In December 2017, the options for expunctions (or expungements) and the process for removing convictions from people’s records have been drastically improved by Senate Bill 445.  More changes are coming soon. On June 25, 2020, Governor Roy Cooper signed Senate Bill 562, a.k.a. The Second Chance Act, which will loosen previous requirements, allowing even more individuals with criminal histories to have a chance at clearing their records. While some changes become effective December 1, 2020, the most sweeping changes – the automatic expunction of dismissals or acquittals by operation of law – will not become effective until December 1, 2021.  Below are a few examples of the modifications to the laws regarding expunction that will apply to offenses committed by individuals of at least 18 / eighteen years of age:

In addition to misdemeanors and felonies, infractions will be eligible for expunction as long as the person was acquitted of the charges – i.e., they were dismissed or a finding of not guilty or not responsible was entered.  It will also no longer be required that the person had not previously been convicted of a felony to pursue an expunction for a dismissed or not guilty charge.

Felonies, misdemeanors, or infractions for which the person was acquitted, i.e., that were dismissed or for which a finding of not guilty or not responsible was entered on or after December 1, 2021, will be automatically expunged by operation of law, and will not require a petition.

Also, pursuant to The Second Chance Act, a person may file a petition for expunction of more than just one nonviolent misdemeanor convictions, but in that case will have to wait seven years rather than only five years in order to do so.

The professionals at Collins Law Firm have been handling scores of expunctions for over 20 years in New Hanover County, Pender County, and Brunswick County.  If you are interested in having your record expunged, or if you have a friend in such a situation, please give our office a call at (910) 793-9000 for a confidential consultation to discuss your eligibility.

By David B. Collins, Jr.

It happens so easily—one makes a bad choice, gets misunderstood, or falsely accused, and in the result faces criminal charges.  Regardless of the outcome in a criminal matter—even in case of a wrongful criminal charge—the fact that one was criminally charged will result in a criminal record.  Unless dealt with appropriately, a criminal record may create a virtuous circle and negatively affect one’s chances in the job market, in college applications, on the housing market, etc.  In an attempt to mitigate or avoid negative consequences of one’s criminal record, one should consult with an attorney about whether or not they are eligible for an expunction of their criminal record and if eligible, pursue the expunction.

An expunction, also called expungement, is a process ordered by the court in which one’s criminal record is “sealed”, or erased.

Thanks to Gov. Roy Cooper who ratified Senate Bill 445 on July 28, 2017, the accessibility of the expunction process will be improved drastically for about 2 million North Carolinians who currently have a criminal record effective December 1, 2017.  Here are the two expungements we mostly pursued in our office:

1. Expungement of records when charges were dismissed pursuant to N.C.G.S. §15A-146

There will no longer be a limit on how many expunctions one can pursue—the only condition will be that one “had not previously been convicted of any felony under the laws of the United States, this State, or any other state”.

2. Expunction of “nonviolent” misdemeanors and felonies pursuant to N.C.G.S. §15A-145.5

In order to qualify for an expunction under this section, one may not have “other misdemeanor or felony convictions, other than a traffic violation”.  While under the current law, one needs to wait 15 years after the date of the conviction or “when any active sentence, period of probation, and post-release supervision has been served, whichever occurs later” , under the new law that wait time will be reduced to just five years for misdemeanors and ten years for felonies.

If you or someone you know have a criminal record and consider pursuing an expungement in New Hanover, Pender, or Brunswick Counties, North Carolina, call Collins Law Firm at (910) 793-9000 for a confidential consultation.

By Jana H. Collins, Office Manager

The Wrightsville Beach 32nd annual North Carolina Holiday Flotilla is upon us! Many Wilmingtonians look forward to this water-based event every Thanksgiving weekend, as family and friends come together to eat, drink, and celebrate the holiday together. Whether you have a boat entered in the contest or will be watching from land, it may be beneficial for you to be up-to-date on North Carolina’s laws against Boating While Impaired, commonly referred to as “BUI” or “BWI”.

