Common Questions and Helpful Answers About NC Criminal and DWI Charges
It is natural to have many questions and concerns when charged with a crime in North Carolina. These charges can have serious consequences and long-lasting effects on those charged with their families, so they need reliable answers quickly. Here, Todd Browning and Howard Long share their answers to many of these tough questions. Find out their thoughts on DWI, traffic charges, and many other crimes.
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How do police decide who to stop for drunk driving in Charlotte?
Police officers in Mecklenburg County and North Carolina Highway Patrol are trained to look for numerous visual clues and driver behavior patterns when deciding whether to make an investigative stop of a drunk driving suspect. These visual clues, identified by a National Highway Traffic Safety Administration (NHTSA) study on impaired drivers, help officers determine if there is enough reasonable suspicion to justify pulling you over for DWI.
Outside of DUI checkpoints, police must have reasonable suspicion to legally stop you for drunk driving.
How Police Determine Reasonable Suspicion for a DWI Stop
The visual clues identified by the NHTSA fall into one of the following four categories:
- Problems Maintaining Proper Lane Position
- Speeding and Braking Problems
- Vigilance Problems
- Judgment Problems
Visual clues used to identify Problems Maintaining Proper Lane Position include:
- Weaving within a lane
- Weaving across lane lines
- Straddling a lane line
- Turning with a wide radius
- Almost striking a vehicle or other object
Visual clues used to identify Speeding and Braking Problems include:
- Stopping problems (too far, too short, too jerky)
- Accelerating or decelerating for no apparent reason
- Varying speed
- Slow speed (10+ mph under limit)
Visual clues used to identify Vigilance Problems include:
- Driving in opposing lanes or wrong way on one way
- Slow response to traffic signals
- Slow or failure to respond to officer’s signals
- Stopping in lane for no apparent reason
- Driving without headlights at night
- Failure to signal or signal inconsistent with action
Visual clues used to identify Judgment Problems include:
- Following too closely
- Improper or unsafe lane change
- Illegal or improper turn (too fast, jerky, sharp)
- Driving on other than designated roadway
- Stopping inappropriately in response to officer
- Inappropriate or unusual behavior (throwing up, arguing)
- Appearing to be impaired
If an officer observed you exhibiting any of these behaviors, he may be legally justified in stopping you for drunk driving, but not always. For example, if you make an illegal turn, you have likely violated the law and an officer is likely justified in stopping you on that fact alone. On the other hand, if you were weaving within your own lane only, an officer is not likely going to be justified in stopping you. When a DWI stop is based on the driver weaving within a lane, North Carolina law generally requires weaving within a lane plus some other fact in order for an officer to make a stop.
Find Out if Your Charlotte DWI Could be Dropped
If an officer did not have a legal justification for pulling you over, it may be possible to have your drunk driving charge dismissed based on that lack of reasonable suspicion. If you have been arrested for DWI in the Charlotte metro area, contact a Mecklenburg County DWI defense attorney at Browning & Long, PLLC for a free consultation to evaluate your case and assist in making this determination.
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Will my NC driver’s license be suspended if I refuse to blow or if I'm arrested for DWI?
It depends. There are numerous instances where your driver's license will be revoked by North Carolina’s Division of Motor Vehicles (DMV) for issues involving or related to driving under the influence. The most common scenarios where the DMV will revoke your driver’s license is when you (i) willfully refuse to submit to chemical analysis (i.e. breath or blood test), (ii) are charged with and/or arrested for driving under the influence, or (iii) are convicted of driving under the influence.
License Suspension for Willful Refusal to Breathalyzer or Chemical Testing
The laws of most states, including North Carolina, highly encourage a person suspected of driving under the influence to submit to chemical analysis (i.e. breath or blood test). Such laws do so through the consequences implemented when a person refuses such testing. Specifically, North Carolina General Statute (N.C.G.S.) 20-16.2(a)(1) informs a driving under the influence suspect that they may refuse any chemical test, but doing so will result in their driver’s license being revoked for a period of one year, and in some cases even longer.
