Frequently Asked Criminal Defense Questions and Answers
It’s normal to have many questions and concerns when you are charged with a crime in North Carolina. Here, our experienced lawyers draw on their knowledge of the law and years of experience as prosecutors to provide the answers you need to many of these common worries. Learn more about what criminal charges can mean for you, what to do next, and what to expect as you move forward.
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Should I hire a private criminal defense lawyer or use a public defender?
If you are arrested for a crime, you have many difficult decisions to make, such as how to plead to the charges, what defenses you should raise, and whether to accept a plea agreement. You should not make these decisions without the advice of an attorney. Should you use a public defender or hire an experienced criminal defense lawyer?
Drawbacks of Using a Public Defender
If a defendant cannot afford to hire a criminal defense attorney, the court will appoint a public defender to represent him. The benefit of this is that the lawyer is free. Many are also hardworking, experienced attorneys. However, there are major disadvantages to using a public defender:
- High caseloads. Public defenders are assigned very high caseloads, which means that they would have less time and attention to devote to their clients’ cases.
- Overworked. Public defenders are overworked and often must handle too many cases at one time. As a result, they can make mistakes or be more likely to recommend a client accept a plea agreement to get the case resolved.
Advantages of Retaining Your Own Criminal Defense Attorney
There are many advantages to retaining a skilled criminal defense attorney. Here are a few of the benefits:
- Choice. You have the right to choose the right lawyer for your case when you hire one on your own. You do not have any choice if a public defender is appointed to represent you.
- Smaller caseload. A lawyer in private practice will have a much smaller caseload than a public defender. He will have more time to devote to building a strong defense strategy for you and will be more available when you need him.
- More resources. In addition to having more time to devote to your case, a private criminal defense attorney will also have staff working on your case.
- Better outcome. The likelihood that you will achieve the best possible outcome given your circumstances is greater if you hire your own attorney since he will often work harder to achieve this goal for you.
Are you facing criminal charges in Charlotte? Call our office to schedule a free consultation to discuss your situation and how we can fight to get the charges dismissed or reduced to a less serious offense.
What is the penalty for possession of a firearm by a convicted felon?
Under North Carolina’s Felony Firearms Act, a felon is prohibited from possessing a firearm. If you violate this law, you could be charged with another felony crime that is punishable by a lengthy prison sentence.
What Is the Crime of Possession of a Firearm by a Felon?
The Felony Firearms Act makes it illegal for a person convicted of a felony to own, possess, or have in his custody, care, or control a firearm or any other weapon of mass death and destruction.
The Act spells out what is considered a firearm. It includes:
- Any weapon, including a starter gun, that can expel a projectile
- Firearm muffler or silencer
Antique firearms are not considered a firearm under the statute.
The law prohibits someone from possessing a firearm who has a felony conviction in North Carolina, another state, or under federal law. The prohibition is a lifetime ban. The only exception is if the felony conviction is for certain white-collar crimes, such as antitrust violations, unfair trade practices, or restraints of trade.
Construction and Actual Possession of a Firearm
A felon can be found in either constructive or actual possession of a firearm to be convicted of violating the Felony Firearms Act. A person would be in actual possession of a firearm if he has physical custody or possession of it.
Whether an individual is in construction possession of a firearm would depend on the facts surrounding his arrest. If he is aware of the firearm’s presence and has the ability to control its use or disposition, this may be sufficient to establish constructive possession of it. He is not required to have exclusive possession of the firearm.
What Are the Penalties for Possession of a Firearm as a Felon?
Possession of a firearm by a felon is a Class G felony. If convicted, it would be considered a second conviction under North Carolina’s sentencing guidelines because the underlying felony that resulted in the ban on possession of a firearm would be the first offense. You could be sentenced to 12 to 26 months in prison. Your punishment may be increased if you have other criminal convictions.
Can You Ever Have Your Right to Possess a Firearm Restored?
It may be possible to own a firearm again if your felony conviction is expunged. Under a new expungement law that went into effect in 2017, certain nonviolent misdemeanors and felonies may be expunged.
Have you been charged with possessing a firearm as a felon? Do you have questions about having a felony conviction expunged? Call our Charlotte office to schedule a free consultation with our experienced criminal defense attorneys today to learn how we can help you.