G.S. 75A-10(b1) forbids the operation of any vessel while on NC waters under the following circumstances: (1) while under the influence of an impairing substance; or (2) after having consumed sufficient alcohol that the person has, at any relevant time after the boating, an alcohol concentration of 0.08 or more. Additionally, G.S. 75A-10(b) bars a person from “manipulat[ing] any water skis, surfboard, nonmotorized vessel, or similar device on the waters of this State while under the influence of an impairing substance.” One charged in violation of either of these two statutes is subject to being convicted of a Class 2 misdemeanor.

There are many similarities between the laws and consequences associated with DWIs and BWIs. One major difference, however, is that a BWI is not an implied consent offense – meaning, that while operating a vessel/surfboard/waterskii, you are not required by law to consent to a breathalyzer test as you are when suspected of drinking and driving. So what happens if your boat is pulled over and you are asked by an official to “blow” into the breathalyzer? In NC, this situation is more an analysis of the Fourth Amendment (prohibits unreasonable searches and seizures), rather than a statutory regulation. If one consents to a breathalyzer, obviously the need for a warrant is void. But keep in mind, refusing a breathalyzer may carry a double-edged sword in the likely event that upon refusal, the official becomes more suspicious and aggravated and thus proceeds to obtain a warrant. As decided by State v. Fletcher (2010), if an official suspects that one’s blood alcohol content may decrease while trying to obtain a search warrant, he or she is permitted to conduct a blood alcohol concentration test.
If convicted of a BWI, the consequences aren’t favorable. This charge isn’t one that you can simply pay off like a traffic ticket, but rather, a misdemeanor that will remain on the record for the rest of your life. Recreational boaters are subject to have their boater license suspended and face insurance increases, for both the boat and all automobiles on the policy.

It is best to treat operating a boat just as you would a vehicle – don’t drink and drive! Nonetheless, if you or someone you know is caught in a situation such as this or similar, call us today to schedule a consultation to speak with our knowledgeable and experienced attorney (910) 793-9000.

By Amber Younce, Legal Assistant

As a prelude to this text, please keep in mind that we are referencing DWIs currently eligible for expunction (i.e., those convicted of a DWI that were released from supervision 15 or more years ago) under N.C.G.S. § 15A-145.5.

The window of opportunity for having your DWI conviction expunged is closing fast! Under S.L. 2015-150, DWIs will no longer be eligible for expunction in North Carolina as of December 1, 2015. Whether you plan to file a new petition or you have a petition pending, as of December 1st there will be no questions as to whether your request for DWI expungement will be granted or denied.

Interestingly enough, it will be exactly 3 years on December 1, 2015 since North Carolina passed a law permitting the expungement of DWIs, under N.C.G.S. § 15A-145.5—certainly not much time to have your DWI expunged!

We’ve mentioned in previous posts the severity of DWI consequences in North Carolina. If you or someone you know was released from DWI supervision 15 or more years ago, please call us at 910-793-9000 to discuss your expungement eligibility. Here at Collins Law Firm, time is of the essence! Call us today to schedule a consultation.

By Amber Younce, Legal Assistant

A new policy in the Fifth Prosecutorial District that affects youths charged with underage drinking has gone into effect as of late November of 2014. This new policy will reshape the requirements for those who enter into a deferred prosecution agreement for an underage drinking charge. The goal of this new program is to help young offenders by teaching them the risks and consequences of underage alcohol consumption as well as avoiding a permanent mark on their criminal record. This program will only be offered to first time offenders that have not previously been convicted of any drug or alcohol crimes.

The requirements include, but are not limited to, 12 months of unsupervised probation, observation of DWI Treatment Court, participation in the Youth Offender Course at New Hanover Regional Medical Center and the Street Safe Alcohol Education Program (followed with an reflection essay), and Community Service.

The eligible offenses for the new Underage Alcohol Deferred Prosecution Program are as follows:

If you or someone you know has received an underage drinking ticket, or any of the above listed charges in Southeastern North Carolina, then call the experienced team at Collins Law Firm for a confidential consultation at:  910-793-9000.