This often means that if you refuse a chemical test, your driver's license will be revoked for one year. It's important to know the difference between the various breath-testing instruments and the consequences of refusing to blow in these devices. For example, an alcohol screening test, often referred to as a Preliminary Breath Test (PBT), is a breath test that is typically administered roadside before you are arrested. Refusing to submit to this test is not considered a willful refusal and will not revoke your driver's license for a period of one year. Thus, an alcohol screening test is not considered a chemical test for this purpose. However, a breath test using the Intoxilyzer 5000 or Intox EC/IR II, as well as a blood draw, are considered chemical tests. If you refuse to submit to these tests, your driver's license may be revoked for a period of one year. The Intoxilyzer 500 and Intox EC/IR II are generally administered after you have been arrested and left the scene.
License Suspension After Being Charged and/or Arrested for DWI
Under North Carolina General Statute (N.C.G.S.) 20-16.5(b), a person driving under the influence is subject to civil revocation of their driver’s license if the following applies:
- A law enforcement officer has reasonable grounds to believe that the person has committed an implied consent offense;
- The person is charged with an implied consent offense;
- The law enforcement officer and the chemical analyst comply with the procedures of G.S. 20-16.2 and G.S. 20-139.1 in requiring the person's submission to or procuring a chemical analysis; and
- The person
- Willfully refuses to submit to the chemical analysis;
- Has an alcohol concentration of 0.08 or more within a relevant time after the driving;
- Has an alcohol concentration of 0.04 or more at any relevant time after the driving of a commercial motor vehicle; or
- Has any alcohol concentration at any relevant time after the driving and the person is under 21 years of age.
When your driver's license is revoked under N.C.G.S. 20-16.5(b), the minimum period of revocation is either 30 or 45 days depending on when your driver’s license was surrendered. If your driver’s license is surrendered within five (5) working days of the revocation (generally the day you were charged), the minimum revocation period is 30 days. If your driver’s license is not surrendered within five (5) working days of the revocation, the minimum revocation is generally 45 days from the date you surrender your driver’s license. Additionally, if you have a pending driving under the influence charge or other implied consent offense, your driver's license will be suspended indefinitely until all pending charges are resolved.
License Suspension After a Drunk Driving Conviction
A conviction for driving under the influence results in a mandatory revocation of a person’s driver’s license by the North Carolina Division of Motor Vehicles (DMV) under North Carolina General Statute (N.C.G.S.) 20-17(a)(2). The length of such driver’s license revocation largely depends on whether you have any prior impaired driving convictions, and if so, the amount of time that has passed since those convictions.
Contact Our Charlotte DWI License Restoration Lawyers
If your driver’s license has been revoked due to one of the three common scenarios discussed under this question, it is important to remember that there are often circumstances where a you may be able to legally drive with a limited driving privilege. A DWI defense attorney at Browning & Long, PLLC can assist you in getting you back on the road as soon as possible.
What factors will the court consider when sentencing me for a DUI conviction in Mecklenburg County?
If you have been convicted of DUI in Mecklenburg County, the level of punishment of you will face is determined by the existence and balancing of what are called grossly aggravating factors, aggravating factors, or mitigating factors. Several of the following legal terms can be difficult to grasp, so it's always best to consult with a DWI defense attorney if you've been charged.
Grossly Aggravating Factors for DUI Sentencing
Grossly aggravating factors are seen as more serious than aggravating factors. The State must prove any grossly aggravating factor beyond a reasonable doubt. With that, the first step in determining the level of punishment you will face if convicted of DUI is to find out whether any grossly aggravating factors exist.
Four grossly aggravating factors:
- A prior conviction for a DUI related offense (See N.C.G.S. 20-4.01(24a) for the list of offenses) if:
- the prior conviction occurred within seven years of the current DUI offense date;
- the prior conviction occurred after the current DUI offense date, but before or at the same time as the sentencing in the current DUI case; or
- the prior conviction was in District Court, the conviction was appealed to Superior Court, the appeal was withdrawn or the case was remanded back to District Court, and a new sentencing hearing for the case has not been held.
- At the time of the current DUI offense, you drove while your driver’s license was revoked and the revocation was for a DUI revocation under N.C.G.S. 20-28.2(a).
- Your DUI caused serious injury to another person.
- At the time of the current DUI offense, you drove while:
- A child under the age of 18 years was in the vehicle
- A person with the mental development of a child under the age of 18 years was in the vehicle; or
- A person with a physical disability preventing unaided exit from the vehicle was in the vehicle.
