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Maritime or Admiralty Law

Thursday, June 28th, 2018

Maritime law, better known as Admiralty law, is a body of law concerning behaviors and activities on the sea. Admiralty law governs the interactions of those who conduct business on the water. Primarily the focus is on international waters, but laws are applied to waters in and around each country.

Americans are often unaware that when they board a cruise ship there are admiralty laws that apply to them. These laws affect everyone that travels on the high seas. They regulate many situations including commerce, navigation, lost cargo, leisure travel and the interactions between seamen and their employers.

Admiralty law is a mix of international agreements and domestic laws. In the United States, this law mostly falls under the federal law. There are instances where it could go to state court, such as personal injury cases that occur on the seas.

There are several rules and principles that apply to actives on the high seas such as maintenance and care, duties to passengers, liens and mortgages, salvage and treasure, and lifesaving on the high seas.  Maintenance and care refers to a situation where a seaman is in service to an employer and the right they have to appropriate injury care.  A seaman has the right to treatment until their journey ends.  Duties to passengers include passengers on a ship that have the right to reasonable care while on the ship.  When a contract disagreement arises involving companies that do business on international water they must have a forum to resolve the issue, which is the liens and mortgages principle. The salvage and treasure principle is when a party recovers lost treasure and other lost cargo, and a question arises as to how to fairly divide the recovered possessions.  Lastly, lifesaving on the high seas refers to there being no salvage for saving a life. Seamen are expected to do their absolute best to save the life of anyone in danger on the high seas.

The U.S. Coast Guard enforces the admiralty laws within their jurisdiction.  In the United States, the Coast Guard has jurisdiction up to 12 miles from our coast, and another limited jurisdiction for 12 miles beyond the initial 12 miles.

Remember when you’re out on the boat for the July 4th holiday that Admiralty laws apply to you and everyone else who finds themselves at sea. Should you or someone you know becomes injured on the water, call the professionals at Collins Law Firm at 910-793-9000 for a confidential consultation.

By Haley Rouse, Legal Assistant

DOT & Dangerous Roads Injuries

Thursday, April 19th, 2018

The North Carolina Department of Transportation (NCDOT) is one of the state’s largest agencies and its responsibilities include building, repairing, and operating all kinds of transportation within the state of North Carolina – i.e. highways, railroads, aviation, ferries, public transit, bike paths, and pedestrian walkways.

The department is led by the secretary of transportation who is a member of the governor’s cabinet.

N.C.G.S. § 143B-346 defines the purpose and functions of the NC DOT as follows:

The general purpose of the Department of Transportation is to provide for the necessary planning, construction, maintenance, and operation of an integrated statewide transportation system for the economical and safe transportation of people and goods as provided for by law. The Department shall also provide and maintain an accurate register of transportation vehicles as provided by statutes, and the Department shall enforce the laws of this State relating to transportation safety assigned to the Department. The Department of Transportation shall be responsible for all of the transportation functions of the executive branch of the State as provided by law except those functions delegated to the Utilities Commission and the Commissioners of Navigation and Pilotage as provided for by Chapter 76. The major transportation functions include aeronautics, highways, mass transportation, motor vehicles, and transportation safety as provided for by State law. The Department of Transportation shall succeed to all functions vested in the Board of Transportation and the Department of Motor Vehicles on July 1, 1977.

While the state and local governments are generally protected from all kinds of lawsuits based on both sovereign and governmental immunity which derived from the English concept that the “king can do no wrong,” the state has waived its immunity against tort claims as provided by N.C.G.S. § 143-291, which reads as follows:

(a) The North Carolina Industrial Commission is hereby constituted a court for the purpose of hearing and passing upon tort claims against the State Board of Education, the Board of Transportation, and all other departments, institutions and agencies of the State. The Industrial Commission shall determine whether or not each individual claim arose as a result of the negligence of any officer, employee, involuntary servant or agent of the State while acting within the scope of his office, employment, service, agency or authority, under circumstances where the State of North Carolina, if a private person, would be liable to the claimant in accordance with the laws of North Carolina. If the Commission finds that there was negligence on the part of an officer, employee, involuntary servant or agent of the State while acting within the scope of his office, employment, service, agency or authority that was the proximate cause of the injury and that there was no contributory negligence on the part of the claimant or the person in whose behalf the claim is asserted, the Commission shall determine the amount of damages that the claimant is entitled to be paid, including medical and other expenses, and by appropriate order direct the payment of damages as provided in subsection (a1) of this section, but in no event shall the amount of damages awarded exceed the amounts authorized in G.S. 143-299.2 cumulatively to all claimants on account of injury and damage to any one person arising out of a single occurrence. Community colleges and technical colleges shall be deemed State agencies for purposes of this Article. The fact that a claim may be brought under more than one Article under this Chapter shall not increase the foregoing maximum liability of the State.