What defenses could I have after being arrested for shoplifting?
If you have been charged with shoplifting as a misdemeanor or felony in Charlotte, it would be a big mistake not to take the charges seriously. The punishment could be a jail or prison sentence, a large fine, and a permanent criminal record. Fortunately, even if you are guilty, you may have strong defenses that can result in the charges being dismissed or reduced to a less serious offense.
Defenses That Can Help You Fight Shoplifting Charges
There are a number of defenses that can be present in any criminal case, such as the failure to give you your Miranda warnings or questioning you after you invoke your right to remain silent that could be applicable to your arrest. However, there are also defenses specific to the crimes of shoplifting and what must be proven to convict you of this offense in North Carolina. The prosecutor must prove these two elements:
- You intentionally concealed or possessed items for sale.
- You intended to permanently deprive the business of the item without paying for it.
You will need the assistance of an experienced criminal defense attorney to identify and raise the defenses that you have to shoplifting charges. Some effective ones that he may use to defend you include:
- Lack of intent. Because the crime of shoplifting requires an intent on your part to intentionally conceal and possess the goods and to deprive the store of them, your lawyer may challenge this aspect of the prosecutor’s case. He may present evidence that you did not intend to steal the items. Depending on the facts in your case, he may be able to show that you accidentally forgot to pay or that you tried to go back and return the merchandise as soon as you realized your mistake.
- Challenging witnesses. In some cases, there is video footage of the shoplifting. However, the prosecutor may rely on witness testimony as to how they saw the crime being committed. These witnesses can be store employees, other customers, or bystanders. A skilled attorney may be able to challenge their observations as unreliable or completely false.
Facing Shoplifting Charges?
Have you been arrested for shoplifting in Charlotte? Our skilled legal team can help you build a strong defense to the charges that you face and will aggressively fight for the best outcome possible. To learn more about your defenses and options, schedule your free consultation today.
What are defenses to speeding to elude arrest charges?
In North Carolina, speeding to elude arrest is a serious offense that can be charged as a misdemeanor or felony. Fortunately, you may have defenses to these charges even if you believe that you are guilty. However, with the assistance of an experienced criminal defense attorney, you may be able to build a strong defense so that the charges are dismissed or reduced to a less serious offense.
What Is Speeding to Elude Arrest?
It is considered speeding to elude arrest to operate a motor vehicle on a highway, street, or public road while fleeing or attempting to flee a police officer who is performing his duties. It can be charged as a felony if at least two of a list of aggravating factors are present. Some of these factors include:
- Driving more than 15 mph over the speed limit
- Having a gross impairment of a person’s faculties due to intoxication caused by drug or alcohol use or having a blood alcohol content of 0.14 percent or higher
- Engaging in reckless driving under North Carolina laws
- Passing a school bus that is stopped
The penalties can include a jail or prison sentence, fines, and driver’s license suspension.
Common Defenses to Speeding to Elude Arrest
Fortunately, you may have defenses that can help you avoid the harsh penalties that you face. These defenses may result in the prosecutor not being able to meet the burden of proof for you to be found guilty. Some of these defenses include:
- Lack of knowledge. You must have known that the police officer was ordering you to pull over or was otherwise pursuing you in order to be convicted. If you can show that you had a lack of knowledge that you were being stopped, this could be a strong defense.
- Official capacity of an officer. You are only required to pull over if a police officer in his official capacity orders you to do so. If you did not know that the law enforcement official was acting in his official capacity, you may not have been obligated to stop.
- Self-defense. While a rare defense, you could claim you were acting in self-defense by fleeing if you were doing so to protect another person or yourself.
- No mitigating factors. If you are being charged with a felony, you may be able to get the charges reduced to a misdemeanor if you can show that no aggravating factors were present.
These are defenses specific to this crime. You may have other defenses that a skilled attorney can raise for you.
Were You Charged With Speeding To Elude Arrest?
Being charged with speeding to elude arrest could result in your imprisonment and in you having a permanent criminal record. If you face these charges, we are here to thoroughly investigate the circumstances leading to your arrest, build a strong defense, and fight for the best possible outcome. To learn more about how we can help, call our office to schedule your free consultation.
