Effective December 1, 2011, Article 5 of Chapter 15A of the North Carolina General Statutes was amended by adding a new section, G.S. 15A-145.4, pursuant to which nonviolent felonies for first offenders who were under 18 years of age at the time of the commission of the crime can be expunged off their records as long as certain requirements are met.

Generally, the fact that one was charged with a crime remains on their record regardless of the disposition of the charge, unless it gets expunged.

Expungement is a process by which criminal charges can be removed from ones official criminal record.

Regardless of ones age, cases in which the criminal charges were dismissed or a finding of not guilty was returned can be expunged pursuant to N.C.G.S. 15A-146.  In this case, offenses can be either a misdemeanor, a felony, or an infraction under G.S. 18B-302(i). However, one must not have any previous convictions of any felonies or misdemeanors other than traffic violations.

First offenders not over the age of 21 at the time of the offense, can also pursue an expungement if:

1.    They were charged with certain drug offenses which were dismissed based on a Deferred Prosecution Agreement pursuant to N.C.G.S. 90-96(a).  (See N.C.G.S. 15A-145.2)

2.    They were charged with certain toxic vapors offenses which were dismissed based on a Deferred Prosecution Agreement pursuant to N.C.G.S. 90-113.14(a) or (a1).  (see N.C.G.S. 15A-145.3)

First offenders under the age of 18 at the time of the offense however can even get charges expunged of their record of which they were convicted.  Until the amendment of the North Carolina expungement laws enacted by The General Assembly of North Carolina went in effect on December 1, 2011, the list of eligible convictions were exclusive of felony charges other than Class H felonies under Article 13A of Chapter 14 or enhanced charges under N.C.G.S. 14-50.22 (certain gang offenses).  However, now one can even get “nonviolent felony” charges expunged. “Nonviolent Felony” means for purposes of this section any felony except the following:

1.    A Class A through G felony.
2.    A felony that includes assault as an essential element of the offense.
3.    A felony that is an offense for which the convicted offender must register under Article 27A of Chapter 14 of the General Statutes.
4.    A felony that is an offense that did not require registration under Article 27A of Chapter 14 of the General Statutes at the time of the commission of the offense but does require registration on the date the petition to expunge the offense would be filed.
5.     A felony charged for any of the following sex-related or stalking offenses: G.S. 14-27.7A(b), 14-190.6, 14-190.7, 14-190.8, 14-202, 14-208.11A, 14-208.18, 14-277.3A, 14-321.1.
6.    Any felony offense charged pursuant to Chapter 90 of the General Statutes where the offense involves methamphetamines, heroin, or possession with intent to sell or deliver or sell and deliver cocaine.
7.    A felony offense charged pursuant to G.S. 14-12.12(b), 14-12.13, or 14-12.14, or any offense charged as a felony pursuant to G.S. 14-3(c).
8.    A felony offense charged pursuant to G.S. 14-401.16.
9.    A felony offense in which a commercial motor vehicle was used in the commission of the offense.

If you feel you may be eligible to pursue an expungement in New Hanover, Pender, or Brunswick Counties, North Carolina, call Collins Law Firm for a consultation at (910) 793-9000.

By Jana Collins, Office Manager

Effective January 1, 2012, Article 2 of Chapter 20 of the North Carolina General Statutes was amended by adding a new section introducing an immediate 30 day civil license revocation for provisional licensees.  Pursuant to General Statute 20-13.3(a)(4) a provisional licensee is defined as a person under the age of 18 who has a limited learner’s permit, a limited provisional license, or a full provisional license issued pursuant to G.S. 20-11.

Pursuant to this new law, a license revocation can be triggered by common offenses such as Speeding more than 15 mph over the limit or more than 80 mph in a 70 mph zone, Reckless Driving, Speeding to Elude Arrest, Aggressive Driving, Failing to move over for law enforcement or emergency vehicles giving a warning signal.  A complete list of criminal moving violations subjecting a provisional licensee’s permit or license to revocation can be found on page two of the affidavit and revocation report newly issued by the North Carolina Administrative Office of the Courts to be used for law enforcement officers (new AOC-CVR-12).