Aggravating Factors for DUI Sentencing
As mentioned, aggravating factors are considered less serious than grossly aggravating factors. However, like grossly aggravating factors, the State must prove any aggravating factor beyond a reasonable doubt. When there are no grossly aggravating factors, or where grossly aggravating factors exist but the judge decides to consider any aggravating and mitigating factors as well, the next step in DUI sentencing is to determine whether any aggravating factors exist.
Nine aggravating factors:
- Gross impairment of your faculties while driving or an alcohol concentration of 0.15 or more.
- Especially reckless or dangerous driving.
- Negligent driving that led to a reportable accident.
- Driving while your driver's license was revoked.
- Two or more prior convictions of certain motor vehicle offenses for which at least three points are assigned or which subject your driver’s license to revocation, if the convictions occurred within five years of the current offense, or one or more prior convictions of an offense involving DUI that occurred more than seven years before the current offense.
- Conviction under N.C.G.S. 20-141.5 of speeding to elude.
- Conviction under N.C.G.S. 20-141 of speeding by at least 30 miles per hour over the legal limit.
- Passing a stopped school bus in violation of N.C.G.S. 20-217.
- Any other factor that aggravates the seriousness of the offense.
Mitigating Factors for DUI Sentencing
After determining whether any aggravating factors exist, the next step in determining the appropriate level of punishment in DUI sentencing is to see if any mitigating factors exist. It is your burden to prove the existence of any mitigating factor by a preponderance of the evidence.
Eight mitigating factors:
- Slight impairment of your faculties resulting solely from alcohol, and an alcohol concentration that did not exceed 0.09 at any relevant time after the driving.
- Slight impairment of your faculties, resulting solely from alcohol, with no chemical analysis having been available to the defendant.
- Safe and lawful driving at the time of the offense, except for the DUI.
- A safe driving record.
- Impairment caused by a lawfully prescribed drug for an existing medical condition, and the amount of the drug taken was within the prescribed dosage.
- Voluntary submission to a substance abuse assessment and voluntary participation in the recommended treatment.
- Completion of a substance abuse assessment, compliance with its recommendations, and simultaneously maintaining 60 days of continuous abstinence from alcohol consumption, as proven by a continuous alcohol monitoring system.
- Any other factor that mitigates the seriousness of the offense.
DUI/DWI Sentencing Levels of Punishment
The determination of the appropriate DWI sentencing level of punishment involves balancing the presence of any grossly aggravating factors, aggravating factors, and mitigating factors mentioned above. The chart below summarizes the six sentencing levels and the corresponding punishments authorized by N.C.G.S. 20-179.
Aggravated Level One
Factors Fine Probationary Conditions Three or more grossly aggravating factors Up to $10,000 If suspended, must require 1-imprisonment of at least 120 days; AND 2-alcohol abstinence of at least 120 days to a maximum of the term of probation, as verified by CAM.
Imprisonment: 12 months minimum to 36 months maximum
Substance Abuse Assessment Required: Yes
Factors Fine Probationary Conditions 1. Grossly aggravating factor in N.C.G.S. 20-179(c)(4); OR
2. Two other grossly aggravating factors
Up to $4,000 If suspended, must require 1-imprisonment of at least 30 days; OR 2-imprisonment of at least 10 days and alcohol abstinence and CAM for at least 120 days
Imprisonment: 30 days minimum to 24 months maximum
Substance Abuse Assessment Required: Yes
Factors Fine Probationary Conditions One grossly aggravating factor Up to $2,000 If suspended, must require 1-imprisonment of at least 7 days; OR 2-alcohol abstinence and CAM for at least 90 days
Imprisonment: 7 days minimum to 12 months maximum
Substance Abuse Assessment Required: Yes
Factors Fine Probationary Conditions Aggravating factors substantially outweigh any mitigating factors Up to $1,000 If suspended, must require one or both of the following: 1-imprisonment for at least 72 hours 2-community service for a term of at least 72 hours
Imprisonment: 72 hours minimum to 6 months maximum
Substance Abuse Assessment Required: Yes
Factors Fine Probationary Conditions No aggravating or mitigating factors or aggravating factors are substantially counterbalanced by mitigating factors Up to $500 If suspended, must require one or both of the following: 1-imprisonment for 48 hours 2-community service for a term of 48 hours
Imprisonment: 48 hours minimum to 120 days maximum
Substance Abuse Assessment Required: Yes
Factors Fine Probationary Conditions Mitigating factors substantially outweigh aggravating factors Up to $200 If suspended, must require one or both of the following:
1-imprisonment for 24 hours
2-community service for a term of 24 hours
Imprisonment: 24 hours to 60 days maximum
Substance Abuse Assessment Required: Yes
Contact Our Charlotte DUI Lawyers if you have questions regarding a DWI arrest in Mecklenburg County by calling 980-224-4482.