What are assault with a deadly weapons charges that I could face in North Carolina?
If you are charged with assaulting someone in North Carolina, you could be facing misdemeanor charges—even if you never touched anyone. However, you could be charged with a misdemeanor or more serious felony charge if a deadly weapon was used in the assault. A conviction can result in you being sentenced to prison and having a permanent criminal record. Because of these very serious consequences, you need to retain an experienced criminal defense attorney as soon as possible to help you build a strong defense to the charges that you face.
Misdemeanor Assault With a Deadly Weapon Charges
Most assault and battery charges are misdemeanor offenses in North Carolina. You can be charged with assault for threatening someone whereas battery requires actual physical contact. There are three general assault and battery crimes:
- Assault and battery that involves physically injuring someone else
- Assault, which can be an attempt to commit an assault and battery, or a show of force when it appears that an assault is imminent
- Affray, which is a fight between two or more people, in a public place that puts others in fear
There are a number of specific misdemeanor assault and battery offenses that are considered more serious, and the charge is a Class A1 misdemeanor rather than the less serious Class 2 misdemeanor charged in many simple assault cases.
Assault with a deadly weapon is one of the more serious misdemeanor offenses. A person can be charged with this offense if he commits an assault, assault and battery, or affray if he causes a person to suffer serious injury or uses a deadly weapon. While a deadly weapon is not defined in the statute, it can include a gun, knife, blunt object, or another object that is not generally considered a deadly weapon but could be used to kill a person.
A misdemeanor assault with a deadly weapon carries these possible penalties:
- Jail sentence of up to 60 days for a first offense or 150 days if there were prior convictions
- Probation—either supervised or unsupervised
- Fine with the amount in the judge’s discretion
Felony Assault With a Deadly Weapon Charges
You could be charged with assault with a deadly weapon as a felony if you committed the assault with the intent to kill or caused serious injuries, or both. What constitutes a deadly weapon is not specifically defined and includes a wide range of potentially dangerous objects. There are two levels of assault charges, and both involve these elements of the crime:
- Serious injury. Although not defined in the criminal statute, an injury is considered a serious injury if it requires medical attention whether or not the victim actually receives medical treatment.
- Intent to kill. This means that the person who committed the assault intended to kill the victim, and the intent can be established through the circumstances of the crime. This can include threats, other words, or prior angry incidents between the accused person and victim.
Assault with a deadly weapon can be charged as a Class E felony if there was serious injury or the intent to kill. If there is both serious injury and the intent to kill, the crime is often a Class C felony. A conviction could result in these penalties:
- Class E felony. This offense is punishable by 15 to 31 months in prison, but a judge must justify the sentence if he deviates from the presumptive sentence of between 20 to 25 months in prison. In addition, if there are prior convictions, the prison sentence can be extended up to 63 months.
- Class C felony. A Class C felony conviction can result in a prison sentence of 44 to 98 months, with a presumptive sentence of between 58 to 72 months. The sentence can be increased to 182 months if there are prior convictions.
Are You Facing Charges For Assault With a Deadly Weapon?
Given the risk that you may be sentenced to prison if convicted of assault with a deadly weapon, you should do everything you can to fight the charges that you face. Even if you are guilty, our experienced criminal defense attorneys can raise defenses that could result in the charges being dismissed or reduced to a less serious offense. To learn how we have helped other clients facing criminal charges and how we can assist you, call our office to schedule your free case review today.
Does it matter to my attorney if I am guilty of committing the crime?
If you know that you are guilty of committing a crime, you may worry that your attorney knows that you are guilty even if he does not ask you whether you committed the crime. This may lead to concerns about how well your lawyer can represent you if he believes that you are guilty. However, an experienced criminal defense attorney knows that the focus should not be on your guilt or innocence but on the strength of the case against you.
Factual vs. Legal Guilt in Criminal Cases
It is important to keep in mind that the focus of your defense is not whether or not you committed the act but whether the prosecutor can prove beyond a reasonable doubt that you are guilty. This is the difference between factual and legal guilt. Here is how it affects criminal cases:
- Factual guilt. Factual guilt refers to what you actually did. However, an experienced criminal defense attorney will not focus on this because you can be factually guilty but not legally guilty. A good attorney will focus on your legal guilt.
