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Archive for February, 2011

Underage Drinking and Possession of Alcohol in North Carolina

Friday, February 25th, 2011

In North Carolina, laws concerning the sale, possession, and consumption of alcoholic beverages are contained in N.C.G.S. Chapter 18B entitled “Regulation of Alcoholic Beverages.” (§§ 18B-100 – 18B-1308) and (§§ 18B-300 – 18B-399).  Convictions for most violations of these provisions are subject to punishment for either a class one misdemeanor (punishable by a maximum of 120 days in jail) or a class two misdemeanor (punishable by a maximum of 60 days in jail).  Further, a conviction for a violation of 18B-302(c), (e), or (f) will result in the person’s NC drivers license being revoked for one year.  See N.C.G.S. § 20-17.3 entitled “Revocation for Underage Purchasers of Alcohol.”

Section 18B-302 provides that “the court shall file a conviction report with the Division of Motor Vehicles indicating the name of the person convicted and any other information requested by the Division if the person is convicted of any of the following: (1) A violation of subsection (e) or (f) of this section. (2) A violation of subsection (c) of this section. (3) A violation of subsection (b) of this section, if the violation occurred while the person was purchasing or attempting to purchase an alcoholic beverage. (4) A violation of subsection (a1) of this section. Upon receipt of a conviction report, the Division shall revoke the person’s license as required by G.S. 20-17.3.”

The relevant portions of the statutes prohibiting certain conduct are contained in § 18B-302 entitled “Sale to or purchase by underage persons,” which provide as follows:

(a) Sale. – It shall be unlawful for any person to: (1) Sell malt beverages or unfortified wine to anyone less than 21 years old; or (2) Sell fortified wine, spirituous liquor, or mixed beverages to anyone less than 21 years old. (a1) Give. – It shall be unlawful for any person to: (1) Give malt beverages or unfortified wine to anyone less than 21 years old; or (2) Give fortified wine, spirituous liquor, or mixed beverages to anyone less than 21 years old. (b) Purchase, Possession, or Consumption. – It shall be unlawful for: (1) A person less than 21 years old to purchase, to attempt to purchase, or to possess malt beverages or unfortified wine; or (2) A person less than 21 years old to purchase, to attempt to purchase, or to possess fortified wine, spirituous liquor, or mixed beverages; or (3) A person less than 21 years old to consume any alcoholic beverage. (c) Aider and Abettor. (1) By Underage Person. – Any person who is under the lawful age to purchase and who aids or abets another in violation of subsection (a), (a1), or (b) of this section shall be guilty of a Class 2 misdemeanor. (2) By Person over Lawful Age. – Any person who is over the lawful age to purchase and who aids or abets another in violation of subsection (a), (a1), or (b) of this section shall be guilty of a Class 1 misdemeanor.  (e) Fraudulent Use of Identification. – It shall be unlawful for any person to enter or attempt to enter a place where alcoholic beverages are sold or consumed, or to obtain or attempt to obtain alcoholic beverages, or to obtain or attempt to obtain permission to purchase alcoholic beverages, in violation of subsection (b) of this section, by using or attempting to use any of the following: (1) A fraudulent or altered drivers license. (2) A fraudulent or altered identification document other than a drivers license. (3) A drivers license issued to another person. (4) An identification document other than a drivers license issued to another person. (5) Any other form or means of identification that indicates or symbolizes that the person is not prohibited from purchasing or possessing alcoholic beverages under this section. (f) Allowing Use of Identification. – It shall be unlawful for any person to permit the use of the person’s drivers license or any other form of identification of any kind issued or given to the person by any other person who violates or attempts to violate subsection (b) of this section.

However, just because you have been charged with underage drinking or any violation of the NC alcohol laws, or any law, doesn’t necessarily mean you will be convicted.  Collins Law Firm has represented hundreds of people charged with violating the laws regarding the sale, possession, and consumption of alcohol since 1998, and in most cases, especially for first time offenders, we have been able to avoid convictions.  Currently, in most cases for first time offenders, even if there is no solid defense, we are able to negotiate an agreement with law enforcement officer and the district attorney’s office to have the charges dismissed after the defendant completes a certain number of hours of volunteer service, or completing an class about alcohol and the laws regarding alcohol, or other requirements, or a combination thereof. In most cases where there is a solid defense, we are able to have the charges dismissed without our clients having to perform any community service or complete classes.