By Rachel Reynolds,  Paralegal

While preferences vary when it comes to transportation, everyone is a pedestrian at some time, and most know to keep their distance from moving traffic. Unfortunately, according to data released by the National Highway Traffic Safety Administration, about 69,000 pedestrians got hurt and 4,432 were killed in traffic crashes in the United States in 2011. This means that on average every two hours a pedestrian was killed and about every eight minutes, a pedestrian got hurt in traffic in 2011.

In North Carolina alone more than 2,400 pedestrians are hit by vehicles each year, about 160 out of this number are killed. This number represents about 12% of all traffic fatalities that occur on North Carolina roads.

While Pedestrians should not rely on their rights in traffic being observed by drivers, drivers need to be aware of pedestrians’ rights and the traffic laws protecting the weakest of our road users, and drivers need to pay attention especially to young children and older adults, because they are more likely to stray outside crosswalks and not pay attention to traffic signals or the traffic in general.

Pedestrians’ rights and duties are addressed in Chapter 20, Article 3, Part 11 of the North Carolina General Statutes (hereinafter N.C.G.S.).

N.C.G.S. § 20-172 Pedestrians subject to traffic-control signals.

(a) The Board of Transportation, with reference to State highways, and local authorities, with reference to highways under their jurisdiction, are hereby authorized to erect or install, at intersections or other appropriate places, special pedestrian control signals exhibiting the words or symbols “WALK” or “DON’T WALK” as a part of a system of traffic-control signals or devices.

(b) Whenever special pedestrian-control signals are in place, such signals shall indicate as follows:

(1) WALK. – Pedestrians facing such signal may proceed across the highway in the direction of the signal and shall be given the right-of-way by the drivers of all vehicles.

(2) DON’T WALK. – No pedestrian shall start to cross the highway in the direction of such signal, but any pedestrian who has partially completed his crossing on the “WALK” signal shall proceed to a sidewalk or safety island while the “DON’T WALK” signal is showing.

(c) Where a system of traffic-control signals or devices does not include special pedestrian-control signals, pedestrians shall be subject to the vehicular traffic-control signals or devices as they apply to pedestrian traffic.

(d) At places without traffic-control signals or devices, pedestrians shall be accorded the privileges and shall be subject to the restrictions stated in Part 11 of this Article.

N.C.G.S. § 20-173 Pedestrians’ right-of-way at crosswalks

(a) Where traffic-control signals are not in place or in operation the driver of a vehicle shall yield the right-of-way, slowing down or stopping if need be to so yield, to a pedestrian crossing the roadway within any marked crosswalk or within any unmarked crosswalk at or near an intersection, except as otherwise provided in Part 11 of this Article.

(b) Whenever any vehicle is stopped at a marked crosswalk or at any unmarked crosswalk at an intersection to permit a pedestrian to cross the roadway, the driver of any other vehicle approaching from the rear shall not overtake and pass such stopped vehicle.

(c) The driver of a vehicle emerging from or entering an alley, building entrance, private road, or driveway shall yield the right-of-way to any pedestrian, or person riding a bicycle, approaching on any sidewalk or walkway extending across such alley, building entrance, road, or driveway.

N.C.G.S. § 20-174 Crossing at other than crosswalks; walking along highway

(a) Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles upon the roadway.

(b) Any pedestrian crossing a roadway at a point where a pedestrian tunnel or overhead pedestrian crossing has been provided shall yield the right-of-way to all vehicles upon the roadway.

(c) Between adjacent intersections at which traffic-control signals are in operation pedestrians shall not cross at any place except in a marked crosswalk.

(d) Where sidewalks are provided, it shall be unlawful for any pedestrian to walk along and upon an adjacent roadway. Where sidewalks are not provided, any pedestrian walking along and upon a highway shall, when practicable, walk only on the extreme left of the roadway or its shoulder facing traffic which may approach from the opposite direction. Such pedestrian shall yield the right-of-way to approaching traffic.

(e) Notwithstanding the provisions of this section, every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway, and shall give warning by sounding the horn when necessary, and shall exercise proper precaution upon observing any child or any confused or incapacitated person upon a roadway.

