime no matter what, the two categories of theft are important to delineate the severity of the crime that’s been committed. The main difference is what you were planning to do, which can directly influence the outcome of your case.

General Intent

What's The Difference Between Specific Intent And General Intent Crimes In Raleigh, NC?

This is a crime that is committed for no other purpose than doing it. There is no intent for a specific outcome.

The term “general intent” only refers to the person’s state of mind when committing the crime requiring only the willingness to break the law. It also includes someone who commits a crime and is unaware that it is illegal.

Battery is one example of a “general intent” crime. Defined as “the intentional and harmful physical contact of another person,” the very essence of committing battery is simply to do it without any other intent. If one individual punches another, the intent is established, and the prosecution will only need to show that the assailant intended to commit battery. There is no need to prove that the assailant injured the victim, since the law assumes that the victim was injured.

Specific Intent

As the name implies, the crime is committed with a specific purpose. There is not only a desire to commit the crime, but also the desire for a specific outcome. This requires the prosecution to prove that a defendant acted with a motive in mind when committing this action.

Using our battery example, an assailant who commits battery on another for the sole and intended purpose of causing an injury (such as a broken nose or a black eye to the victim) has committed a specific intent crime. The prosecution must then go the extra step of proving that a defendant had a motive for committing the crime.

Crimes that are considered “specific intent” include:

  • Theft
  • Larceny
  • Embezzlement
  • Forgery
  • Child molestation
  • “Inchoate” offenses or crimes, such as conspiracy, attempt and solicitation (taking steps to and preparing to commit a crime)
  • Murder

Another example is auto theft. If an individual takes someone else’s car for the purpose of borrowing it or just to play a prank on the owner, it can be argued that there was no crime committed if there was never an intent to keep the car. However, if a vehicle is stolen by one individual to deprive the owner of their vehicle permanently, the crime is now considered “specific.”

A Defendant’s Mental State

There are two parts to most crimes: the “actus reus,” or the act of the crime, and the “mens rea,” the mental element or motive of the crime.

In the process of a trial, a prosecutor may be required to demonstrate the defendant’s mens rea, or the motive for committing the crime. The difference between a general and specific intent is whether the defendant committeed the actus reus and intended to achieve a specific outcome. Proving that a crime is general intent won’t require the prosecutor to show that the defendant had any specific outcome in mind, whereas a specific crime will.

Defense For Specific And General Intent Charges

There is a wide gap between general and specific intent charges, that makes a big difference when it comes to your defense. If you unintentionally committed a crime without a specific intent in mind, you could be found not guilty. But you’ll need a strong defense in order to achieve it.

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.

 

Can A North Carolina Assault Ever Be Accidental?

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.

 

What Is Adjudication And How Is It Different Than A Conviction In Raleigh?

When a juvenile breaks the law, there are two possibilities after the arrest, depending on the type of charges involved. Underage offenders who commit minor offenses are brought into the juvenile court system. Juveniles who commit more serious crimes—drug and/or weapons possessions, assault and other felonies—are generally tried as an adult in the criminal justice system. The focus of the juvenile court system is rehabilitation and intervention, rather than punishment, the focus of the adult criminal justice system.

Definition

This term has a number of meanings in different places. Black’s Law Dictionary defines adjudication as “the giving or pronouncing a judgment or decree in a cause; also the judgment given.”

In Raleigh, North Carolina, “adjudication” in juvenile court is the equivalent of the term “conviction” for an adult in criminal court. Court proceedings are handled in state court.

What Is Adjudication?

Juvenile Criminal Defense Attorney In Raleigh

Juvenile cases are similar to adult court proceedings. The trial is called an “adjudicatory hearing,” where a judge (and in some jurisdictions, a jury) reviews the evidence and determines the facts prove the charges beyond a reasonable doubt. If he or she has been found “guilty” in juvenile court, the verdict is called “adjudication.”

An adjudication does not always mean incarceration (also called “commitment”) as it might in an adult criminal court. Since the focus is on rehabilitation before the age of 18 (and sometimes, 21), there are a number of alternatives to jail time that a juvenile can receive.

Deferred adjudication (also called Diversion) is an alternative to incarceration that may involve probation or other conditions that the juvenile will have to meet to resolve, and possibly dismiss the charge or charges. Deferred adjudication is frequently used in cases where the circumstances of the case warrant giving the juvenile a second chance.

The Disposition is the equivalent of a sentence and is the final decision on how the juvenile’s case will be handled after adjudication. Again, rehabilitation is the goal, so the disposition can include:

  • Fines and restitution
  • Community service
  • In-home placement under supervision or probation
  • Out of home placement in commitment facilities

Disposition can also involve a specific treatment plan to address conditions in the child’s current behavior and living environment.

Adjudication is also not a matter of public record as standard criminal convictions are.

Conviction

As an adult, a conviction in criminal court is a different matter, proving beyond a reasonable doubt that the individual did commit the crime in question.  Depending on the severity of the charges and the outcome, fines, loss of a driver’s license, and jail time are possibilities.