- A prior conviction for a DUI related offense (See N.C.G.S. 20-4.01(24a) for the list of offenses) if:
What defenses could help me if I’m charged with domestic violence?
You face serious misdemeanor or felony charges if you are arrested for a domestic violence crime, such as assault on a female or assault with a deadly weapon. If convicted, you could face a lengthy jail or prison sentence and have a permanent criminal record. Because of the harsh consequences of a conviction, you must take your charges seriously and mount a strong defense to achieve the best possible outcome in your criminal case.
Defenses to Domestic Assault Crimes
You will need to retain an experienced criminal defense attorney as soon as possible after your arrest. They will be able to identify the strongest defenses given your particular situation. Common successful defenses include:
- Mistaken identity. The mistaken identity defense could be a strong one if you are innocent of the crime you were charged with committing and have an alibi that proves you were somewhere else when the domestic assault was being committed.
- Insufficient evidence. The prosecutor must prove all elements of the criminal offense beyond a reasonable doubt. You may be able to argue that they have not met this burden of proof if the victim does not have any physical injuries or there is no damage to the property where the assault occurred.
- Self-defense. If you were defending yourself from an attack by the victim, you could raise self-defense to fight the charges you face.
- False allegations. In some cases, a person will falsely accuse their current or former partner or spouse of domestic assault because of other issues going on in the relationship. If you were falsely accused of this crime, you need the help of a skilled lawyer to uncover the evidence that proves this.
- Consent. Consent of the victim to the domestic assault is a much rarer defense. However, if it applies to your unique circumstances, you may be able to argue that the person accusing you consented to the domestic violence.
Were you charged with a domestic violence offense? Our knowledgeable criminal defense legal team can mount a strong defense strategy that can help you get the charges dismissed or reduced to a less serious offense—even if you are guilty. To learn more about how we will aggressively fight for your rights, call our Charlotte office to schedule a free consultation today.
Can I be charged with DWI if I was intoxicated while I was a supervising driver for a teen driver?
Technically, you cannot be charged with DWI if you are intoxicated and supervising a young driver. However, you could be arrested for impaired supervision, which is very similar to a DWI offense and carries similar penalties under North Carolina law.
What Is Impaired Supervision?
N.C.G.S. 20-12.1 makes it against the law for an individual to serve as a supervising driver or instructor while intoxicated. The offense of impaired supervision can be committed by acting as a supervising driver for a teen driver under one of the following circumstances:
- Being under the influence of an impairing substance
- Having consumed enough alcohol that the individual’s blood alcohol content is 0.08 percent or higher
Who Is Permitted to Be a Supervising Driver?
Before a teen obtains a driver’s license, they must be issued a learner’s permit and are only permitted to operate a vehicle while a supervising driver is in the vehicle beside them. In order to be considered a supervising driver, the person must be a parent, grandparent, or guardian of the young driver or a responsible person who is approved to act as a supervising driver by the teen’s parent or guardian.
What Are the Penalties for Impaired Supervision?
Impaired supervision is an implied consent offense and is charged as a Class 2 misdemeanor. If convicted, a person can be sentenced to up to 60 days in jail, a fine, and court costs. In addition, their driver’s license would be immediately suspended at the time of their arrest as it would be if they were the intoxicated driver and arrested for DWI.
Were you charged with DWI or impaired supervision in Mecklenburg County? Call our Charlotte office to schedule a free consultation with our experienced DWI lawyers to learn how we can help you mount an aggressive defense strategy that could result in the charges against you being dismissed or reduced to a less serious offense.
Am I eligible for a conditional discharge if I was charged with a drug crime?
