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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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 should I do if there is a warrant out for my arrest?
Finding out that the police have a warrant out for your arrest can be a scary experience. In many cases, you do not learn this until the police come to your door to arrest you. Whether you have advance notice of the warrant or find out when you are arrested, here are important steps you need to take to protect your legal rights and to fight the charges you face.
#1: Retain an Attorney
Your first step should be to retain an experienced criminal defense lawyer immediately. They will be able to give you advice on what to do, be present at your arrest and during police questioning, and attend all court hearings with you. A skilled lawyer can also build a strong defense so that the charges are dismissed or reduced to a less serious offense with less harsh punishments.
#2: Contact a Bail Bondsperson
After consulting with your lawyer, you may want to contact a bail bondsperson who can help you arrange to post bail if that is an option. Making arrangements with a bail bondsperson before you are arrested can shorten the time that you must remain in jail.
#3: Turn Yourself In
Your next step would be to turn yourself in and cooperate with the police during the booking process. It is important to do so at the correct jurisdiction so that you do not have to spend unnecessary time in jail before your bail is set. Your lawyer or bail bondsperson may be able to recommend the best times of day to surrender to the police to increase the likelihood that you will be released quicker.
#4: Do Not Make Statements to the Police
You have a constitutional right to remain silent while in police custody. Do not make any verbal or written statements to law enforcement officers. Your lawyer should be present whenever they question you. You should also do the following:
- Do not make any statements anyone to in your jail cell or other inmates. These statements may also be used against you.
- Be careful of what you say when using a telephone at the police station or jail because your conversation may be recorded.
Our Charlotte Criminal Defense Lawyers Are Ready To Protect Your Rights Today
Is there a warrant out for your arrest in Mecklenburg County? Have you already been arrested? Contact our Charlotte office to schedule a free consultation to learn about our extensive criminal defense experience and how we can help you achieve the best outcome given your circumstances.
My child was recently arrested. Will he be charged as a juvenile or an adult?
If your child has been arrested, you are probably terribly worried about what will happen to him. In North Carolina, minors under 18 years old are often treated differently if they are charged with a minor misdemeanor offense and not a violent felony crime. They can be charged as a juvenile rather than as an adult and have their case decided in juvenile court.
What Are the Benefits of Being Charged as a Juvenile?
In our state, children between the ages of six and 17 are considered juveniles, and their criminal cases will start in juvenile court. Unlike the adult justice system, the goal in the juvenile court system is rehabilitation and helping the minor child to avoid committing another crime in the future. Here are some of the benefits of juvenile court:
- Infractions that juveniles commit are not referred to as crimes. They are called delinquent acts.
- In juvenile court, the proceeding is referred to as an adjudication hearing and not a trial. These hearings are also more private than in adult criminal cases, which are heard in open court.
- If the delinquent act was not violent, the child may be released prior to his adjudication hearing.
- Because the focus of punishment is rehabilitation, a minor’s sentence for nonviolent crimes will more likely be community service, education, and supervision rather than incarceration.
- A juvenile’s criminal records will be sealed so that they cannot be viewed by the public and will not have such long-term consequences on his life. If he successfully completes his sentence, he may be able to get his criminal record expunged when he turns 18 years old.
- Juveniles have a right to be represented by an attorney and will be appointed a public defender if they cannot afford to hire one.
When Could a Juvenile Be Charged as an Adult?
If a minor commits a more serious offense, such as a drug offense, weapons crimes, assaults, or other serious felonies, they can automatically be charged as an adult. Here are three situations when their case can be sent to adult criminal court:
- Prior adult charge. If a child had a previous criminal case transferred to adult court, any subsequent charges will also be heard in adult court no matter what the offense is.
- Discretionary transfer. If a minor is 13 years old or older and committed a felony, the judge in the juvenile court has the discretion to transfer the case to adult criminal court.
- Mandatory transfer. If a juvenile is charged with a Class A felony, such as first-degree murder, he will be charged and prosecuted as an adult.
Our Charlotte Criminal Defense Lawyers Are Ready To Protect Your Family Today
If your child was arrested in Charlotte, he needs an experienced criminal defense attorney to help him fight to have the charges dismissed or reduced so that he achieves the best possible outcome given his situation. To find out how we can help, contact our office to schedule a free consultation today.
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.
Our Charlotte Criminal Defense Lawyers Are Ready To Protect Your Rights Today
Are you facing criminal charges in Charlotte? Contact 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.
Charlotte Criminal Defense Attorneys With The Experience You Need
Have you been charged with possessing a firearm as a felon? Do you have questions about having a felony conviction expunged? Contact 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.