Criminal Defense

A victim can push or criminal charges to be dropped, but it’s the State’s case.  The DA’s Office thinks twice before just listening to what a Victim wants to do with a case, so that they make sure that the Victim is not being pressured by someone, especially the Defendant, to try to drop the

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DMV License Restoration

I field this question often.  I advise people that I can paint my house, but if I want it done properly, and without inconvenience, then I’ll hire someone.  Additionally to that, when someone is on a group insurance policy, has had tickets in the past, have multiple charges, were charged going a high rate of speed, etc., the stakes go up significantly.  I’m admittedly biased as I’m in the industry and have seen what happens to people when they try to handle things themselves.  Hire someone and ask yourself after it’s over if you’d do it again.  You don’t want to regret it and not be able to turn back time.

We get calls all of the time from people that say it’s an emergency because their insurance just went up after they thought the DA’s Office helped them out.  Nobody at the DA’s Office is allowed to give you legal advice.  Judges can’t either.  Sometimes even a 5-over can ding you with insurance point(s).

Can we reverse time and change what happened?  Sometimes.  But even when we can, it’s about 2-3x more expensive than if they would have just called a lawyer in the first place.  This doesn’t even take into account the time that one takes by traveling to the courthouse, sitting in line for sometimes hours, not getting any legal advice, and then not knowing what to do and asking for a continuance so that you can potentially do it all over again.  I often help non-attorneys in the courthouse hallways when they have a ticket in their hand, a dazed look on their face, and seem to be frustrated with the entire situation.

On a side note, some ways to resolve a ticket will have a larger court cost than what it would have been if just paying the ticket.  For instance, non-moving violations in Mecklenburg County are $263, but a 5 or 9-over is less.  One thing to keep in mind is that it’s not about the money you spend today, but it’s about the money you’ll spend over time if not handled properly and insurance companies raise your rates based on insurance points.

Pic - Speeding Ticket

This is main question I receive from friends, people at parties, individuals currently being pulled over, and by clients during their initial consultations.  This is a two-tiered answer.

  1.  Blowing on the side of the road via the Portable Breath Test:  This is something you are not legally required to do.  Law enforcement will try to pressure you into taking this test so that they have a better idea of where you are from a BAC perspective.  If you decline the test, they have to base their decision of “Arrest vs. Not to Arrest” on the other evidence they have obtained.  This evidence could be items such as admissions, witness statements, field sobriety tests, etc.  Officer will routinely say that they just want to see where you are to make sure you are safe to drive home.  The positive of blowing and blowing under the limit is that they may let you go.  But if over, they will surely arrest you.  If you decline, and have any other evidence against you, you are likely being arrested.  My thought is that if you know you’re over the limit, there is little benefit to blowing.
  2. EC/IR II (either at the police station or the BAT Mobile – both being post-arrest):  This is where the real decision comes in.  If you refuse, the DMV will suspend your license for a year.  Then it becomes a case within a case, as lawyers have to manage both the underling criminal case, as well as the Refusal.  We like to request for Refusal Hearings so that you aren’t suspended for any longer than required.

But back to the main question:  When an officer asks you at the station to blow, and threatens your license being suspended, what do you do?

If having a license means nothing to you (because you both live and work in uptown, and/or never drive), then it may help your case to refuse.  This could be less evidence that the State has against you in the criminal case.  The problem is that officers could still get a warrant, take you to a local hospital, and draw your blood.  But even if this happens, it could buy you 30-60 minutes, which could make all the difference.

If a license means everything to you and getting a DWI won’t get you fired, it may be better to give the breath sample.  You may blow way over the limit, and have a 45-day waiting period for a limited driving privilege, but 45 days is better than 1 year.

This is just the beginning of the analysis.  Each case has it’s own facts, which changes everything, especially if people have prior charges of DWI. That’s why it pays to have your attorney on speed-dial.  When I get the call at 2am, it always helps them make a more informed decision.

PJC’s (Prayer for Judgment Continued) are issued by judges, not a deal given by the DA’s Office.  This is a common misconception in NC, with individuals feeling like they can just ‘use a PJC’ and then find out that the Judge can deny it.  PJC’s are great tools to prevent license suspension and DMV points, but they need to be used strategically as they can sometimes hurt you more than help you if used improperly.

Do the research first.  It will save you from paying someone like me to attempt to re-open a case, reverse time, and change what already happened.

– Attorney Ryan T. Smith


Guardianship

DSS is considered the guardian of last resort.  That said, the Court will take into consideration the best interests of the Respondent/Ward (alleged incompetent person), and do what they feel is necessary to protect the Respondent/Ward.

