Effective for offenses committed on or after December 1, 2011 the General Assembly of the State of North Carolina has enacted a new, additional court cost specific to impaired driving offenses, which took effect on December 1, 2011.

Unlike most changes to court costs which were enacted during the past years and which typically took effect for costs assessed or collected on or after the effective date of the enacting legislation, this cost applies only to convictions for offenses committed on or after December 1, 2011. The fee may not be assessed for offenses committed prior to that date.

The new fee of $100 is to be assessed in addition to all other costs applicable to the case; it does not replace any other costs. E.g., it is assessed in addition to the Chapter 20 fee of G.S. 7A-304(a)(4b), not in lieu of it. The cost is to be assessed only upon conviction, so the fee should not be assessed unless the defendant is convicted of one of the following offenses:  Impaired driving, G.S. 20-138.1; Impaired driving in commercial vehicle, G.S. 20-138.2; Operating a commercial vehicle after consuming alcohol (second or subsequent convictions, only), G.S. 20-138.2A; and Operating a school bus, activity bus, or child care vehicle after consuming alcohol (second or subsequent convictions, only), G.S. 20-138.2B.

Because it is a court cost under G.S. 7A-304, waiver of this fee requires that the court make a finding of just cause for the waiver, pursuant to G.S 7A-304(a).

Collins Law Firm regularly represents people charged with impaired driving offenses with court appearances in New Hanover, Pender, and Brunswick County.  If you were charged, you should contact a lawyer or attorney at Collins Law Firm at 910-793-9000 for a consultation.

By Jana Collins, Office Manager

The road construction around Wilmington, North Carolina is supposed to ease traffic and pedestrian flow while improving the infrastructures of the city.  In the mean time the road closures and construction zones have been causing delays and traffic congestion.  In particular the construction on 3^rd Street in downtown Wilmington has been causing delays for those traveling into and out of downtown.

The construction and improvement project on 3^rd street in downtown Wilmington began in August and the project duration is expected to last for 13 months.  The project budget is $9.4 million, which was funded through a 2006 bond referendum.  The project is located from the stretch of road from Market Street to Davis Street and reflects the similar improvement projects on Front Street.  There are expected delays and slow downs due to the construction and renovation improvements.  There has already been one delay with the improvement project within the first few weeks of the project.  The delay is due to the discovery of an underground shelter with four storage tanks that are in the way of the new water and sewer lines that are being installed.  The old tanks contain liquids such as gas and oil, which require an environmental engineer to remove them which will cost $15,000 each to remove.  The money to remove the old tanks will come out of the project’s contingency fund and while the discovery of the tanks has delayed the project there is an expectation for it to be completed by September 2012.

The reason for this project is due to the aging water and sewer pipes that run underneath 3^rd street and to convert overhead utilities to run underground.  The above ground construction is to renovate the streetscape during the underground construction in order to minimize the disruption that will be caused during the construction period.

These renovations and updates are necessary due to various reasons.  The overhead utilities are being moved underground to reduce the potential for damage and to improve the aesthetics of the downtown cityscape.  The water and sewer pumps that run under 3^rd street are up to 100 years old in certain areas.  The traffic flow is planned to be improved through making downtown more accessible and pedestrian-friendly through improving the road which is considered a major gateway into the city.

Work hours expected for this project are 7 am until 6 pm, Mondays through Fridays with some construction on nights and weekends as deemed necessary.  Expect delays from lane closures on the west side of 3^rd street that have been extended to the Grace street intersection with no parking zones having been extended to the north of the Walnut Street intersection.  There are no left turns allowed off of 3^rd Street at Princess, Chestnut and Grace Streets with a detour for motorists to use 5^th Avenue.  Intersections along 3^rd Street may be closed as necessary.  Pedestrian access and walkways will be moved from in front of buildings as necessary with some temporary structures.