(a1) The unit of State government that employed the employee at the time the cause of action arose shall pay the first one hundred fifty thousand dollars ($150,000) of liability, and the balance of any payment owed shall be paid in accordance with G.S. 143-299.4.

 (b) If a State agency, otherwise authorized to purchase insurance, purchases a policy of commercial liability insurance providing coverage in an amount at least equal to the limits of the State Tort Claims Act, such insurance coverage shall be in lieu of the State’s obligation for payment under this Article.

 (c) The North Carolina High School Athletic Association, Inc., is a State agency for purposes of this Article, and its liability in tort shall be only under this Article. This subsection does not extend to any independent contractor of the Association. The Association shall be obligated for payments under this Article, through the purchase of commercial insurance or otherwise, in lieu of any responsibility of the State or The University of North Carolina for this payment. The Association shall be similarly obligated to reimburse or have reimbursed the Department of Justice for any expenses in defending any claim against the Association under this Article.

 (d) Liability in tort of the State Health Plan for Teachers and State Employees for noncertifications as defined under G.S. 58-50-61 shall be only under this Article.

The Industrial Commission has exclusive, original jurisdiction over claims covered by the Tort Claims Act. Payments by the state under the Tort Claims Act are limited to one million dollars ($1,000,000.00) as provided by N.C.G.S. § 143-299.2:

(a) The maximum amount that the State may pay cumulatively to all claimants on account of injury and damage to any one person arising out of any one occurrence, whether the NC General Statutes – Chapter 143 Article 31 7 claim or claims are brought under this Article, or Article 31A or Article 31B of this Chapter, shall be one million dollars ($1,000,000), less any commercial liability insurance purchased by the State and applicable to the claim or claims under G.S. 143-291(b), 143-300.6(c), or 143-300.16(c).

(b) The fact that a claim or claims may be brought under more than one Article under this Chapter shall not increase the above maximum liability of the State.

Collins Law Firm along with H. Mitchell Baker, III, have experience in bringing action under the Tort Claims Act based on the NCDOT’s failure to have adequate signage or warnings in place to notify and warn motorists of upcoming intersections, or based on the NC DOT’s breach of its duty to keep the public streets open for travel and free from unnecessary obstructions.

If you or someone you know and care about has been injured due to negligence by NCDOT, please call Collins Law Firm at 910-793-9000 for a free confidential consultation.

By Jana H. Collins

Expungement in North Carolina – a second chance made easier

Saturday, August 5th, 2017

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”.

  1. 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

 

 

 

 

Think Twice Before Using a Fake ID

Tuesday, September 20th, 2016

fake-idYou may want to think twice before using a fake ID in New Hanover or Pender County from now on.  Starting October 1, you will face more penalties in court if you are caught using a fake ID.

District Attorney Ben David announced some changes to the underage drinking deferred prosecution program dealing with fake ID’s to try to make things a little bit more serious.  Today, the program includes a requirement where defendants have to go to New Hanover Regional Medical Center on a Friday night to be exposed to some of the trauma resulting from drinking and driving. They also are required to spend a couple of hours in DWI treatment court for educational purposes. In addition to these requirements, those who are charged with a fake ID offense after October 1st will have their license taken by the court for 60 days.

These changes are not only put in place to do things such as combat identity theft, but also to save lives.  Statistics show that other states that also enforce these types of programs have seen a 7% reduction in fatal accidents. When put into perspective, that is equal to saving one young person’s life per week.