Failure to obey any these laws is an infraction pursuant to N.C.G.S. § 20-176 (a) and if convicted, punishable to pay a fine of up to one hundred dollars ($100) pursuant to N.C.G.S. § 20-176 (b).

If you or someone you know is charged with an infraction in Southeastern North Carolina, in or around Wilmington, NC in New Hanover County, Brunswick County, or Pender County, and call the experienced team at Collins Law Firm for a confidential consultation at:  910-793-9000.

By Jana H. Collins, Office Manager

Driving slowly in the left hand lane is not just a pet peeve, but causes a hazard by negatively impacting the flow of traffic.

This forces faster moving traffic to pass in the right hand lane. Drivers hoping to pass a slow left hand lane driver often signal a lane change toward the center median, flash headlights, or drive very close to the bumper to the slow left hand lane driver, which is known as tailgating.

The left hand lane which is also referred to as the fast lane, inside lane, or passing lane is reserved for faster moving vehicles wishing to pass or overtake. The United States Uniform Vehicle Code states the following: “Upon all roadways any vehicle proceeding at less than the normal speed of traffic at the time and place and under the conditions then existing shall be driven in the right-hand lane then available for traffic.”

Some states, including North Carolina, have made it illegal to drive slowly in the left hand lane and fail to yield to traffic that seeks to overtake.

In North Carolina, travel on a multi-lane roadway is governed by N.C.G.S. §20-146(b):

Upon all highways any vehicle proceeding at less than the legal maximum speed limit shall be driven in the right-hand lane then available for thru traffic, or as close as practicable to the right-hand curb or edge of the highway, except when overtaking and passing another vehicle proceeding in the same direction or when preparing for a left turn.

A violation of this law is an infraction pursuant to N.C.G.S. §20-176 (a) and if convicted, North Carolina Division of Motor Vehicle would assess 2 drivers license points pursuant to N.C.G.S. §20-16 (c), or 3drivers license points if the violation occurred during the operation of a commercial motor vehicle.

Most of the laws prohibiting driving slowly in the left hand lane however seem to only be enforced to stop suspicious vehicles or passengers.

Generally, one should always be aware of their surroundings especially while driving and move lanes if they find themselves holding up traffic – the choice to travel in the right hand lane should be made already out of consideration for other travelers, to increase traffic safety, to reduce traffic congestion, and to improve emergency response.

By Jana H. Collins, Office Manager

Heroin is a highly physiologically addictive narcotic derivative of morphine but has a higher potency than morphine. C.R. Alder Wright – an English chemistry and physics researcher in London – was the first to synthesize heroin in 1847. Heroin usually appears as a white or brown powder or as a black sticky substance, known as “black tar heroin.” The name Heroin stems from Bayer, the German Pharmaceutical Company. Bayer named the first diamorphine product Heroin and made its first fortunes in the late 1890s when it commercialized heroin as cough, cold and pain remedy.

The medical use of heroin is prohibited in the United States, because its unwanted effects, i.e. miscarriages, heart infections, and death exceed its values. Heroin however is used illicitly for its euphoric effects and its use is on the rise nationwide.

In the eastern part of North Carolina, law enforcement officials report that the use of heroin, especially amongst high school students, has increased immensely as it has not been seen in decades. For example, while the Police Department of Wilmington, NC, had 12 people arrested for carrying heroin in 2003, the number was almost twenty times as high in 2013 with 214 arrests.

The surge of heroin use appears to be the unintended side effect of the crackdown on the abuse of prescription drugs. While the crackdown on the prescription drug abuse resulted in a decrease of the illegal use of prescription drugs, it also caused some medications to become less available and thereby less affordable. Instead, many turned to a less pricy solution to get euphorically high – heroin.

Even though the use of heroin is at a historic high, experts predict that it has not yet reached the top as addicts are still to some degree able to obtain prescription drugs.

As heroin use may become more prominent in the nearer future, more people may get into a situation in which they may witness a drug related overdose that requires medical assistance. In such situations, limited immunity is extended to those, who seek medical assistance pursuant to N.C.G.S. §90-96.2.