- Legal guilt. Legal guilt refers to whether the prosecutor can prove that you committed the crime beyond a reasonable doubt. Whether you committed the crime or not, you are not legally guilty unless the prosecutor has enough evidence to convince a judge or jury to find you guilty beyond a reasonable doubt. So your attorney’s focus should be on this question: What can the prosecutor prove? His tactics may be to attack the strength of the evidence against you—whether or not your attorney believes that you are guilty.
Why Guilt or Innocence May Not Matter to Your Criminal Defense Attorney
An attorney has a duty to zealously represent his clients in criminal matters—regardless of the person’s guilt. Under our criminal justice system, everyone charged with a crime has a right to a vigorous defense. This is a protection all accused people have under the United States Constitution. An attorney does not have a duty to prove a client’s innocence, so it does not really matter to him whether the person is guilty. His duty is to prove the person’s defenses to show that he is not legally guilty.
Guilt is also not that important because criminal defense attorneys often feel like they never really know whether their clients are guilty or not. Even if someone confesses to his attorney, it does not mean that he really did it. He could be covering for someone else or have another reason for lying. In addition, he may not be guilty of this offense, but could have committed a less serious offense. For these and other reasons, attorneys often do not ask about guilt when talking to clients in criminal cases and instead focus their questions to clients on building a strong defense.
While your attorney has a duty to provide you with a defense if there is one to raise, this does not mean that he can lie for you. If he knows that you are guilty of the crime, he could not claim that you did not commit the crime as a defense. However, this does not preclude him from raising defenses that show the weaknesses in the prosecutor’s case against you.
Let Us Help You Raise All Your Defenses to the Charges You Face
Whether you are guilty or innocent, you may have strong defenses that will show that the prosecutor cannot prove your guilt beyond a reasonable doubt. However, you will need the assistance of experienced criminal defense attorneys to identify and effectively raise your defenses. It is crucial to take this aggressive approach because it can result in the charges against you being dismissed or reduced to a lesser offense with less serious penalties. To learn more about our experiences defending our clients facing many different criminal charges and how we can help you, call our office to schedule your free consultation.
How can I help my attorney in my criminal case?
When you are facing any criminal charges—even traffic or misdemeanor offenses—you are facing serious consequences that could affect your life down the road. You could have a permanent criminal record that will impact the ability to obtain a job, a professional license, and a loan. If you face felony charges, the penalties are much more severe. So you want to do everything in your case to help reduce the negative consequences.
Ways You Can Assist Your Attorney With Your Criminal Defense
You and your attorney are a team. There are many ways that you can take a little control of what can feel like an uncontrollable situation and help your attorney with your defense. This is a way to positively influence what happens in your case. Ways that you can assist your attorney in defending you include:
- Be honest. Your attorney can only help you if you are honest with him. When he asks you a question, be honest in your answer. Your discussions with him are protected by the attorney-client privilege. Your answers could lead him to possible defenses—even if you are guilty. However, do not freely provide him with information that he does not ask for or confess your guilt. If you retain an experienced criminal defense attorney, he will know what he needs to know and does not want to discuss to best defend you.
- Discuss your goals. Once your lawyer has investigated your case, he will be able to tell you the strengths and weaknesses of your case and the possible outcomes. You should inform your attorney about your willingness to accept a plea agreement. Similarly, he needs to know if you want to fight your case and take it to trial if necessary.
- Discuss how much you can pay. You will need to discuss how much the attorney will charge for your defense and what you can afford to pay for expert witnesses, depositions, and private investigators in addition to his fees. This will help your attorney in developing your defense.
- Provide documents and information promptly. Provide your attorney with any documents, witness’ contact information, and any other information that will help in your defense as soon as possible. If you delay in sharing this information, you make it harder to build a strong defense.
- Communicate with your attorney. While you should not contact your attorney daily, you want to set a schedule for communicating with your attorney about your case and be in contact with him on those dates. Be certain that your lawyer always has your correct cell phone number, address, and email address so that he can contact you when necessary.