Some people under the age of 21 pay nearly $200 to order a fake ID online and are giving away crucial information to their identity such as their social security and license number. Not only do these things put them at risk for identity theft themselves, but it is very dangerous. These ID’s have become extremely difficult to spot in the recent years, but bars, restaurants, grocery stores, etc. are starting to crack down and become better at detecting fake ID’s.

We encourage all high school and college students in New Hanover, Pender, Brunswick, and surrounding counties to be safe and never purchase or use a fake ID. However, should you find yourself in trouble and need to hire a lawyer or know of someone who does, Collins Law Firm can help. Give us a call at 910-793-9000 for a confidential consultation.

 

By Kimberlin Murray, Legal Assistant

 

NC Good Samaritin Law

Monday, April 18th, 2016

Help-Bring-Good-Samaritan-Laws-to-Your-State-Partnership-for-Drug-Free-KidsThe Good Samaritan Law (now effective in 20 states) went into effect in North Carolina on April 9, 2013. The basis for the law is overdose prevention and survival – get help, CALL 911! Individuals who experience or witness an overdose can now seek help for the victim without being prosecuted for small amounts of drugs/drug paraphernalia, or alcohol for persons under 21 years old under N.C. Gen. Stat. § 18B-302.2 Medical treatment; limited immunity. Additionally, as of August 1, 2015, a person who seeks medical assistance for someone experiencing a drug overdose cannot be considered in violation of probation, condition of parole, or post-release. Likewise, the victim is protected. In order for the immunity to apply, however, the 911 caller must provide his or her name, and act in good faith when seeking assistance, and reasonably believe that he or she is the first person to call for help.

According to a recent statewide survey conducted by the North Carolina Human Resources Center, 88% of North Carolinians say they feel more comfortable calling 911 with this law in effect. With over 44.000 people dying each year in the United States due to drug overdose, one can only hope that this law will help save lives in North Carolina.

By Amber Younce, Legal Assistant

Dealing With An EEOC Complaint

Friday, April 1st, 2016

EEOCWhen one files a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) it then becomes the agency’s responsibility to determine whether or not there is reason to believe that discrimination took place. Both the Charging Party (complainant) and the Respondent (defendant) are given an opportunity to provide information and explain what happened. The EEOC requests that the Respondent submit a statement of position, or position statement, with supporting evidence to prove why they do not deserve to be charged. Here are the guidelines, as recommended by the EEOC, on how to create an effective position statement:

  • Focus on the facts, be clear and concise.
  • Address each alleged discriminatory act and your position regarding it and provide copies of documents supporting your position and/or version of the events.
  • Provide a description of the organization; include the organization’s legal name and address, the name, address, title, telephone number and email address of the person responsible for responding to the charge, the primary nature of the business, and the number of employees. A staffing or organizational chart is also useful in helping to focus the investigation.
  • Provide any applicable practices, policies or procedures applicable to the allegations in the charge.
  • Identify any individuals other than the Charging Party who have been similarly affected by these practices, policies or procedures; describe the circumstances in which the practices, policies, or procedures have been applied.
  • Explain why individuals who were in a similar situation to the Charging Party were not similarly affected.
  • Identify official(s) who made decisions or took action relating to the matter(s) raised in the charge.
  • Be specific about date(s), action(s) and location(s) applicable to this case.
  • Provide internal investigations of the alleged incidents or grievance hearing reports.
  • Inform EEOC if the matter has been resolved or can be resolved; if it can be resolved, please indicate your proposal for resolution.

Please be mindful of confidential information when preparing the statement, described below:

Respondent should segregate the following information into separate attachments and designate them as follows:

  • Sensitive medical information (except for the Charging Party’s medical information).
  • Social Security Numbers.
  • Confidential commercial or confidential financial information.
  • Trade secrets information.
  • Non-relevant personally identifiable information of witnesses, comparators or third parties, for example, social security numbers, dates of birth in non-age cases, home addresses, personal phone numbers, personal email addresses, etc.
  • Any reference to charges filed against the Respondent by other charging parties.

Supporting documentary evidence is also important. You may submit statements or affidavits from witnesses with direct knowledge of the alleged events and/or from the alleged harasser responding to the Charging Party’s allegations.