The good news is that even if DSS is appointed guardian, we can likely work with DSS to convince them to turn over guardianship.

Most people notice the difference between Power of Attorney (“POA”) and Guardianship right before they decide to schedule a consultation.  They are surprised that their power of attorney document doesn’t give them the power that they originally expected.  In a nutshell, a POA is voluntary, and revocable, and Guardianship is court-ordered and not revocable.

If I give my sister a POA, she would be able to make decisions (according to the powers designated by the POA) until I revoke her power.  If at any time I change my mind, I can just rip up the document in front or her and tell her that she’s out.

Guardianship becomes necessary when A) one does not have an estate plan and they become too far incapacitated to start an estate plan, and B) when one does not allow for their loved ones to keep the POA and/or decide to make decisions that one normally would not make if they were in their right state of mind.  Guardianship is done (at least in NC) by hearing and a Guardian ad Litem is assigned to make a recommendation at the hearing as to what is in the person’s best interests.  Guardianship can only be reversed by a subsequent court-order, which is protection against someone that continues to make bad decisions for themselves.

-Attorney Ryan T. Smith


DWI

Unfortunately, yes.  There are two (2) ways to convict someone of DWI.  The first is through a number (BAC or Blood), and the second is by showing general impairment (mostly through field sobriety tests/admissions, etc.).  But what if you blow a 0.07 and do well on the field sobriety tests?

You still could be convicted, although it’s likely because the Prosecution would try to say that the ‘impairing substance’ is not only alcohol, but some other impairing substance.  This occurs often with cases in which marijuana and/or other drugs are found in the vehicle or on the defendant’s possession.  The Prosecution’s argument is strengthened further if the defendant admitted to taking an impairing substance (other than alcohol) prior to driving.

If no other substance is offered other than alcohol, and the BAC is registered at a 0.07, the Prosecution’s best argument at that point is that although the defendant now blows a 0.07, he was above that level at the time he was driving.  This is commonly referred to as Retrograde Extrapolation, and will be discussed in great detail in the next blog post.

This post has historically brought up hundreds of questions.  Email us at defense@rtslawgroup.com or call/text us anytime at 704-954-4000.

This is main question I receive from friends, people at parties, individuals currently being pulled over, and by clients during their initial consultations.  This is a two-tiered answer.

  1.  Blowing on the side of the road via the Portable Breath Test:  This is something you are not legally required to do.  Law enforcement will try to pressure you into taking this test so that they have a better idea of where you are from a BAC perspective.  If you decline the test, they have to base their decision of “Arrest vs. Not to Arrest” on the other evidence they have obtained.  This evidence could be items such as admissions, witness statements, field sobriety tests, etc.  Officer will routinely say that they just want to see where you are to make sure you are safe to drive home.  The positive of blowing and blowing under the limit is that they may let you go.  But if over, they will surely arrest you.  If you decline, and have any other evidence against you, you are likely being arrested.  My thought is that if you know you’re over the limit, there is little benefit to blowing.
  2. EC/IR II (either at the police station or the BAT Mobile – both being post-arrest):  This is where the real decision comes in.  If you refuse, the DMV will suspend your license for a year.  Then it becomes a case within a case, as lawyers have to manage both the underling criminal case, as well as the Refusal.  We like to request for Refusal Hearings so that you aren’t suspended for any longer than required.

But back to the main question:  When an officer asks you at the station to blow, and threatens your license being suspended, what do you do?

If having a license means nothing to you (because you both live and work in uptown, and/or never drive), then it may help your case to refuse.  This could be less evidence that the State has against you in the criminal case.  The problem is that officers could still get a warrant, take you to a local hospital, and draw your blood.  But even if this happens, it could buy you 30-60 minutes, which could make all the difference.

If a license means everything to you and getting a DWI won’t get you fired, it may be better to give the breath sample.  You may blow way over the limit, and have a 45-day waiting period for a limited driving privilege, but 45 days is better than 1 year.

This is just the beginning of the analysis.  Each case has it’s own facts, which changes everything, especially if people have prior charges of DWI. That’s why it pays to have your attorney on speed-dial.  When I get the call at 2am, it always helps them make a more informed decision.

The distinction between a 0.14 blood alcohol content vs. 0.15 blood alcohol content, is critical if convicted of DWI in NC.  If 0.15 or higher, defendants could face not only a 45-day waiting period before having any ability to drive, but they may also be required to have an Ignition Interlock System installed on their vehicle.  **This situation discussed below will assume there are no outside factors other than being arrested for DWI for the first time.  Other factors, especially prior DWI convictions, can further complicate the issue.  