Pursuant to G.S. 20-13.3(d) the provisional licensee must be given  a copy of the revocation order (new AOC-CVR-13) by the he judicial official which must state the date on which the provisional licensee’s permit or license becomes valid again.  The provisional licensee keeps their license or permit, however, they are not authorized to drive during the revocation period.

Pursuant to G.S. 20-13.3(f), a  provisional licensee who is subject to a civil license revocation under this new law is not eligible for a limited driving privilege.

At the conclusion of the revocation period the person’s permit or license becomes valid by operation of law—payment of a fee is not required.

Pursuant to G.S. 20-13.3(h) no driver’s license or insurance surcharge may be assessed for a provisional licensee revocation pursuant to the this new law.

A provisional licensee who drives a motor vehicle on a highway during the period of revocation under G.S. 20-13.3 commits the offense of driving while license revoked under G.S. 20-28.

Collins Law Firm has been representing people charged with traffic citations, speeding tickets, and other criminal charges in Southeast North Carolina for over ten years and we will be happy to discuss your situation with you. Feel free to call for a consultation regarding any legal matters for which you need legal representation at (910) 793-9000.

By Jana Collins, Office Manager

North Carolina General Statute Section § 15A-304 provides that: A judicial official may issue a warrant for arrest only when he is supplied with sufficient information, supported by oath or affirmation, to make an independent judgment that there is probable cause to believe that a crime has been committed and that the person to be arrested committed it. The information must be shown by one or more of the following: Affidavit;  Oral testimony under oath or affirmation before the issuing official, etc.

Just because someone swears out a warrant against a person does not mean the person is guilty. In each of the United States, everyone is presumed innocent until proven guilty in a court of law. Criminal charges, even if dismissed in court, can result in criminal records which will affect the accused for the rest of their life. Even if the criminal records are expunged, it is possible that records may still exist of the charges.

Recently, the Wilmington Star News (the main newspaper in New Hanover County, NC) ran a story on North Carolina’s laws on self initiated warrants.  The story commented on several high profile cases including the recent warrant that Belville Mayor Jack Batson took out on Belville Commissioner Joe Breault for communicating threats and cyberstalking. Commissioner Breault had allegedly written an email to Mayer Batson in which he said that if he got out of hand again, “you may likely find your words rammed back down your throat and, along with your new teeth, pulled out of your rectum!”  The article said Batson indicated that he felt compelled to swear out a warrant against Breault since the threats were escalating, but Breault the agreed that the system with self initiated warrants in North Carolina is abused. He said specifically that he has examples of instances where young people threaten to have their lovers arrested if they misbehave.

In 2003, a Kure Beach resident swore out a warrant against actor Ben Affleck for communicating threats.  The warrant was subsequently dismissed.  The District Attorney at the time said that the case was “a very good example of why people shouldn’t be able to take out a warrant without any kind of police investigation.”

The Star News article discussed the processes in other states including Georgia where individuals requesting a warrant must go before a magistrate who holds a hearing where both the accuser and accused are given a chance to present evidence before the judicial officer makes a decision. What followed was the standard three-step process that unfolds thousands of times each year in magistrates’ offices across North Carolina: Batson filled out a one-page form, listing his complaint. He put his hand on a Bible, swearing his claims were true. And then, the magistrate issued a warrant for the commissioner’s arrest.

In the vast majority of other states, there are other professionals involved in the criminal justice system investigating criminal complaints before a warrant is issued.  The Star news quoted Jeffrey Welty, Assistant Professor at the UNC School of Government who has said:  It’s a distinctive feature of North Carolina law. . . . I haven’t surveyed all 50 states, but if we’re not unique, we’re pretty close.

The New Hanover County Courthouse located in Wilmington, NC is closed today, Thursday March 8, 2012, because of an infestation of bed bugs! Courthouse personnel said they noticed some bed bugs in the building and notified the New Hanover County division of Property Management.

Bed bugs have been a human parasite for thousands of years. In the 1940s, bedbugs were mostly eradicated in the developed world.  However, since the mid1990’s, bedbugs have increased in numbers Infestation of human habitats has been increasing, and bed bug bites and the effects thereof have been increasing as well.