As a heroin user, one does not only face medical and economic, but also legal consequences. Heroin is a Schedule II Controlled Substance pursuant to N.C.G.S. §90-90 (1) and its possession is punishable as a Class I felony pursuant to N.C.G.S. §90-95(a)(3). The sale of heroin is punishable as a Class G felony and the delivery or manufacture is punishable as a Class H felony pursuant to N.C.G.S. §90-95(a)(1).

If convicted of any of those charges, possible consequences are:

– Fines

– Jail or prison time

– Drug treatment/counseling

– Probation

– Difficult bread-winning

– Social stigma

– Permanent criminal record

If you or somebody you know are investigated or have been arrested or charged with a drug crime, you should seek legal counsel to examine all evidence and advise you as to whether accepting a plea deal or going to trial would be in your best interest.

If accepting a plea deal, participation in the Drug Treatment Court (hereinafter DTC) may be considered which is an intensive, highly structured program designed to identify and treat offenders whose criminal activities are generally related to substance abuse offered in 23 counties in North Carolina. Amongst those 23 counties are New Hanover and Brunswick County. In order to qualify for the participation in the DTC, the offender must:

• be addicted to a chemical substance,
• be willing to volunteer for the drug treatment court program, and
• be eligible under the state’s structured sentencing system for a community or intermediate punishment as an alternative to active prison time.

The mission of the DTC is to break the cycle of drug addiction by offering the tools to stay clean. Amongst others, those tools include counseling, housing, school, and employment assistance.

At Collins Law Firm we handle drug charges in New Hanover, Brunswick, and Pender County, and we have successfully defended clients against all types of drug crimes. The experienced team at Collins Law Firm is here for you – just a phone call away at 910-793-9000910-793-9000 .

By Jana H. Collins, Office Manager

In just a few weeks a new law will be going into effect in North Carolina called “The Hassani N. Wesley Students’ School Bus Safety Act.” This act was passed earlier this year, but is scheduled to come into effect on December 1^st, 2013. This bill will ultimately create harsher penalties for North Carolina drivers who illegally pass school buses.

The name of the bill originated from the unfortunate death of 11-year old, Hassani N. Wesley, who tragically died in December 2012 in Forsyth County, as he was struck by a vehicle which made an illegal pass of a stopped school bus. Unfortunately Hassani Wesley has not been the only fatality this calendar year – on October 17^th, 2013 MaKinzy Smith, a Rowan County teen was killed after he was hit by a car while crossing a two-lane road northeast of Salisbury to board his bus. Makinzy Smith’s death marked the 5^th fatality from school bus-related collisions this year and the 13^th student killed since 1998 in North Carolina after motorists illegally passed or did not heed a bus’s stop sign arm.

It goes without saying that everyone, state educators, politicians, and transportation authorities are welcoming the new law in hopes that the stricter punishments will change this growing statistic.

Pursuant to the current state law it is illegal to pass a stopped school bus  when a school bus’ mechanical stop arm is out or flashing red lights are on. Passing a stopped school bus is categorized as a misdemeanor, and if convicted, the driver will receive 5 points on their license and up to a $200 fine. However, if a driver strikes an individual it is categorized as a Class I felony and if the accident results in death it is then a Class H felony.

On December 1^st, 2013, under the Hassani N. Weslet Students’ School Bus Safety Act, a driver who passes a stopped school bus will be charged with a Class I misdemeanor and receive a minimum fine of $500 – a substantial increase from the previous $200 maximum.  In case of a second conviction under this new law within a three-year period one will have their driver’s license revoked for one year. If one is charges with a violation of this new law, they are not eligible for a prayer for judgment (P.J.C.) continued under any circumstances.

If you or anyone you know is charged with passing a stopped school bus, before or after December 1^st, 2013 then please contact Collins Law Firm at 910-793-9000910-793-9000 for a confidential consultation.