Written by Samantha Barringer – Intern with Collins Law Firm

On October 1st, 2011 more than 2,500 protesters marched across the Brooklyn Bridge.  Of those 2,500 protesters from the Occupy Wall Street (now sometimes called OWS) demonstration, more than seven hundred protesters were arrested by the police while trying to cross the Brooklyn Bridge.  Police defend their actions of arresting the protesters by saying the marchers’ actions led to the intervention.   Only those who were walking in the road portion of the bridge were arrested while those who used the Brooklyn Bridge walkway were not arrested.  The protesters who were walking in the street portion of the bridge were arrested due to the laws that were enacted to ensure reasonable time, place, and manner restrictions on protests to prevent any unsafe conditions for the public.  By choosing to march in the street, demonstrators were creating a public safety hazard while also impeding the flow of traffic across the bridge.

The New York Police Department had warned protesters in the days preceding October 1st arrests.   The police department had issues several warnings to the protesters that walking in the roadway instead of on the pedestrian walkway, would lead to arrests of those who did not abide by the law.  Many of those who were arrested have since been released with a summons.

In the weeks since it began, the OWS protests have become violent.  Over a dozen New York Police Department officers have been injured in protest related incidents including five officers who were sent to a hospital for injuries including hand and ankle injuries, and at least one head trauma injury.   Injuries were sustained at events including marches in Times Square on Oct. 15, and on Oct. 14 when OWS protesters marched down Broadway from Zuccotti Park toward the New York Stock Exchange in a celebration of the postponing of the cleaning of the park by the owners – Brookfield Properties.  First Precinct Commander Edward Winski suffered an elbow injury after a protester fought with a deputy inspector while being arrested because they refused to move from the street to the sidewalk.  The protester was charged with resisting arrest, obstructing government administration, and criminal mischief.

Written by Samantha Barringer – Intern with Collins Law Firm

Amanda Knox will be at home in Seattle this week for the first time in over four years.  The Italian appeals court overturned her murder conviction.  After arriving back in the United States, she said: “What’s important for me to say is just thank you, to everyone who has believed in me, who has defended me, who has supported my family,” she said. “Thank you for being there for me.”
Knox became fluent in Italian since being jailed in Italy for so long.  Before beginning her remarks, Knox smiled and said, “They’re reminding me to speak in English.”

Knox was convicted of murder in the 2007 death of her roommate – Meredith Kercher.  Knox had been sentenced to 26 years in prison.  Knox said she wanted the Kercher family to be remembered.

While the appeals court exonerated Knox of the most serious charges,  the court upheld her conviction on the charge of defamation against Patrick Lumumba, based on Knox accusing him of killing Kercher.  She was sentenced to three years in prison, which she has already served.

Kercher’s body was found partly naked, with more than 40 stab wounds and a deep gash in her throat, in the flat she was a roommate with Knox in Perugia where they were studying.

The Italian prosecutors announced they intend to appeal Knox’s case to Italy’s highest appellate court.  If Italy’s highest court – the Corte Suprema – rules in the prosecutor’s favor, it could reinstate the murder charge against Knox.  Italy then could seek her extradition from the United States to be sentenced.

Knox was a popular girl in Seattle before she went to Italy.  She had won her school’s highest award – the  Manvel Schauffler Award – named after a founder of the school.

Candace Dempsey – a Seattle-based author of one of about a dozen books that have been written about the Knox case, said “She has earning power now that she is free. . . .  She can write a book and she can certainly help her family pay back the bills” they incurred in her defense, and on their prolonged visits to Italy.

There is a large debate over the legality and rights of same sex marriage and whether it is a constitutionally given right.  While it is up to the fifty states to decide whether same sex marriage is legal, there is a large debate occurring in our nation about whether it should be legal.  Some people are against same sex marriage for religious reasons or cultural reasons.  There is a clause in the US Constitution known as the Full Faith and Credit Clause, which states that all of the States within the United States must respect the “public acts, records, and judicial proceedings of every other state.”  The clause is Article IV, Section 1 of the United States Constitution.  This clause was created to ensure that decisions made by a judicial system in one state are recognized and honored in every other state.

Since the Full Faith and Credit Clause is a part of the US Constitution, some think that when one state legalizes same sex marriage, that other states are bound to honor those marriages that are produced from that state.  Those opposing same sex marriage are against honoring any marriage certificate from a same sex marriage based upon passing constitutional amendments and acts passed by Congress.