An exterminator is scheduled to try to kill all of the pests today by fumigating the building .  We have learned that other facilities will be used for court business with urgency.  Emergency protective orders and civil filings will be handled at the Juvenile Clerk’s Office located at 133 North Fourth Street, Superior Court will be relocated to the Old Courthouse located next door to the main courthouse at 24 North Third Street, and warrants can be sworn out at the New Hanover County Sheriff’s Office on Blue Clay Road.  Jerome Fennell, Director of NHC Property Management, said that “County staff are working closely with exterminators to ensure the facility will be ready for normal operations on Friday.” Whether they will be successful remains to be seen.  Samantha Dooies, assistant to District Attorney Ben David said that blood-sucking bed bugs can be very difficult to eradicate.

An announcement is expected later today about the success of the eradication efforts.  The staff and attorneys at Collins Law Firm certainly hope that those working on the problem are thorough and successful!  The courthouse is full of hardworking people who already have a hard enough time getting all their responsibilities fulfilled, and they need a clean and safe workplace, and they don’t need further delays.  Good luck and successful exterminating to everyone working on the problem!

North Carolina Laws require the NC Division of Motor Vehicles to revoke an underage person’s license as required by G.S. 20-17.3 for violating various provisions of the alcoholic beverage regulations including aiding and abetting and attempting to violate certain regulations.  However, there are ways to legally avoid the revocation of your license if you are accused of violating these regulations.  Call Collins Law Firm for a consultation if you have any questions or need legal representation at:  910-793-9000.

Selected relevant statutes include:

North Carolina Statutes, Chapter 20. Motor Vehicles, § 20-17.3. Revocation for underage purchasers of alcohol

The Division shall revoke for one year the driver’s license of any person who has been convicted of violating any of the following:  (1) G.S. 18B-302(c), (e), or (f):  (2) G.S. 18B-302(b), if the violation occurred while the person was purchasing or attempting to purchase an alcoholic beverage; (3) G.S. 18B-302(a1).

If the person’s license is currently suspended or revoked, then the revocation under this section shall begin at the termination of that revocation. A person whose license is revoked under this section for a violation of G.S. 18B-302(a1) or G.S. 18B-302(c) shall be eligible for a limited driving privilege under G.S. 20-179.3.

North Carolina Statutes, Chapter 18B. Regulation of Alcoholic Beverages, Article 3. Sale, Possession, and Consumption, 18B-302. Sale to or purchase by underage persons

(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.

(d) Defense. – It shall be a defense to a violation of subsection (a) of this section if the seller: (1) Shows that the purchaser produced a driver’s license, a special identification card issued under G.S. 20-37.7, a military identification card, or a passport, showing his age to be at least the required age for purchase and bearing a physical description of the person named on the card reasonably describing the purchaser; or (2) Produces evidence of other facts that reasonably indicated at the time of sale that the purchaser was at least the required age. (3) Shows that at the time of purchase, the purchaser utilized a biometric identification system that demonstrated (i) the purchaser’s age to be at least the required age for the purchase and (ii) the purchaser had previously registered with the seller or seller’s agent a drivers license, a special identification card issued under G.S. 20-377.7, a military identification card, or a passport showing the purchaser’s date of birth and bearing a physical description of the person named on the document.

(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.

(g) Conviction Report Sent to Division of Motor Vehicles. – 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.

(h) Handling in Course of Employment. – Nothing in this section shall be construed to prohibit an underage person from selling, transporting, possessing or dispensing alcoholic beverages in the course of employment, if the employment of the person for that purpose is lawful under applicable youth employment statutes and Commission rules.

(i) Purchase, Possession, or Consumption by 19 or 20-Year Old. – A violation of subdivision (b)(1) or (b)(3) of this section by a person who is 19 or 20 years old is a Class 3 misdemeanor.

(j) Notwithstanding any other provisions of law, a law enforcement officer may require any person the officer has probable cause to believe is under age 21 and has consumed alcohol to submit to an alcohol screening test using a device approved by the Department of Health and Human Services. The results of any screening device administered in accordance with the rules of the Department of Health and Human Services shall be admissible in any court or administrative proceeding. A refusal to submit to an alcohol screening test shall be admissible in any court or administrative proceeding.

(k) Notwithstanding the provisions in this section, it shall not be unlawful for a person less than 21 years old to consume unfortified wine or fortified wine during participation in an exempted activity under G.S. 18B-103(4), (8), or (11).

