A visit to an auto repair shop can be intimidating. Especially when you need work done on your car and you aren’t sure what exactly needs to be done or how much it is going to cost. In order to avoid an unpleasant experience, it’s always a good idea to ask friends and family to refer you to a mechanic they have used and trust. Check to see that the mechanic is ASE (National Institute for Automotive Excellence) certified and that a sign is posted explaining your rights under the North Carolina law. Familiarizing yourself with the North Carolina Motor Vehicle Repair Act in advance may also help to avoid problems with a shop after work has been done on your car.

North Carolina’s Motor Vehicle Repair Act (G.S. 20-354) protects consumers when auto repairs cost more than $350. Here’s how the law works:

•    The repair shop should give you a written estimate and ask you to sign an authorization for the repair. If the car is dropped off by someone else or at a time when the shop is closed, the estimate and authorization can be agreed to orally.
•    When you authorize the repair, you have the right to request that you get back or examine any of your car’s old parts.
•    The repair shop must notify you of any storage charges you’ll owe if you don’t pick up the car once the repair is completed.
•    The repair shop may not exceed the cost you authorized by more than 10 percent without first getting your permission.
•    If the problem is unknown, the repair shop must tell you how much it will cost to diagnose the problem. Once they’ve diagnosed the problem, the shop must contact you with an estimate and to get authorization to do the work.
•    The repair shop must provide you with a detailed invoice that itemizes charges for labor and parts and identifies all parts as new, used, or reconditioned.
•    Keep in mind that repair shops have flexibility in marking up the charge for parts and that you must pay for authorized repairs even if they do not solve the problem.
•    The Motor Vehicle Repair Act does not apply if your insurance company is paying for the repairs, or to agricultural equipment and vehicles weighing more than 26,000 pounds.

Knowing your rights under the Motor Vehicle Repair Act may help avoid a headache during or after a future trip to the mechanic. If you feel as if your rights under this act have been violated by a mechanic or auto repair shop, or if you have legal concerns about any area of law in which we practice, contact us at (910) 793-9000(910) 793-9000 for a confidential legal consultation.

By Lauren Seidel, Paralegal

Over the past twenty years, cell phones have become an essential part of day to day life for many Americans. Cell phones continue to provide us with the convenience to communicate while on the go, comfort in knowing we have a way to call for help in case of an emergency, and access to music, games and entertainment.  Cell phones can make life easier, but when used irresponsibly, can have disastrous consequences.

Answering a text takes away your attention for about five second. That is enough time to travel the length of a football field. We know it is dangerous, but many of us continue to send or receive text messages while driving thinking that nothing will happen to them. But according to the National Highway Traffic Safety Administration, text messaging while driving makes a car crash 23 times more likely and 1.3 million auto collisions involved cell phones last year.

Unfortunately, about 6,000 deaths and about 500,000 injuries are caused by distracted drivers every year.  In response to the rapid increase in texting while driving fatalities, 39 states, including North Carolina have passed laws prohibiting all drivers from texting while driving. Texting while driving is a violation of the North Carolina General Statute §20-137.4A.

N.C.G.S. §20-137.4A Unlawful use of mobile telephone for text messaging or electronic mail
(a) Offense. – It shall be unlawful for any person to operate a vehicle on a public street or highway or public vehicular area while using a mobile telephone to:
(1) Manually enter multiple letters or text in the device as a means of communicating with another person; or
(2) Read any electronic mail or text message transmitted to the device or stored within the device, provided that this prohibition shall not apply to any name or number stored in the device nor to any caller identification information.
(b) Exceptions. – The provisions of this section shall not apply to:
(1) The operator of a vehicle that is lawfully parked or stopped.
(2) Any of the following while in the performance of their official duties: a law enforcement officer; a member of a fire department; or the operator of a public or private ambulance.
(3) The use of factory-installed or aftermarket global positioning systems (GPS) or wireless communications devices used to transmit or receive data as part of a digital dispatch system.
(4) The use of voice operated technology.
(c) Penalty. – A violation of this section while operating a school bus, as defined in G.S. 20-137.4(a)(4), shall be a Class 2 misdemeanor and shall be punishable by a fine of not less than one hundred dollars ($100.00). Any other violation of this section shall be an infraction and shall be punishable by a fine of one hundred dollars ($100.00) and the costs of court.