The State of North Carolina does not recognize same sex marriage under the Defense of Marriage Act, which was passed by Congress in 1996.  This act defines marriage as a legal union between a man and a woman. While same sex marriage is already considered illegal in North Carolina, some members of the North Carolina Legislature want to pass an amendment to the North Carolina Constitution that would prohibit any legal recognition of same sex partners, including prohibiting private companies from allowing same sex couples from enjoying insurance benefits, retirement pay outs, and other benefits provided to married couples.  This amendment would make it a difficult task for future legislature to overturn the ban on same sex marriage.

The North Carolina legislature has deemed same sex marriage to be illegal and that marriage should only be between a man and a woman. The recent bill to create an amendment to ban same sex marriage shows that there is a strong desire among many members of the new republican legislature to prevent same sex marriage from ever being considered legal in the state of North Carolina in the future.

Written by Samantha Barringer – Intern with Collins Law Firm

The Wilmington Star News, based in New Hanover County, NC, recently reported updates on the rift between the Brunswick County District Attorney Jon David and Chief District Court Judge Jerry Jolly.  The paper reported that Administrative traffic court resumed Wednesday, September 7, 2011 in Brunswick County, NC, about five months after it was canceled by Judge Jolly, and  about 135 people filed into a line to speak with a prosecutor and judge.  It’s going to take a little while to load up the pipeline,” said Mr. David. He also said that the court could handle around 1,000 people in a traffic court session, he said.

The star news also indicated that the return of Traffic Court was presumed because legislators approved a bill requiring Traffic Court in every  judicial district by October 1, 2011, and that  filings in the appeal at the North Carolina Supreme Court revealed tensions that exist within the Brunswick County courthouse.

Every year, court costs increase, but this year is different.  With the new republican controlled legislature and the budget crisis, the government is looking to increase revenue and it seems they have looked to court costs.  While in the past, there have been nominal increase – usually once a year, this year there have been two already, and another one set to hit later this year.

The court costs for an improper equipment violation (a non moving violation to which many traffic offenses may be reduced to avoid both DMV points and insurance points) increased effective October 1, 2010 from $161 to $166.  On July 1, 2011 court costs went up for an improper equipment (IE) from $166 to $195. And effective August 1, 2011 court costs for an IE went up from $195 to $263.

Not only are the costs increasing, but they are becoming more complex!  The amount of the court costs in a criminal case now depends on the class or type of crime alleged.  The costs are different for infractions and misdemeanors, and different for chapter 20 violations (traffic violations) and other crimes.  Check out the official documents giving notice of the changes and the charts provided to explain the costs and how to calculate them:  http://www.nccourts.org/Courts/Trial/Costs/Default.asp

In addition to the changes and increases, the lack of advance notice have been especially frustrating. For example, look at the at the 2011 Court Costs Memo – effective July 1, 2011 in the list of documents at the AOC link above. The date of the memo is: June 28, 2011, and it refers to:  “Legislative Increases in Court Costs and Fees, July 2011; EFFECTIVE July 1, 2011, unless otherwise noted.”

These changes have not only been costly to our clients but they have also been very confusing and cumbersome to everyone involved!  The staff in the courts have been expressing frustration, understandably so, including some of the clerks and the District Attorneys’ staff.  Even some of the judges have been making comments about the changes and uncertainty associated with the changes and the implementation thereof.

Two days ago, in a case that made headlines across America and around the world, Casey Anthony was found not guilty of first degree murder, aggravated manslaughter of a child, and aggravated child abuse by a jury of five men and seven women. However, she was found guilty of four counts of providing false information to law enforcement officers, which are misdemeanors. On July 7, 2011, Anthony received a sentence to one year for each of her four counts of lying to investigators, with credit given for time served already in jail.  The judge said that because Anthony has served almost three years and because of good behavior she could go free in late July or early August.

After almost six weeks of testimony, the jury did not agree with the prosecution’s position that there was adequate evidence to prove beyond a reasonable doubt that Ms. Anthony murdered her child by dosing her with chloroform, suffocating her with duct tape, and dumping her body in a wooded area.  The jury did not ask to review any evidence and reached a decision in less than 11 hours.  The jurors had been sequestered for six weeks, and declined to talk with reporters and returned home to Pinellas County.