How much is a companion pet worth? This is the question that is being asked in regards to the death of Laci, a Jack Russel Terrier of a Wilmington couple. Laci died in 2007 after veterinarians at NC State inserted a feeding tube in her trachea instead of her esophagus, causing Laci to drown over several hours. The Sheras filed a complaint in 2009 against the NC State Veterinary School, two veterinary residents and an intern who treated Laci. The couple accused them of malpractice. In their lawsuit the Sheras question whether the residents had the proper supervision while working in the intensive care unit.

The Sheras, Laci’s owners, are fighting a legal battle with the state over how much they are entitled from Laci’s death. The value of a companion animal is being calculated at the fair market value of replacing the animal which is not in line with the value that Americans place onto pets. Many state laws view animals as being a piece of property instead of another member of the family. There is an argument against this view based upon the legal system’s valuation of a companion animal not being in line with what an average pet owner is willing to spend in veterinary bills.

The Sheras have been fighting this view of compensation and the rights of animal owners over the loss or injury of an animal caused by another. The State estimates the cost of replacing Laci is only $350 based upon market value. The Sheras’ attorney argues that they are entitled to more than $350, that they should be compensated for more than $28,000, which was the cost of Laci’s cancer treatments at NC State.

The Sheras have made statements about this lawsuit not being about the money, but rather about this being justice for Laci and trying to change the system. They are hoping to change the law so that no other family or pet has to go through what they have been through.

On January 23rd, 2012, the Sheras’ case made it to the North Carolina state Court of Appeals but the decision is not expected for at least a few months. The Sheras’ case is just one of the recent court cases that essentially treat animals as human under the law. The United States Courts are deciding against centuries of legal decisions that have defined animals as property. In recent years Judges in 25 states have administered financial trusts set up in pets’ names as well as courts in New York, Maryland and Texas resolving custody disputes involving pets by deciding what’s best for the pet. The Courts have begun to take claims of veterinary malpractice seriously as well. Courts in Kentucky and California have awarded damages to pet owners for the loss of companionship, emotional distress and other factors that go beyond the assessed animal’s worth based upon their market value.

By Samantha Barringer, Intern at Collins Law Firm

On the evening of Friday, January 13, 2012, there were scenes of panic near the island of Giglio, Italy—the Costa Concordia, a luxury cruise ship, hit a sandbar causing a 165 feet gash across the ships left side.  The ship started taking on water forcing some 4,200 people aboard to evacuate.  Most people managed to reach the nearby island by lifeboats, others swam ashore, and some 50 people who were trapped on the badly listed ship were plucked to safety by helicopters.

Unfortunately, this accident claimed the lives of at least 16 people—21 more people remain listed as missing.

In addition, experts fear fuel could leak from the capsized cruise liner into the sea off the Italian coast.  After an unidentified liquid was found escaping from the holed cruise liner, Italy’s government declared a state of emergency.

The man accused of causing this disaster by steering the ship too close to the island’s shore and later abandoning the ship before evacuation was completed, Francesco Schettino, the captain of the ship, is under house arrest.

Costa Cruises, a daughter of the US Carnival Cruises, offered today in addition to a refund of the full costs of their cruise, travel expenses and any medical expenses sustained after the grounding a €11,000 (~$14,500) settlement to each passenger, whether child or adult, who suffered no physical injuries—injured passengers will be dealt with individually.

However, Codacons, an associations for the protection of the environment and the rights of users and consumers, did not participate in the negotiations, and is collecting names for a class action suit to be filed in Miami, Florida requesting €125,000 (~165,000) for each passenger.  Codacons’ president Carlo Rienzi even urges passengers to see a doctor to check whether they had suffered psychological trauma.

American advocates however argue that each passenger has different damages and needs to be dealt with individually.  Therefore, they do not see a class action to be the right tool and instead suggest for passengers to file individual lawsuits.

By Jana Collins, Office Manager

On Friday, January 6, 2012 after a months long investigation by the New Hanover County Sheriff’s Office (hereinafter NHSO), Vice and Narcotics Detectives seized the largest amount of heroin in NHSO history, and arrested Tierre Henderson.