If you have been charged with any crime in Southeastern North Carolina, in or around Wilmington NC in New Hanover County, Brunswick County, or Pender County, and need a lawyer or attorney to represent you, call us for a confidential consultation at:  910-793-9000.

Statutory Lien

Wednesday, February 16th, 2011

Since 1935, in North Carolina, there has been a statutory lien upon sums of money recovered as damages for personal injury claims. “This lien is in favor of any person, corporation, State entity, municipal corporation or county to whom the person so recovering, or the person in whose behalf the recovery has been made, may be indebted for any drugs, medical supplies, ambulance services, services rendered by any physician, dentist, nurse, or hospital, or hospital attention or services rendered in connection with the injury in compensation for which the damages have been recovered. Where damages are recovered for and in behalf of minors or persons non compos mentis, the liens shall attach to the sum recovered as fully as if the person were sui juris.” . N.C.G.S § 44-49.

N.C.G.S § 44-50 provides that “lien provided for shall in no case, exclusive of attorneys’ fees, exceed fifty percent (50%) of the amount of damages recovered.” North Carolina Baptist Hospitals, Inc. v. Crowson, 155 N.C.App. 746, 573 S.E.2d 922 (N.C.App. 2003) provided that the medical providers did not have to be paid in a pro rata manner. That case held that: “The dispositive issue on appeal is whether sections 44-49 and 44-50 of the North Carolina General Statutes prohibit an attorney from disbursing funds recovered from the settlement of a personal injury lawsuit in a non-proportional manner where there are multiple medical service providers holding equally valid liens upon such settlement funds and insufficient funds to compensate all lien holders. Because we conclude that sections 44-49 and 44-50 do not require a pro rata disbursement of funds, we affirm the order of the trial court granting summary judgment in favor of defendant.”

However, in 2003, the North Carolina Legislature passed a new section which requires pro rata distribution.   N.C.G.S. § 44-50.1, entitled “Accounting of disbursements; attorney’s fees to enforce lien rights” provides that “Notwithstanding any confidentiality agreement entered into between the injured person and the payor of proceeds as settlement of compensation for injuries, upon the lienholder’s written request and the lienholder’s written agreement to be bound by any confidentiality agreements regarding the contents of the accounting, any person distributing funds to a lienholder under this Article in an amount less than the amount claimed by that lienholder shall provide to that lienholder a certification with sufficient information to demonstrate that the distribution was pro rata and consistent with this Article. If the person distributing settlement or judgment proceeds is an attorney, the accounting required by this section is not a breach of the attorney-client privilege.”  N.C.G.S. § 44-50.1.  “The certification under subsection (a) of this section shall include a statement of all of the following: (1) The total amount of the settlement. (2) The total distribution to lienholders, the amount of each lien claimed, and the percentage of each lien paid. (3) The total attorney’s fees.

These statutes are part of the laws regulating the pursuit and settlement of personal injury claims in North Carolina. If you or someone you know has been injured in an automobile accident through no fault of their own, call Collins Law Firm for a free consultation at: 910-793-9000.

Liability for Dog Bite Injuries

Friday, February 11th, 2011

North Carolina law provides that the owner of a “dangerous dog” can be strictly liable for injuries from a dog bite under N.C. Gen. Stat. §67-4.4. In order to recover damages, the plaintiff must prove that the dog that bit them was a “dangerous dog.” N.C.G.S §67-4.1(a)(1) defines ‘dangerous dog’ as:

  1. A dog that:
    1. Without provocation has killed or inflicted severe injury on a person; or
    2. Is determined by the person or Board designated by the county or municipal authority responsible for animal control to be potentially dangerous because the dog has engaged in one or more of the behaviors listed in subdivision (2) of this subsection.
  2. Any dog owned or harbored primarily or in part for the purpose of dog fighting, or any dog trained for dog fighting. N.C.G.S. §67-4.1(a)(1)(d) provides exceptions for the following dogs from being classified as ‘dangerous dogs’ or ‘potentially dangerous dogs’ under the statute:

Dog Bite

(1) A dog being used by a law enforcement officer to carry out the law enforcement officer’s official duties;

(2) A dog being used in a lawful hunt;

(3) A dog where the injury or damage inflicted by the dog was sustained by a domestic animal while the dog was working as a hunting dog, herding dog, or predator control dog on the property of, or under the control of, its owner or keeper, and the damage or injury was to a species or type of domestic animal appropriate to the work of the dog; or

(4) A dog where the injury inflicted by the dog was sustained by a person who, at the time of the injury, was committing a willful trespass or other tort, was tormenting, abusing, or assaulting the dog, had tormented, abused, or assaulted the dog, or was committing or attempting to commit a crime.