This court case was sensationalized by talk show hosts, such as Nancy Grace, on news networks for the duration of the trial.  Millions of Americans were enthralled with the coverage and were quick to jump to conclusions before the jury rendered their verdict.  It appears that a large percentage of the pundits and the public believed that Casey Anthony was guilty before the jury decided two days ago that she was not.  In our justice system, all of our citizens enjoy the fundamental right that they are presumed innocent until found guilty by a jury, and the jury’s verdict is what determines whether someone is guilty of a crime or not. The duty of a jury in our system is not to determine whether or not they think someone probably did something.  Instead, the solemn duty of a jury is to determine whether or not the government, with all of its vast resources, can prove beyond a reasonable doubt, that the presumption of innocence has been overcome by the evidence beyond a reasonable doubt.

The American jury system has its origins in medieval England.  Early English juries were seen as a protector of the accused against the very harsh criminal laws of the days.  Several cases in the seventeenth and eighteenth centuries helped build the jury’s reputation as a protector of individual liberty.  One example was Bushell’s Case which established the right of English juries to deliver a verdict free from judicial coercion and must be independent (source.)  Here, the judge involved told the jury that they “shall not be dismissed until we have a verdict that the court will accept.”  When the jury acquitted the two men, the judge refused to accept the verdict, fined them and sent them back to deliberate further.  Edward Bushel, a member of the jury, refused to pay the fine, at which point the judge threatened him, saying, “you shall be locked up without meat, drink, fire, and tobacco.  You shall not think thus to abuse the court; we will have a verdict, by the help of God, or you shall starve for it.”  A higher court ruled that a jury could not be punished because of the verdict it returned.

The right to a trial by jury in the United States has its roots from when the United States was still a British colony.  The British crown tried to deny American colonists their right to trial by jury with respect to the British Navigation Acts (source.)  These acts attempted to secure British control over trade with the American colonies by requiring that goods going to and from the colonies be carried on British ships.  Colonists viewed the Navigation Acts as harmful to their economy, and colonial juries would often refuse to convict individuals charged with violating these laws.  In response, the British set up special courts that did not use trial by jury. This became one of the major complaints of the colonists against the British as America moved toward revolution.

Trial by jury is a vital part of our democracy.  The U.S. Declaration of Independence accused George III of the United Kingdom of “depriving us in many cases, of the benefits of trial by jury,” (source) and Article III of the U.S. Constitution states that all trials shall be by jury (source.)  The right was expanded with the Sixth Amendment to the United States Constitution, which states in part, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed,” and the Seventh Amendment to the United States Constitution, which guarantees a jury trial in civil cases.  Thomas Jefferson described trial by jury as “the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution” (source.)

Before people rush and blame the jury that they returned the wrong verdict, we must realize that they had a duty to look at all the evidence and make the best decision based on what they saw at the trial.  Second guessing the jury and calling for retribution makes a mockery of the American justice system and is not what this country is about.   People who are denigrating the jury’s decision are showing their lack of understanding and lack of appreciation of our American system of jurisprudence and criminal justice.  It is especially shocking to hear people who are actually lawyers, and former prosecutors such as Nancy Grace, criticizing the result of this important trial, which could have resulted in the government killing one of our citizens – via the death penalty.  By inflaming the public in the way she has and continues to do, Nancy Grace continues to breach the ethical duties she swore to uphold when she was sworn in as a lawyer, and as a prosecutor, as she was admonished on more than one occasion by more than one court of appeals for prosecutorial misconduct.  The Supreme Court of Georgia wrote about Nancy Grace that “the conduct of the prosecuting attorney in this case demonstrated her disregard of the notions of due process and fairness, and was inexcusable.”  (source.)  United States Court of Appeals for the Eleventh Circuit wrote about her conduct in a murder trial she prosecuted that Nancy Grace  “played fast and loose” with her ethical duties and failed to “fulfill her responsibilities” as a prosecutor  (source.)

Thank God that we have United States citizens who can serve as jurors and follow the law, and not give in to the mob mentality perpetuated by the likes of Nancy Grace.

We in no way mean to minimize the tragic loss of little Caylee, who was a precious little girl.  May her soul rest in peace!