If you plead guilty or are found guilty of a drug offense, one option the judge has is to sentence you to a conditional discharge. If the judge granted this less serious punishment, you would be placed on probation for a certain length of time and must follow all the conditions set by the court. At the end of your probation, your case would be dismissed if you successfully completed it.
When Can You Obtain a Conditional Discharge for a Drug Offense?
There are special rules under N.C.G.S.90-96 when a person is eligible for a conditional discharge in a drug crime case. Under subsection (a), defendants could be granted this relief for the following offenses:
- Misdemeanor possession of a Schedule I-VI controlled substance
- Felony possession of a controlled substance
- Misdemeanor possession of drug or marijuana paraphernalia
In addition, a defendant must meet these requirements:
- Have no prior felony convictions
- Have no conviction under Article 5 of N.C.G.S. Chapter 90
- Have never received a conditional discharge under 90-96 or 90-113.14
A conditional discharge under subsection (a) is mandatory if the defendant consents to it unless the court determines upon the written objection of the prosecutor that they should not receive this remedy for reasons associated with their crime.
A judge also has the discretion to grant a conditional discharge under subsection (1a) of N.C.G.S. 90-96. Any prior convictions and prior conditional discharges that are more than seven years old would not count in determining a defendant’s eligibility for this type of dismissal. These conditions must be met:
- The defendant must be placed on probation for a minimum of one year.
- The defendant must enroll in and complete an approved drug counseling program within 150 days of being placed on probation unless there is no school is available or there are other extenuating circumstances.
Were you arrested for a drug offense in Charlotte? Our experienced criminal defense attorneys can mount a strong defense to fight the charges you face and can help you decide if a conditional discharge is the right option for you. Call our office or fill out our convenient online form to schedule your free consultation to learn more about your options.
How long will my protective order last?
If you are the victim of domestic abuse in Charlotte, you have ways to protect yourself from your abuser under North Carolina law. One option is to file a civil action to obtain a domestic violence protective order (DVPO), which is also referred to in our state as a restraining order, a 50B order, or a no-contact order.
Your order will prevent your abuser from having any contact with you. However, it is only in effect for a certain length of time. It is important to know how long it will last so that you can take additional steps to protect yourself before it expires.
Two Types of DVPO Orders
There are two types of no-contact orders that you can obtain when you file a DVPO petition. They are:
- Ex-parte temporary protective order. This type of order is designed to give you immediate protection from being abused. You may be able to obtain this order immediately if the judge believes that you are in imminent danger.
- DVPO final order. A final domestic violence protection order can be issued after a full hearing. It will prohibit your abuser from abusing, threatening, assaulting, or harassing you, having any contact with you or your children, and more.
How Long Do Domestic Violence Protections Orders Protect You?
An ex-parte temporary protective order will be in effect for a short period of time. The temporary order will only last until a hearing on your final order, which will usually take place within 10 days, or within seven days of the date your abuser is served with the temporary order, whichever is later.
The final restraining order will protect you for one year from the date of the order. However, you can have it extended for an additional two years. To get this additional protection, you must file a petition for the extension before the original order expires.
Are you the victim of domestic abuse or accused of abusing someone? Our experienced criminal defense attorneys are here to help. Call our Charlotte office to schedule your free, no-obligation case evaluation today.
What defenses could help me fight assault and battery charges?
Depending on the circumstances surrounding your arrest, you could be charged with assault and battery as a misdemeanor or felony in North Carolina. If convicted, you can face a jail or prison sentence, fines, and would have a permanent criminal record. However, you may have strong defenses that can help you fight the charges and reduce or eliminate the harsh consequences you face.
Four Defenses to Assault and Battery Charges
You can be charged with assault for threatening someone with bodily harm that puts them in reasonable fear—even if you did not touch them. To be charged with battery, there would need to be some physical touching.
You will need to hire an experienced criminal defense attorney to help you identify and effectively raise defenses that would work in your case. Here are some common defenses that have helped people fight these charges in Charlotte:
- Self-defense. One of the most common defenses raised in these cases is self-defense. When raising this defense, you would need to show that the victim was the attacker and you were defending yourself.
- Defense of others. If you were defending another individual being attacked, you could raise the defense of others to fight the charges.
- Misidentification. In some cases, a witness or the victim misidentifies the perpetrator. If this is true in your case, you could argue that the police arrested the wrong person.