N.C.G.S § 67-4.1 provides that certain dogs may be classified as “potentially dangerous dogs” by a “Board designated by the county or municipal authority responsible for animal control.” N.C.G.S § 67-4.1(a)(2) also provides that the Board or a person should consider the following factors to determine if a dog is potentially dangerous:

  1. Inflicted a bite on a person that resulted in broken bones or disfiguring lacerations or required cosmetic surgery or hospitalization; or
  2. Killed or inflicted severe injury upon a domestic animal when not on the owner’s real property; or
  3. Approached a person when not on the owner’s property in a vicious or terrorizing manner in an apparent attitude of attack.

If a plaintiff is bitten by a “dangerous dog,” the owner of the dog may be held strictly liable for damages.

Negligence

Even if the dog is not determined to be a “dangerous dog,” one can still recover damages under the theory of negligence. To prove negligence, the plaintiff must show that the defendant was keeping an “animal with the knowledge of its viciousness.” Lee v. Rice, 154 N.C. App. 471, 472 (2002).

Under this theory, a plaintiff can recover compensation for their damages if they can prove two elements: “(1) that the animal was dangerous, vicious, mischievous, or ferocious, or one termed in law as possessing a vicious propensity; and (2) that the owner or keeper knew or should have known of the animal’s vicious propensity, character, and habits.” Lee v. Rice, 154 N.C. App. 471, 472 (2002). (quoting Sellers v. Morris, 233 N.C. 560,561 (1951).)

Negligence Per Se

Negligence per se may apply if the owner or keeper of the dog had violated a local ordinance or state law. In Swaney v. Shaw, the court found that ‘the violation of a statute which imposes a duty upon the defendant in order to promote the safety of others, including the plaintiff, is negligence per se, unless the statute, itself otherwise provides.’ 27 N.C. App. 631, 635 (1975). (quoting Ratliffe v. Power Co., 268 N.C. 605, 610 (1966).)

Many counties and cities have local laws regarding dangerous dogs. N.C.G.S. § 130A-200 provides that: “A local health director may declare an animal to be vicious and a menace to the public health when the animal has attacked a person causing bodily harm without being teased, molested, provoked, beaten, tortured or otherwise harmed. When an animal has been declared to be vicious and a menace to the public health, the local health director shall order the animal to be confined to its owner’s property. However, the animal may be permitted to leave its owner’s property when accompanied by a responsible adult and restrained on a leash.”

If you have sustained injuries after having been bitten by a dog or other dangerous animal, call Collins Law Firm for a consultation at 910-793-9000. We have represented victims of dog bites and recovered money damages for our clients, and we will be happy to talk with you about your case.

New Law Permitting Collection of DNA Takes Effect Today – February 1, 2011 in North Carolina

Tuesday, February 1st, 2011

DNA SwabA new North Carolina law, N.C.G.S. § 15A-266.3A entitled “The DNA Database Act of 2010” takes effect today, Tuesday, February 1, 2011.

The law permits law enforcement officers to take swabs to collect a person’s DNA when a defendant is arrested, and before they are convicted, for certain crimes, including both felonies and misdemeanors. Examples include such offenses as first degree murder, second degree murder, some sexual offenses, manslaughter, assaults, kidnapping, stalking, and burglaries. The law has provisions for removal of a defendant’s DNA from the database if the person is acquitted of the charges which qualify the defendant’s DNA from being taken under the new law. At least 20 other states have similar laws on the books, including Virginia.

While the new law will most certainly help solve crimes, and especially cold crimes because of the increased collection of DNA samples, some find the new law controversial because it allows for the collection of DNA before the defendants are convicted. The new laws allowing DNA collection without convictions implicate Fourth Amendment issues for the criminal justice system. Good discussions about these issues can be found in the UNC School of Government Blog on Criminal Law and in bulletins by the National Institute of Justice.