By Rachel Reynolds, Paralegal at Collins Law Firm

On August 12, 2013, United States Attorney General Eric Holder announced to the American Bar Association’s House of Delegates in San Francisco, an initiative to curb mandatory minimum drug sentences that the nation is “coldly efficient in jailing criminals,” but it “cannot prosecute or incarcerate” into becoming a safer country.  “Too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason,” Holder said .  The arguments about legalization of drugs in the US include health and social problems, potential tax revenue, and public safety concerns.  However, this speech by our Attorney General focused on alleviating an overburdened prison system housing non-violent people convicted and sentenced to very long prison terms for peaceful drug crimes.  Regarding the debate over legalization, the nation has moved from the question of “if” to the more tangible question of “how,” said Beau Kilmer, co-director of the RAND Drug Policy Research Center and co-author of “Marijuana Legalization: What Everyone Needs to Know.”

A Pew Research Center poll in 1969 indicated that 12% of Americans supported the legalization of marijuana, and the same study estimated that at that time, four in 100 Americans had recently smoked marijuana. In 2013, a Gallup poll found that the number of Americans supporting legalization had risen to almost 50%.  In recent years, 20 states plus the District of Columbia have legalized medical marijuana.  Colorado and Washington State have legalized marijuana for recreational use.  Oregon is likely to do so in the near future. According to the National Organization for the Reform of Marijuana Laws (NORMAL), sixteen States have decriminalized possession of small quantities of marijuana beginning in the early 1970’s.

Recently the National Institute on Drug Abuse (NIDA) has begun to comment on increasing sentiment of Americans for the legalization or at the least liberalization of marijuana laws.  In response to a campaign by the Marijuana Policy Project, which stated that marijuana is “less toxic” than alcohol, NIDA said that:  “Claiming that marijuana is less toxic than alcohol cannot be substantiated since each possess their own unique set of risks and consequences for a given individual.” PolitiFact, which fact-checks claims made by politicians and special interest groups agreed that the claim that marijuana is less toxic than alcohol was “mostly true.”  They quoted studies from the Centers for Disease Control’s (CDC) National Center for Health Statistics which revealed that more than 41,000 deaths were tied to alcohol in 2010, while zero were reportedly linked to marijuana. In addition, the CDC lists “1.2 million emergency room visits and 2.7 million physician office visits due to excessive drinking.”  None were reported due to excessive marijuana use.

Mark Kleiman is a UCLA public policy professor who has been asked by government officials to help fashion the legal framework for Washington’s recreational marijuana business.  He said about Arkansas’ recent medical marijuana vote which failed by a close 51% to 49% vote:  “When 49% of voters in Arkansas are voting for legal pot, we aren’t in Kansas anymore.”

However, President Barack Obama’s drug czar, Gil Kerlikowske, was quoted in 2010 as saying that the push towards legalizing marijuana was a “nonstarter.”  The Office of National Drug Control Policy indicates that his statement holds true today.  But at the same time, the Office of National Drug Control Policy emphasizes that the administration’s 2013 drug policy takes a new tack with the realization that America can’t arrest its way out of its longtime drug epidemic.  The Administration’s new policy, announced in April, favors “prevention over incarceration, science over dogma and diversion for nonviolent offenders.” And they continue to say that arguments for marijuana legalization “run counter to public health and safety concerns.”

Meanwhile the federal government’s stand is moving slowly, the states are expected to continue leading the movement towards legalization. Alaska will likely put a complete legalization ballot before voters next year, and Maine, Rhode Island, California and Oregon may give voters the option in 2016.  “I think a lot’s going to depend on how legalization plays out in Colorado and Washington — also, how the federal government responds,” Kilmer said. “We still haven’t heard how they’re going to address commercial production facilities in those states.”  The next White House administration could take a harsher stance against the state’s movement towards legalization.  One thing is clear – the nation is a lot closer to the repeal of prohibition of marijuana than it has been in many decades.

This wave of changes in our country does not diminish the fact that possession of marijuana is still illegal in North Carolina – a misdemeanor for less than an once and a half, and a felony for quantities greater than an once and a half.  If you are charged with the illegal possession of any drug, or other contraband in or around the Wilmington NC area, call Collins Law Firm at 910-793-9000910-793-9000 for a confidential consultation about how we can help.