By Amber Younce, Legal Assistant

Safekeeping in NC Jails and Prisons

Wednesday, November 25th, 2015

prisonSo often we hear about how overcrowded and dangerous United States jails are, and naturally, with that, safekeeping becomes more and more difficult for jail staff as the problem increases. How does jail staff maintain a safe environment for the inmates? Or even more interesting, what is staff to do when an individual inmate becomes unmanageable by behavior, illness, or vulnerability? The answer is pretty straightforward but the process is complicated. In this type of situation, jail staff submits a transfer request in hopes to have the inmate transferred from jail to the state prison, through what is known as a safekeeping order. Pursuant to G.S. 162-39, “the resident judge of the superior court or any judge holding superior court in the district or any district court judge may order the prisoner transferred to a fit and secure jail in some other county where the prisoner shall be held for such length of time as the judge may direct,” under the following circumstances (where the prisoner):

• Poses a serious escape risk;
• Exhibits uncontrollable, violently aggressive behavior;
• Needs to be protected from other inmates
• Is a woman, 18 years of age or younger, when the jail facility does not have adequate housing
• Is in custody at a time when a fire or other catastrophe causes the jail to cease operation
• Otherwise poses an imminent danger to the jail staff or other inmates.

If issued, the sheriff of the county (from which the prisoner be transported from jail to prison) is responsible for providing means of transportation, both to and from prison as applicable (i.e.—when the return date expires with respect to the judge’s order).

Confinement for safekeeping inmates is different than for the general population. For instance, they do not participate in work programs, they are not eligible for any type of sentence reduction, and they are held separately from the general inmate population. There are several types of facilities which house safekeepers in North Carolina, specific to age, medical needs, sex, and crime.

After an inmate has been transferred, the county from which the inmate was removed is responsible for paying the prison $40 per day, plus medical and some other health expenses. Just as jail staff can request than inmates be transferred to prison for safekeeping, inmates are permitted to submit the same type of request.

By Amber Younce, Legal Assistant

Holiday Flotilla & NC Boating While Impaired

Thursday, November 5th, 2015

BWIThe 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

Most Recent Execution by Capital Punishment

Friday, October 2nd, 2015

death-penaltyKelly Gissendaner was executed on Wednesday at 7pm, with respect to her sentence of the death penalty for engineering the murder of her husband in 1997, despite both her children and even Pope Carlo Francis’ wishes. After visiting the United States, the pope sincerely requested in writing that the state of Georgia not follow through with the execution of Ms. Gissendander as stated below:

“While not wishing to minimize the gravity of the crime for which Ms. Gissendander has been convicted, and while sympathizing with the victims, I nonetheless implore you, in consideration of the reasons that have been expressed to your board, to commute the sentence to one that would better express both justice and mercy,”

None of the last minute pleas were enough, and as a result, Ms. Gissendaner was the first person in 70 years to be executed by the death penalty in Georgia.

While talk is hot about the death penalty, some may be wondering, what is North Carolina’s history with the death penalty? And what are the laws associated with it?

The death penalty has been part of North Carolina Law since the state was a British colony, and at that time available as punishment for an array of crimes. Until the later part of the 20th century, the death penalty was permissible for crimes such as arson, burglary, rape, and murder. Since then, however, NC has limited the crimes eligible for capital punishment to cases only where another person is killed.

There has been a drop in the number of capital trials, death penalties, and executions in North Carolina in recent years. The last person to be executed on death row in North Carolina was Samuel Flippen, who was put to death on August 18, 2006 for the murder of his two-year-old stepdaughter.

As of March 30, 2012, according to the Division of Adult Correction, North Carolina held 157 inmates on death row. 153 of the 157 inmates on death row are men. Both the men and women are housed in Raleigh’s Central Prisons. All of these inmates have been on death row at least since the 1990s. North Carolina’s method of execution remains by lethal injection.

The laws regarding North Carolina’s death row policies and procedures are constantly changing, as this is an extremely controversial topic in government. In 2001, according to N.C.G.S. § 15A-2004, the General Assembly modified the statute to give prosecutors the option to decline seeking the death penalty. Those exempt from capital punishment are those who “suffer from a severe mental disorder or disability that significantly impaired his or her capacity to appreciate the nature, consequences, or wrongfulness of his or her conduct.” The minimum age for execution is 17.