45-Day Waiting Period

Upon the gavel hitting the bench, no driving for 45 days, period.  If you are found guilty of DWI and a blood alcohol content of 0.15 or greater is accepted into evidence, there is a mandatory 45-day waiting period before being eligible for a Limited-Driving Privilege.  This is crucial for individuals that need to drive, especially for their job or for family purposes.  If there is any way to fight against the BAC being admitted into evidence, this is where attorneys prove their value.  NCGS 20-139.1 states, specifically in b(2) and b(3) that preventative maintenance needs to be performed according to standards, and that the two (2) sequential BAC readings shall not be off by more than 0.02.  These issues, as well as a host of others, are what attorneys routinely verify and argue about during trials and pre-trial motions.

Ignition Interlock System Installed on Vehicle

Additionally, adding insult to injury, the DMV requires that anyone blowing a 0.15 or higher BAC to install an Ignition Interlock System on their vehicle for a period of one (1) year.  See the following government form, Officer’s Affidavit, that routinely gets sent to the DMV after a DWI charge:  Affidavit  Number 12 is the notable box here, and if it is checked and submitted to the DMV, it may not even matter if one is convicted or not.  The DMV is it’s own entity and could require the defendant to install an Ignition Interlock System anyway.  This machine requires an initial blow to start the vehicle, and random blows during the drive.  In additional to being considered embarrassing, there is also a monthly cost, as well as an installment cost.  Not only that, but if the system traces alcohol at any time, it may trigger a violation that could suspend your license, unless a hearing is requested.

In summary, 0.14 vs. 0.15 is a huge distinction.  This could save embarrassment, cost, a long suspension, and could even be the difference between being found guilty or not guilty.

Attorney Ryan T. Smith

Posted on July 2, 2016 by Ryan Smith

This is main question I receive from friends, people at parties, individuals currently being pulled over, and by clients during their initial consultations.  This is a two-tiered answer.

Blowing on the side of the road via the Portable Breath Test:  This is something you are not legally required to do.  Law enforcement will try to pressure you into taking this test so that they have a better idea of where you are from a BAC perspective.  If you decline the test, they have to base their decision of “Arrest vs. Not to Arrest” on the other evidence they have obtained.  This evidence could be items such as admissions, witness statements, field sobriety tests, etc.  Officer will routinely say that they just want to see where you are to make sure you are safe to drive home.  The positive of blowing and blowing under the limit is that they may let you go.  But if over, they will surely arrest you.  If you decline, and have any other evidence against you, you are likely being arrested.  My thought is that if you know you’re over the limit, there is little benefit to blowing.

EC/IR II (either at the police station or the BAT Mobile – both being post-arrest):  This is where the real decision comes in.  If you refuse, the DMV will suspend your license for a year.  Then it becomes a case within a case, as lawyers have to manage both the underling criminal case, as well as the Refusal.  We like to request for Refusal Hearings so that you aren’t suspended for any longer than required.

But back to the main question:  When an officer asks you at the station to blow, and threatens your license being suspended, what do you do?

If having a license means nothing to you (because you both live and work in uptown, and/or never drive), then it may help your case to refuse.  This could be less evidence that the State has against you in the criminal case.  The problem is that officers could still get a warrant, take you to a local hospital, and draw your blood.  But even if this happens, it could buy you 30-60 minutes, which could make all the difference.

If a license means everything to you and getting a DWI won’t get you fired, it may be better to give the breath sample.  You may blow way over the limit, and have a 45-day waiting period for a limited driving privilege, but 45 days is better than 1 year.

This is just the beginning of the analysis.  Each case has it’s own facts, which changes everything, especially if people have prior charges of DWI. That’s why it pays to have your attorney on speed-dial.  When I get the call at 2am, it always helps them make a more informed decision.


Traffic Tickets

Good people often try to pay off old tickets when trying to clear the suspensions on their driver’s license.  Although this seems like a responsible act, it could be the act that further suspends their license.

In NC, being convicted of a moving violation, during a period of suspension, triggers a further suspension.  Paying a speeding ticket off is considered pleading guilty.  Therefore, before paying off anything, consult with a Charlotte speeding ticket lawyer first to make sure you’re not digging a deeper hole.  Unless the issue is very clear, the best first-step is to pull you NC Driving Record in order to formulate a game-plan.  If you don’t know, call someone for help.  It’s much more expensive to fix problems after they are handled incorrectly.  Some problems can’t be reversed.