- Always be on time. You need to be on time for all court hearings and appointments with your attorney. You want to be early for your court hearings to avoid the risk of being late and making a bad impression with the prosecutor and judge, as well as inconveniencing your attorney. You should also dress appropriately for your court hearings.
- Don’t talk to the police. You should never talk to the police unless you have first discussed this with your attorney and he agrees and is present. Even if the police try to convince you that it is in your best interest to cooperate, it is not—unless it is done on the advice of your attorney.
- Stay off social media. You can help your attorney—and not hurt your criminal case—by staying off social media while your case is pending. If you must be on social media, do not discuss anything about your criminal case and be extremely careful in what you post. The prosecutor could search your social media postings.
- Follow your attorney’s advice. You hired your attorney because you thought that he could help you achieve the best possible outcome for your situation. You can help him achieve this goal for you by following his advice. When you do not follow his recommendations, you can weaken your defense and hamper his abilities to defend you.
- Pay your bills on time. You need to honor your agreement with your attorney and pay your bills on time. Your attorney is providing you with a valuable service. When you pay him late, he may not be able to hire the expert witnesses and private investigators he needs to mount an effective defense.
Once you retain an experienced criminal defense attorney, he can advise you on the best ways that you can help him.
Start Building Your Defense Team
The criminal defense attorneys at Browning & Long have helped hundreds of individuals mitigate the outcomes of their charges. To learn how our legal team can help you to fight the criminal charges you face, call our office or fill out our convenient online form to schedule a free consultation.
What are common grounds to suppress evidence and how could that help my criminal case?
If you are charged with committing a crime, you need the assistance of an experienced criminal defense attorney to help you fight the charges. An attorney should have strategies based on experience handling similar criminal cases—which may help in getting your charges dismissed or reduced to a crime with a less severe punishment. One important way that an attorney may be able to weaken or destroy the prosecution’s case against you is to file a motion to suppress evidence against you.
How Can a Motion to Suppress Evidence Help in Your Criminal Case?
It is critical to keep in mind that you are innocent until proven guilty in a criminal case—even if you know that you are guilty of committing the crime. The prosecution has the burden of proving your guilt beyond a reasonable doubt. This is a very high standard that the prosecutor cannot always meet, including cases where the accused is obviously guilty.
A motion to suppress evidence is filed to prevent certain pieces of evidence from being used against you in your criminal case. It can help your case in the following ways:
- If the suppressed evidence is essential to prove the criminal charges against you, its suppression could result in the criminal charges being dismissed.
- If the prosecutor has other sufficient evidence against you, the charges against you will not be dismissed. However, the suppressed evidence can severely weaken the prosecutor’s case against you and create reasonable doubt—sufficient for you being found not guilty. It could also result in the prosecutor offering you a more favorable plea agreement due to the lack of evidence against you.
Common Grounds to File a Motion to Suppress Evidence
In order to successfully file a motion to suppress evidence, you need to have legal grounds to argue that the evidence should be suppressed. These grounds are generally based on police misconduct and violation of your constitutional rights. An experienced criminal defense attorney will be able to identify grounds to file a motion to suppress evidence in your case. Common reasons to file this motion include:
- Unlawful searches and seizures. Under the Fourth Amendment, you are protected against illegal searches of your home, your property, and yourself. In general, police must have a valid search or arrest warrant or probable cause to believe that a crime was committed to stop, search, or arrest you. If the police did not have a proper warrant or probable cause, the evidence collected that supports the charges against you could be thrown out of court.
- Failure to give Miranda warnings. Once the police take you into custody, they must inform you of your Miranda rights under the constitution before questioning you further. This includes being advised of the right to remain silent, that any statements can be used against you, and your right to an attorney. If they fail to give you these warnings and you make an incriminating statement or confess to the crime, these statements can be suppressed. In addition, the police could violate your rights by trying to continue to question you after you invoke your Miranda rights.
- Coerced statements. If the police coerce you into confessing or making a statement, this may be grounds for suppression of your statement.
- Chain of custody errors. The police are required to follow strict procedures for the handling of and storage of evidence against you. This is to ensure that it is not tampered with or mixed up with evidence in another criminal case. When the police mishandle the evidence or otherwise violate the rules, the evidence can be suppressed.