The Fourth of July celebration is commonly associated with fireworks, parades, hot dogs, picnics, and other parties.  Also, it is a day where many Americans will be consuming alcohol.

As North Carolinians across the state flock to the Southeastern North Carolina coast to celebrate the 4^th of July Weekend, the state has begun “Booze It & Lose It: Operation Firecracker” to deter drunk drivers across the entire state and remove impaired drivers from the roads.  Operation Firecracker began Monday, June 27, and continues through Monday, July 4.

Operation Firecracker is conducted by the North Carolina Department of Transportation and it coordinates the Highway Patrol, sheriff’s offices and police departments.  During this period there will be additional checkpoints and stepped up patrols that will be conducted across the state.

The Fourth of July holiday is considered one of the deadliest for highway travel.  In 2010, according to the North Carolina Department of Transportation, there were 205 alcohol-related automobile accidents during the Independence holiday, which resulted in six deaths.  Additionally, alcohol-related crashes also accounted for 105 injuries in the state during the same week last year.  During the 2010 “Booze It & Lose it: Operation Firecracker” campaign officers conducted more than 4,600 patrols and checkpoints, which resulted in more than 1,200 North Carolina motorists being charged with driving while impaired.

This means there will be an increased police presence at the beaches in Pender, New Hanover, and Brunswick Counties.  The beaches that will be affected will be Surf City, Topsail Beach, Wrightsville Beach, Kure Beach, Carolina Beach, Holden Beach, Ocean Isle Beach, and Sunset Beach.

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.

When Americans get into their car for their commute to work, to drop the kids off for school, or for any other reason, they are likely to either talk on their cell phone or use text messaging. Just this morning when our summer intern drove the 55 miles from Sunset Beach, NC (Brunswick County) to Wilmington, NC (New Hanover County) on Highway 17 passing through Ocean Isle and Bolivia, he told me he counted twenty-two people who were texting on their cell phone.

Texting while driving is quite dangerous for three reasons: 1) You are taking your eyes of the road; 2) You are taking your hands off the wheel; and 3) You are taking your mind off what you’re doing.  A study released by the Virginia Tech Transportation Institute found that truck drivers who were texting were 23 times more at risk of a crash or a near crash event than drivers who were not distracted.  Additionally, the study found that texting took a driver’s focus away from the road for an average of 4.6 seconds, which is enough time to travel the length of a football field at 55 mph.

Studies like these have caused state legislatures across the country to pass legislation banning text messaging while driving. In June 2009, the North Carolina Governor signed new legislation, § 20-137.4A, which banned text messaging by all drivers who operate a vehicle on a public street, highway, or public vehicular area.  This bill makes it unlawful to read email, text message, use your camera, or look up information on the internet.  However, the law has a number of exceptions where it does not apply: 1) If you are parked, 2) If you are a law enforcement officer, a member of a fire department, or the operator of a public or private ambulance; 3) If you are using a factory-installed or aftermarket GPS or wireless communications devices used to transmit or receive data as part of a digital dispatch system; and 4) If you are using a voice operated technology.

Since December 1, 2009, a violation of this law shall be an infraction and shall be punishable by a fine of $100 plus court fees.  The violation will not add points to your driving record and an insurance surcharge will not be assessed.  Additionally, failure to comply with the provisions shall not constitute negligence per se or contributory negligence per se by the operator in any action for the recovery of damages arising out of the operation of a vehicle.

The new law is quite difficult to enforce.  WWAY News Channel 3 reported that Wilmington Police Chief Ralph Evangelous said, “You assume that someone’s texting, when in fact they could just be dialing a phone number, which technically is legal.”  In the first six months of the new law only 300 tickets had been given to drivers in North Carolina.  In New Hanover County only 12 had been issued.  The Wilmington Police Chief believes the law is “dumb” and said, “we ought to ban the use of cell phones – period.”

If you have been issued a citation because you were texting while driving, or have been charged with any other traffic violation or crime in Southeastern North Carolina, in Wilmington, NC, New Hanover County, or the surrounding areas including Bolivia, NC, Brunswick County, Burgaw, NC, or Pender County, you should contact a lawyer or attorney at Collins Law Firm at 910-793-9000 for a consultation.