I field this question often.  I advise people that I can paint my house, but if I want it done properly, and without inconvenience, then I’ll hire someone.  Additionally to that, when someone is on a group insurance policy, has had tickets in the past, have multiple charges, were charged going a high rate of speed, etc., the stakes go up significantly.  I’m admittedly biased as I’m in the industry and have seen what happens to people when they try to handle things themselves.  Hire someone and ask yourself after it’s over if you’d do it again.  You don’t want to regret it and not be able to turn back time.

We get calls all of the time from people that say it’s an emergency because their insurance just went up after they thought the DA’s Office helped them out.  Nobody at the DA’s Office is allowed to give you legal advice.  Judges can’t either.  Sometimes even a 5-over can ding you with insurance point(s).

Can we reverse time and change what happened?  Sometimes.  But even when we can, it’s about 2-3x more expensive than if they would have just called a lawyer in the first place.  This doesn’t even take into account the time that one takes by traveling to the courthouse, sitting in line for sometimes hours, not getting any legal advice, and then not knowing what to do and asking for a continuance so that you can potentially do it all over again.  I often help non-attorneys in the courthouse hallways when they have a ticket in their hand, a dazed look on their face, and seem to be frustrated with the entire situation.

On a side note, some ways to resolve a ticket will have a larger court cost than what it would have been if just paying the ticket.  For instance, non-moving violations in Mecklenburg County are $263, but a 5 or 9-over is less.  One thing to keep in mind is that it’s not about the money you spend today, but it’s about the money you’ll spend over time if not handled properly and insurance companies raise your rates based on insurance points.

Pic - Speeding Ticket

First ever ticket?

Even if it’s your first ticket of all time and you’ve had no accidents, I still advise people not to just pay it because you never know when your next ticket is going to be.  Nobody plans to be pulled over when you’re just going with the flow of traffic.  If you can keep it off your record, or at last amended to a something that will not give you any DMV or Insurance points, you are setting yourself up for a better situation if you were to be pulled over again.

Record is already messy?

It’s a no-brainer at this point to at least get an attorney’s opinion.  All depends on the beloved driving record, especially in North Carolina.  The cost of an attorney could be heavily outweighed by the insurance hit over the next 3 years.

Already Suspended?

DO NOT just pay it.  This will likely trigger an automatic suspension.

Speeding Ticket infractions (lower speeds, mostly 15 mph or under), are able to be paid and it usually has the amount listed on the bottom of the ticket.  The problem is that by paying it, you are pleading guilty to a moving violation which could trigger insurance points, and even a suspension in some situations.  All depends on your risk tolerance, although it’s a heck of a lot more expensive to try to fix (if even possible), once it’s paid.

– Attorney Ryan T. Smith

PJC’s (Prayer for Judgment Continued) are issued by judges, not a deal given by the DA’s Office.  This is a common misconception in NC, with individuals feeling like they can just ‘use a PJC’ and then find out that the Judge can deny it.  PJC’s are great tools to prevent license suspension and DMV points, but they need to be used strategically as they can sometimes hurt you more than help you if used improperly.

Do the research first.  It will save you from paying someone like me to attempt to re-open a case, reverse time, and change what already happened.

– Attorney Ryan T. Smith

Posted on June 8, 2016 by Ryan Smith

I field this question often.  I advise people that I can paint my house, but if I want it done properly, and without inconvenience, then I’ll hire someone.  Additionally to that, when someone is on a group insurance policy, has had tickets in the past, have multiple charges, were charged going a high rate of speed, etc., the stakes go up significantly.  I’m admittedly biased as I’m in the industry and have seen what happens to people when they try to handle things themselves.  Hire someone and ask yourself after it’s over if you’d do it again.  You don’t want to regret it and not be able to turn back time.

We get calls all of the time from people that say it’s an emergency because their insurance just went up after they thought the DA’s Office helped them out.  Nobody at the DA’s Office is allowed to give you legal advice.  Judges can’t either.  Sometimes even a 5-over can ding you with insurance point(s).

Can we reverse time and change what happened?  Sometimes.  But even when we can, it’s about 2-3x more expensive than if they would have just called a lawyer in the first place.  This doesn’t even take into account the time that one takes by traveling to the courthouse, sitting in line for sometimes hours, not getting any legal advice, and then not knowing what to do and asking for a continuance so that you can potentially do it all over again.  I often help non-attorneys in the courthouse hallways when they have a ticket in their hand, a dazed look on their face, and seem to be frustrated with the entire situation.

On a side note, some ways to resolve a ticket will have a larger court cost than what it would have been if just paying the ticket.  For instance, non-moving violations in Mecklenburg County are $263, but a 5 or 9-over is less.  One thing to keep in mind is that it’s not about the money you spend today, but it’s about the money you’ll spend over time if not handled properly and insurance companies raise your rates based on insurance points.