- Witness identification. If you were identified in a police lineup, the police may have violated your rights by improperly suggesting that the witness identify you, failing to allow your attorney to attend the lineup, or failing to include other potential suspects in the lineup with a similar appearance. This can be grounds to suppress the witness’ identification—which could be crucial to proving you committed the crime.
- DUI testing results. There can be many challenges to the tests performed by the police as part of a DUI arrest. This can include violation of the many rules regarding field sobriety tests, improper administration of breathalyzer tests, or calibration problems with testing machines. In addition, many successful challenges to evidence are based on the lack of probable cause to stop the accused in the first place.
Talk to a Charlotte Criminal Defense Atttorney
If you are facing criminal charges, our experienced criminal defense attorneys are here to guide you through the criminal process. To learn more about how we can assist you, call our office today to schedule your free consultation.
How can I get a misdemeanor drug possession charge dropped in Mecklenburg County?
In Charlotte, there are a number of different misdemeanor drug possession offenses that a person may be charged with, including possession of marijuana and possession of drug paraphernalia. Being charged with such a crime, or any other misdemeanor drug possession charge, is a serious offense. Simply being charged can potentially impact all areas of your life, from employment, to educational and housing opportunities. If you have been charged with a misdemeanor drug possession offense, it is important to contact an experienced criminal defense attorney at Browning & Long, PLLC to help protect your rights.
The attorneys at Browning & Long, PLLC will not only help you understand your rights, but will also explore all possible defenses to ensure that you do not face any unnecessary consequences associated with your misdemeanor drug possession charge. This includes investigating every aspect of your case, and using the techniques described below to ultimately get your case dismissed, or dropped.
Potential Legal Issues with Drug Charges
If you were charged with a misdemeanor drug crime, do not assume that you are guilty. As former prosecutors, we understand the intricacies of the law and are aware of potential defenses that may be available in your misdemeanor drug case. Specifically, we will examine the following scenarios to ensure the police acted lawfully in charging and/or arresting you. If they did not act lawfully, it is likely that your misdemeanor drug crime will be dropped.
- Did the police have a lawful reason to stop you?
- Did the police have a valid reason to search the place or area they did?
- Were you aware of the illegal item or drug’s presence in the place it was located?
- Did you have possession of the illegal item or drug the police claim you did?
- Is the illegal item or drug what the police claim it is?
Drug Education Class in Charlotte
If, after thoroughly reviewing your situation, we determine that there are not any available legal defenses in your case, there are still other potential options to ultimately get your misdemeanor drug charge dropped. In certain situations, we can negotiate with the Mecklenburg County District Attorney’s Office to have you complete a drug education class for dismissal of your misdemeanor drug charge. Generally, this drug education class must be completed at a service provider approved by the prosecutor’s office. Exceptions may be made for our clients who reside outside of Charlotte. In either case, the class must be attended in-person and requires 15 hours of instruction. By retaining Browning & Long, PLLC, this all can be accomplished without you ever attending court.
North Carolina G.S. 90-96 – Conditional Discharge of Drug Charges
Even if the Mecklenburg County District Attorney’s Office refuses to allow you to complete a drug education class for dismissal of your misdemeanor drug charge, you may be eligible to have your case dismissed through a process known as conditional discharge. While case-specific, this process typically has several requirements, including the following:
- You either plead guilty or are found guilty of the misdemeanor drug possession offense
- You not have any prior convictions for certain criminal offenses, including felonies
- You complete an approved drug education class as directed by the court
- You satisfy any other requirements set by the court, such as community service and fines
- You are not charged with any new criminal charges within a designated period of time
Once you successfully complete the requirements ordered in your case, the judge shall discharge and dismiss the misdemeanor drug charges against you. This dismissal occurs without any judgment of guilt and is not considered a conviction. You are also eligible to file for an expunction, also known as expungement, of your criminal record, that is the fact that you were charged, under North Carolina G.S. 15A-145.2.
Do You Need Help With A Criminal Matter?
The criminal defense attorneys at Browning & Long PLLC have handle many misdemeanor drug charge cases and can help you get a favorable outcome too. Contact our office at 980-224-4482 or by submitting a contact form.