The raid lead to the discovery of 300 small paper bags of heroin stamped “Breaking Dawn” and “Dream Catcher” which have a street value of more than $9,000, and diverse drug paraphernalia.

The  accused drug trafficker Tierre Henderson is now held in New Hanover County Detention Facility for four counts of possession with the intent to manufacture, sell, or deliver heroin, two counts of sale or delivery of heroin, two counts of conspiracy to trafficking in opium/heroin, four counts of  maintaining a dwelling, vehicle, or other place for the use, storage, or sale of a controlled substance, manufacture of heroin, four counts of trafficking in opium/heroin, and five counts of possession of drug paraphernalia.  He is held under a $2.5 million bond.  His next court appearance is schedule in New Hanover County District Court in Wilmington, North Carolina on January 19, 2012.

The investigation of Tierre Henderson also lead the Vice and Narcotics Detectives to Chrissy Joy Sinclair in her residence in Holly Ridge, where—with the assistance of the Holly Ridge Police Department—5.5 ounces of pure uncut heroin was seized which would produce over 15,000 bags of heroin on the streets of New Hanover County, along with drug paraphernalia, and $60,000 cash.

Chrissy Joy Sinclair is being held in the New Hanover County Detention Facility under a $1 million bond.  She is charged with five counts of conspiracy to trafficking in opium/heroin, two counts of maintaining a dwelling, vehicle, or other place for the use, storage, or sale of a controlled substance, and possession of drug paraphernalia.  Her next court appearance is schedule in New Hanover County District Court in Wilmington, North Carolina on January 26, 2012.

By Jana Collins, Office Manager

Every year, many people start off the New Year facing the consequences and expense of a DWI/DUI arrest.  Unfortunately, holiday festivities often even take a deadly turn when a person chooses to drink alcohol and then get behind the wheel.

In an effort to remove impaired drivers from the roads, State Transportation Secretary Gene Conti announced on December 2, 2011 that state and local law enforcement officers will be out in force as part of the Holiday “Booze It & Lose It” campaign.  Checkpoints and stepped-up patrols will be conducted through Monday, January 2, 2012 across North Carolina.  This means that an increased police presence is to be expected.

Collins Law Firm always urges people not to drive while impaired.  If you consume alcohol, we encourage you to have a designated driver or to take a taxi home.  However, if you are charged with a DWI/DUI, underage drinking, or any other crime in or around Wilmington, NC in New Hanover County, Brunswick County (Bolivia, NC), or Pender County (Burgaw, NC) and need a lawyer or attorney to represent you, call Collins Law Firm at: 910-793-9000 for a confidential consultation.

By Jana Collins, Office Manager

On Wednesday, December 7, 2011 Rod Blagojevich was sentenced to 14 years in prison for18 corruption charges, including the scheme to peddle the vacated Senate seat of Barack Obama.  He will have to report for prison on February 16, 2012 to a facility to be named later.  In addition, he was ordered to pay a $20,000 fine.

Blagojevich was a democratic State Representative before being elected to the United States House of Representatives representing parts of Chicago, and he served as the 40th Governor of Illinois from 2003 to 2009.

Blagojevich was arrested on December 9, 2008 on federal corruption charges including conspiracy to commit mail and wire fraud and solicitation of bribery.  As a result thereof, he was impeached for corruption and misconduct in office by the Illinois House of Representatives on January 9, 2009 by a 114–1 vote.

With this sentence Blagojevich will join George Ryan, a Republican who was governor from 1999 to 2003, who is serving a prison sentence.  Ryan was convicted of corruption in 2006 after a scandal involving the illegal sale of government licenses, contracts and leases by state employees.

Two other former Illinois governors have been sent to prison, and several others have gotten in trouble with the law:  Otto Kerner Jr., a Democrat who was governor from 1961 to 1968, was convicted in 1973 on 17 counts of bribery, conspiracy, perjury and related charges, and Dan Walker, a Democrat who was governor from 1973 to 1977, pleaded guilty to bank fraud, misapplication of funds and perjury in 1987and was sentenced to seven years in prison.

However, with this 14 years sentence, Blagojevich received one of the stiffest penalties imposed for corruption in a state with a history of crooked politics.

By Jana Collins, Office Manager