- Alibi defense. An alibi defense could be raised with a claim of misidentification if you have an alibi that can help you prove you were somewhere else at the time the assault and battery was committed.
- Consent. If you raise this defense, you would need to prove that the victim consented to fight with you.
Were you charged with assault and battery in Mecklenburg County? Our knowledgeable criminal defense team can identify the defenses that could work in your case and will fight aggressively to achieve the best possible outcome for your situation. To learn about how we have defended other clients facing similar charges and how we can assist you, call our Charlotte office to schedule a free case evaluation today.
What happens if I miss my traffic court hearing scheduled for my traffic ticket case?
In North Carolina, you must attend a mandatory court hearing to resolve many traffic ticket violations. You cannot just plead guilty and mail in your payment like in other states. In addition, you face harsh penalties if you do not attend your scheduled court hearing.
When Are You Required to Attend a Court Hearing to Resolve a Traffic Ticket?
There are at least 17 traffic violations in our state that require you to attend a mandatory court hearing to find out your sentence. Even if you are able to waive going to court, it is rarely in your best interests to simply plead guilty given the serious punishments and long-term consequences you face. Here are a few common traffic infractions where you must go to court:
- Driving when your driver’s license is suspended or revoked
- Driving while intoxicated
- Driving with an open container of alcohol in your vehicle after drinking
- Reckless driving
- Speeding by 15 mph or more while driving over 55 mph
- Aggressive driving
- Passing a stopped school bus
- Driving without required auto insurance
Penalties You Face If You Miss Your Court Hearing
If you fail to appear at your court hearing, you will be given 20 days to make up the missed court hearing. After this 20-day period elapses, the judge would issue a Failure to Appear (FTA). Here is what could happen to you once a FTA is issued:
- You would be assessed an additional $200 late fee that must be paid in addition to the fine for the traffic violation.
- The court clerk would report your FTA to the North Carolina Department of Motor Vehicles (DMV). The DMV would send you a letter advising you that they would revoke your driver’s license if you do not resolve your court hearing by a certain deadline.
- If your traffic violation was a misdemeanor offense, such as reckless driving, the judge could immediately issue a FTA instead of giving you 20 days to attend a new hearing and issue a warrant for your arrest.
What Should You Do If You Missed Your Court Hearing?
If you realize that you did not attend a required court hearing, you should contact the court clerk immediately to reschedule your hearing. Then you should retain an experienced traffic ticket attorney who can mount a strong defense so that the traffic ticket is dismissed or reduced to a less serious offense.
Were you issued a traffic violation in Mecklenburg County? Did you miss your court hearing? Our knowledgeable legal team will explain your options and defenses to you and fight so that you achieve the best possible outcome given your situation. To learn more, call our Charlotte office to schedule your free consultation today.
How can I find a copy of my traffic ticket if I lost it?
If you lost your traffic ticket issued in Charlotte, you may not think it is a big deal, but it really is. Unlike in other states, you are required to attend a mandatory court hearing to resolve many traffic offenses, such as speeding, passing a school bus, and improper passing. You could face serious consequences if you do not appear at it.
How to Locate a Copy of Your Traffic Ticket
You should act quickly if you lose your traffic ticket. Ways to obtain a copy of it include:
- Court website. You can find your traffic citation on the North Carolina Court’s website. You can search on the Citation Lookup Page by the traffic citation number or your name.
- Traffic court. You can contact the traffic court in the county where you were issued your ticket and obtain a copy of it. You should check the court’s website to see if you can order your ticket online.
If you obtain your traffic on the court’s website, it may not provide you with all the information you need to resolve your ticket. You may need to contact the traffic court directly to find out these details.
You Face Serious Consequences If You Fail to Attend Your Court Hearing in Your Traffic Ticket Case
You could face severe consequences if you miss your court hearing. You could be assessed an additional $200 or more in fines, or your driver’s license could be suspended or revoked. If the traffic offense was serious, the judge could issue a warrant for your arrest, or you could face additional criminal charges.
Did you receive a traffic ticket in Mecklenburg County? Even if you believe that you committed the traffic violation, you may have defenses that can help you get the ticket dismissed or reduced to a less serious infraction. Our experienced traffic ticket attorneys are here to explain your options and defenses and fight so that you achieve the best possible outcome. To learn more, call our Charlotte office to schedule your free consultation today.