A texting while driving charge will not cause you to receive any drivers license points or insurance surcharges, however the charge will appear on your North Carolina DMV record unless you are able to have the charge dismissed. If you or someone you know has received a ticket for texting while driving, call Collins Law Firm for a free consultation at 910-793-9000910-793-9000.

By Lauren Seidel, Paralegal

In an effort to increase the safety of our children, the North Carolina Highway Patrol launched Operation Stop Arm week yesterday, October 15, 2012 at 6:00 a.m. and will go through the end of school Friday, October 19, 2012.  They will enforce stop arm violations and other traffic violations in and around school zones aggressively.

Troopers will be observing drivers in school zones and following school busses in marked and unmarked cars statewide during this week.

Keep in mind what you are and are not allowed to do with respect to a stopped school bus:

•    Two-lane road – Everyone must stop
•    Four-lane road with no separation – Everyone must stop
•    Four-lane or more with a median or some physical barrier – Only traffic following the bus must stop
•    Center turn lane with less than four lanes – Everyone must stop
•    Center turn lane with at least four other lanes – Only traffic following the bus must stop

Passing a stopped school bus is a Class 1 misdemeanor.  The maximum punishment for a Class 1 misdemeanor conviction is 120 days prison/jail time.   In addition, upon conviction of passing a stopped school bus one receives five driving points on their North Carolina driver’s license and is subject to fines up to $200.   Furthermore, if—while passing a stopped school bus—one strikes an individual, one faces a maximum punishment of 15 months jail/prison time, because this is a Class I Felony.  If—while passing a stopped school bus and striking an individual—one causes a death, one faces a maximum punishment of 30 months jail/prison time, because this is a Class H felony.

Collins Law Firm has handled thousands of traffic tickets for our clients and, in most cases, we were able to avoid suspensions.  Furthermore, for most simple tickets (speeding violations, passing stopped school bus, illegal passing, etc.), our clients do not even need to go to court. We offer free phone consultations for most traffic matters. If you need advice or information about representation for a traffic violation or in a hearing regarding a scheduled suspension of your North Carolina driver’s license, call us at: 910-793-9000.

By Jana Collins, Office Manager

Filing a claim for unemployment requires contacting the North Carolina’s Employment Security Commission (ESC). The benefits you may qualify for depends on how long the employee was employed and how much they were paid.  Unemployment benefits usually range from $41 to $476 a week. To be qualified, an employee must have been separated from their job through no fault of their own and have worked for at least two of the first four quarters of the last five calendar quarters. Additionally, unemployed claimant must be actively engaged in looking for new employment. Employers must pay for a portion of an employee’s unemployment.  When determining if an employee is eligible to receive unemployment, the ESC contacts the former employer to determine why an employee lost their job. While layoffs are usually straightforward, disputes often arise when there is disagreement over whether an employee was fired for misconduct, forced to resign, or suffered some sort of retaliation from their employer.

Willful Misconduct in Unemployment Claims

In general, terminated employees are eligible for unemployment benefits, but not when willful misconduct on the part of the former employee lead to their being fired. What actually constitutes “willful misconduct,” however, can be contested.

Unemployment Claims Hearings

If a former employee is determined to be ineligible for unemployment benefits in the initial decision, they can appeal. A hearing, either live or by telephone, will be scheduled before a Referee to determine whether or not a former employee should receive benefits. Subpoenas can be issued for witnesses and evidence may be presented to support a claim that discrimination or retaliation was involved in the decision to fire the employee. Employers can also be liable for wrongful termination and may find themselves facing civil litigation and an investigation by the Equal Employment Opportunity Commission (EEOC).

Collins Law Firm can review a claimant’s case in order to form an opinion about whether the decision of the ESC is justified given the circumstances surrounding an employee leaving a job. We can advocate our client’s position by providing documentation that supports the claim and increase the likelihood of prevailing.   If you wish to have a confidential consultation, call us at 910-793-9000.

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.

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

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