Just this week, State Representative Jon Hardister (R) of Greensboro said he thinks the death penalty should be abolished because he doesn’t “trust the government to do it right.” He suggests that alternatively, NC should sentence to life in prison without parole. What are your thoughts on NC laws regarding capital punishment?

By Amber Younce, Legal Assistant

DWS – Driving While Stoned

Monday, March 17th, 2014

The New York Times recently published a story entitled “Driving Under the Influence, of Marijuana.” The story suggested that driving under the influence of marijuana (pot) is much less risky than driving while impaired by alcohol.  The report also indicated that it is difficult to detect impairment by pot with the standardized field sobriety tests used in DWI by alcohol cases, and it is difficult to confirm impairment with laboratory tests.  The article discusses several studies making these findings and noted the conclusion of some experts that public resources would be better spent combating alcohol-impaired driving, including perhaps lowering the per se threshold for alcohol concentrations to 0.05,  than in establishing a per se limit for blood-THC content or devising roadside tests to detect for marijuana impairment.

Marijuana impairment is harder to detect because THC – the ingredient that gives marijuana its psychoactive effect –  can take as long as four hours for the THC metabolites to appear in the body after smoking pot, and chemical test can still yield a positive result for pot metabolites for weeks after a person last smoked pot.  A publication by the National Highway Transportation Administration (NHTSA) regarding marijuana states that it positive tests can occur long after the window of intoxication and impairment has passed because concentrations of THC in a person’s blood depend in part upon the pattern of marijuana use, it is difficult to establish a relationship between a specified blood concentration and performance impairing effects.  The article in the Times stated that people who smoked marijuana on a frequent basis may have a blood-THC content that exceeds the limits set in Washington and Colorado for THC concentration more than 24 hours after they last smoked pot.

Marilyn A. Huestis, a senior investigator at the National Institute on Drug Abuse said that “our goal is to put out the science and have it used for evidence-based drug policy . . . but I think it’s a mishmash.”  The article cited a 2007 study which found that 12 percent of the drivers randomly stopped on American highways on Friday and Saturday nights had been drinking. (In return for taking part in the study, intoxicated drivers were told they would not be arrested, just taken home.)  It also reported that six percent of the drivers tested positive for marijuana — a number that is likely to go up with increased availability, and added that some experts and officials are concerned that the campaign against drunken driving has not gotten through to marijuana smokers.

The Times article stated that Glenn Davis, highway safety manager at the Department of Transportation in Colorado said that they have done surveys which indicated that a lot of people think D.W.I. laws don’t apply to marijuana.  He added that “there is always somebody who says, ‘I drive better while high.’”  Other evidence suggests that is not the case, but  also suggests that we may not have as much to fear from stoned driving as from drunken driving. Some researchers say that stoned driving, is simply less dangerous than drunk driving because marijuana and alcohol have different physiology. Drivers impaired by alcohol tend to overestimate their skills and drive faster.  Drivers impaired by marijuana do the opposite.  A professor interviewed by the author of the Times article noted the old joke about “‘Creech and Chong being arrested for doing 20 on the freeway.’” The article also said that studies estimate that drivers who are stoned are twice as likely to crash compared with a driver who has a blood-alcohol concentration of 0.08 percent is almost 20 times more likely to be in a fatal accident than a sober driver.

Driving while appreciably impaired by any impairing substance is illegal in North Carolina.  But for the reasons mentioned in the Times article, driving while impaired by pot could be a difficult case for the a prosecutor to prove beyond a reasonable doubt.  The times article discussed the debate about how best to prove that drivers under the influence of THC are too intoxicated to drive. Blood-alcohol content (BAC) can be tested on the side of the road with a hand held alcosensor, and a multitude of studies link increased levels of blood alcohol to decreased driving skills. But not so for pot.  THC levels can only be measured by blood or urine samples.  Urine tests look for metabolites of THC rather than the pot itself, and can return positive results many days or weeks after someone smoked pot.  Some states have laws that prohibit any detectable level of THC metabolite in urine or blood, and criminalize both.  The article said that only six states have set legal limits for THC concentration in the blood, and that in Colorado and Washington state the limit is five nanograms per milliliter of blood, or five parts per billion.