While juvenile charges may, eventually, be reduced or dismissed, adult criminal convictions aren’t as easy to lose. A conviction, even if no jail time is involved, can bring difficult restrictions that may be lifelong obstacles, such as:

  • Losing the right to vote
  • Barred from holding a public office
  • Barred from serving as a juror
  • Restrictions from many types of employment that require licensure (health care workers, attorneys, barbers and cosmetologists, and others), depending on the charges

Employment restrictions may depend on the type of charges one is convicted of; but discharge from employment is also possible in occupations where “moral turpitude” is a factor. Once discharged after a criminal conviction, unemployment can also be denied.

Convictions can be expunged under certain circumstances. A skilled criminal defense attorney can help you remove a conviction from your record, or appeal if necessary.

Juvenile Criminal Defense Attorney In Raleigh

Children in trouble can be a parent’s worst nightmare, but help is available. Attorney Dewey P. Brinkley is a former Wake County prosecutor who understands the court system and can help defend your child in juvenile or adult court. Call today: 919-832-0307 (or contact him online) to schedule an appointment for your free initial consultation.

Raleigh Defense Lawyer Answers – How to Choose a Great Attorney? (Video)

This is Part 34 of our weekly North Carolina Criminal Defense video blog: “How to Choose a Great Attorney?

Transcript:

I think the most important thing when you’re trying to decide who to hire as a criminal defense lawyer is their level of experience. How much experience do they have in the courtroom and how much experience do they have with the people in those courtrooms (the officers, the judges, the district attorney’s office)? There’s no substitute for experience in a criminal case.

I’ve tried over a 1,000 cases here in Wake County. I’ve worked as an assistant DA here in this county. And as a defense lawyer now for 11 years, I’ve been before the same judges, the same officers, deal with the same DAs on a day-to-day basis.

But it’s also listening to the client and trying to get to know the client as well as possible. Where that client is coming from. What their experience is. How they ended up in this situation. I think that’s one piece that I try to get to know my clients as much as I can.

I think the only thing else you can talk about is preparation. Do you have a lawyer who is going to spend the time preparing your case? I try to prepare my cases, meet with my clients, get to know those clients, know the law and the facts of the case, before we go to court. So that we can achieve the best outcome for that particular client.

Our offices are located right across the street from the Wake County Justice Center. We’re in close proximity to the courthouse, so I’m here most days working late, meeting with clients, and I’m very very convenient to the courthouse. I think the most important thing that you can do if you’re looking to hire a criminal lawyer is meet with that person and decide how comfortable you are with them. What we try to do at our firm is learn about our clients and spend the time and the preparation work knowing their case to try to achieve the best possible outcome for that particular client.

Raleigh Attorney Answers – How Can I Get My Suspended License Back? (Video)

This is Part 33 of our weekly North Carolina Criminal Defense video blog: “How Can I Get My Suspended License Back?

Transcript:

The first thing we try to do is look at your driving record and see if there’s any possible way that we can restore your driving privilege, get your license back. Is it because you failed to appear in court and missed a ticket? Is it just a matter of resolving that ticket? Are you revoked for some other reason? Was there a driving while impaired conviction, and you didn’t do your substance abuse treatment, or that form wasn’t sent into the DMV?

Driving while license revoked is one of the most prevalent crimes that we see in Wake County District Court. Lots of people do not know how they can get their privilege back. If they call me and they have their driving record, we can go through that and hopefully resolve the issue that’s causing that suspension.

How a Raleigh Drug Attorney Can Help Your Possession Case (Video)

This is Part 32 of our weekly North Carolina Criminal Defense video blog: “How a Raleigh Drug Attorney Can Help Your Possession Case

Transcript:

The big difference is between simply possessing a controlled substance and possessing it with the intent to sell it or deliver it, or were you actually caught selling it?

If it’s simply a possession crime, and you’re a user, and you haven’t been in trouble before, there are certain safeguards that are available to you in North Carolina that will allow you, if you’re successful, to potentially earn a dismissal and get the matter expunged from your record.

It’s different if you’re caught selling or possessing a substance with the intent to sell it. That’s when the stakes get much higher.

Raleigh Defense Lawyer – Prison Alternatives For NC Drug Cases (Video)

This is Part 31 of our weekly North Carolina Criminal Defense video blog: “Prison Alternatives For NC Drug Cases

Transcript:

Typically, if you’re charged with a drug crime, you’re not eligible for a conditional discharge or a felony diversion. You’re going to be tried on supervised probation before being sent to prison unless it’s a trafficking case. Trafficking is going to be based on weight. If you’ve got more than 10 pounds of marijuana, or four grams of heroin, or 28 grams or more of cocaine, those are all going to be trafficking level crimes. By statute, you do have to do prison time on those. The only exception to that is if you actually decide to become an informant, work with the police, or provide what we call substantial assistance, which can potentially have the court sentence you to probation rather than that mandatory active time.

Raleigh Defense Attorney Talks Drug Detox Programs as Part of an NC Sentence (Video)

This is Part 30 of our weekly North Carolina Criminal Defense video blog: “Drug Detox Programs as Part of an NC Sentence

Transcript:

Drug treatment court is a great program that we have here in Wake County. Basically, it involves the offender being on supervised probation, but it involves weekly meetings and counseling sessions. Part of the process is that if there are positive urine screens for drugs, that offender can spend the weekend in jail. They have their own sanctions. It’s a great program here in Wake County if you’re on probation.