Raleigh Drug Lawyer: Constructive Possession of Drugs

On 02.10.10, By Damon Chetson

Constructive possession of a controlled substance – a drug like marijuana, cocaine, crack, heroin, LSD, or meth – exists where you do not have actual physical possession of an illegal drug, but have both:

1) knowledge of the drug’s presence on or about your property and

2) the ability to maintain dominion and control over it.

More than one person might have constructive possession of a controlled substance. For instance, a single person may have control and dominion of an apartment in which a drug exists. Or several people may have control and dominion over that area.

If someone is in close proximity to the drug, then the prosecutor might be able to prove actual possession. Constructive possession would not apply.

What is Considered “Knowledge”?

Knowledge has two parts:

The defendant must know that the substance is on or around his or her property. This knowledge does not have to be actual, but for instance, if you allow drug dealers to use your home and operate out of your home, you may have constructive knowledge of the drug even if you actually didn’t see it with your own eyes.

In addition, you must know or should know that the drug is illegal. So, if the drug dealers are dealing in cocaine, you know or should know that cocaine is illegal.

What is Considered the “Ability to Maintain Dominion and Control”?

The ability to maintain dominion and control means the ability to have access to the drug. For instance, you may not have physically handled the drug. But if the drug is in a cabinet in a home you own, then you have dominion and control.

If, however, you rent out the home to another group of people, you may lack dominion and control because the lease gives the renters dominion and control of the property you own during the term of the lease.

Exclusive Occupancy

If you are the sole occupant of the home or car where a controlled substance is found, your exclusive occupancy is often enough to evidence your ability to exercise control over the substance and your knowledge of its presence.

Non-Exclusive Occupancy

If you are not the sole occupant of the home or car, possession is slightly more difficult to prove. Where there is more than one occupant, there must be additional evidence, such as incriminating facts or circumstances, that shows both knowledge and control.

Attorney Damon Chetson is a criminal lawyer Raleigh who helps people charged with serious felonies, misdemeanors, and DWI/DUI charges in state and federal courts in North Carolina. He can be reached day or night at (919) 352-9411.

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Raleigh Criminal Lawyer: Obtaining Property by False Pretenses OPFP

On 02.10.10, By Damon Chetson

There are several different forms of theft in North Carolina. Larceny is what most people think of as theft: it is the taking of property that is not yours. Robbery is taking of the property from the actual person.

Embezzlement is taking money that’s been entrusted to you and using it for other purposes. For instance, if you take money that’s been given to you because you’re the accountant at a workplace, and you go gambling in Las Vegas, that’s embezzlement.

Obtaining Property by False Pretenses (OPFP) is a form of theft that involves trickery or fraud. For instance, let’s say you’re walking down the street and see a nice car that you want to buy, and see me standing by the car. Let’s say I don’t own the car. But let’s say that I tell you that I will sell you the car for $5,000. You give me the car, thinking that I am the owner and can legally sell it to you.

I’ve committed a crime of obtaining property by false pretense. I’ve tricked you into giving me $5,000 to sell you a car that is not mine to sell.

Here’s the statute:

§ 14‑100. Obtaining property by false pretenses.
(a) If any person shall knowingly and designedly by means of any kind of false pretense whatsoever, whether the false pretense is of a past or subsisting fact or of a future fulfillment or event, obtain or attempt to obtain from any person within this State any money, goods, property, services, chose in action, or other thing of value with intent to cheat or defraud any person of such money, goods, property, services, chose in action or other thing of value, such person shall be guilty of a felony: Provided, that if, on the trial of anyone indicted for such crime, it shall be proved that he obtained the property in such manner as to amount to larceny or embezzlement, the jury shall have submitted to them such other felony proved; and no person tried for such felony shall be liable to be afterwards prosecuted for larceny or embezzlement upon the same facts: Provided, further, that it shall be sufficient in any indictment for obtaining or attempting to obtain any such money, goods, property, services, chose in action, or other thing of value by false pretenses to allege that the party accused did the act with intent to defraud, without alleging an intent to defraud any particular person, and without alleging any ownership of the money, goods, property, services, chose in action or other thing of value; and upon the trial of any such indictment, it shall not be necessary to prove either an intent to defraud any particular person or that the person to whom the false pretense was made was the person defrauded, but it shall be sufficient to allege and prove that the party accused made the false pretense charged with an intent to defraud. If the value of the money, goods, property, services, chose in action, or other thing of value is one hundred thousand dollars ($100,000) or more, a violation of this section is a Class C felony. If the value of the money, goods, property, services, chose in action, or other thing of value is less than one hundred thousand dollars ($100,000), a violation of this section is a Class H felony.

Attorney Damon Chetson is a criminal lawyer Raleigh who helps people charged with serious felonies, misdemeanors, and DWI/DUI charges in state and federal courts in North Carolina. He can be reached day or night at (919) 352-9411.

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Extraordinary Mitigation: Deviating from NC Structured Sentencing

On 02.09.10, By Damon Chetson

In a previous post I commented on one way to avoid the harshest minimum sentencing provisions of North Carolina’s drug trafficking laws. A defendant in Raleigh or other parts of North Carolina can offer “substantial assistance.”

But what if someone is truly not deserving of an active sentence – meaning an immediate prison term – but has been convicted of a crime in which an active sentence is required under North Carolina’s structured sentencing?

Well, a Judge in these circumstances may find “extraordinary mitigation” – Dispositional Deviation for Extraordinary Mitigation under G.S. 15A-1340.13(g).

Extraordinary mitigation can’t be used for Class A (First Degree Murder) and Class B1 (First Degree Rape and First Degree Sex Offenses). It permits a judge to impose an “intermediate punishment” (meaning, a non-active sentence: supervised or intensive probation) where the sentencing chart would only otherwise permit the judge to impose an active sentence.

Extraordinary mitigation is pretty rare. It is meant for those special cases where a defendant has been convicted, but really do extraordinary things to deserve a lesser punishment. If you think you might qualify for extraordinary mitigation, feel free to call me for a free in-person or phone consultation.

Attorney Damon Chetson is a criminal lawyer Raleigh who helps people charged with serious felonies, misdemeanors, and DWI/DUI charges in state and federal courts in North Carolina. He can be reached day or night at (919) 352-9411.

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North Carolina Criminal Lawyer: Assault Inflicting Serious Bodily Injury

On 02.08.10, By Damon Chetson

A person who assaults another person and, in doing so, inflicts serious bodily injury will be guilty of a Class F felony. Note that the bodily injury can be mental, if it is severe. “Serious bodily injury” is different from and worse than “serious injury”. Serious bodily injury requires proof of some kind of severe injury, usually requiring hospitalization.

Here’s the statute:

§ 14-32.4. Assault inflicting serious bodily injury; strangulation; penalties.

(a) Unless the conduct is covered under some other provision of law providing greater punishment, any person who assaults another person and inflicts serious bodily injury is guilty of a Class F felony. “Serious bodily injury” is defined as bodily injury that creates a substantial risk of death, or that causes serious permanent disfigurement, coma, a permanent or protracted condition that causes extreme pain, or permanent or protracted loss or impairment of the function of any bodily member or organ, or that results in prolonged hospitalization.
(b) Unless the conduct is covered under some other provision of law providing greater punishment, any person who assaults another person and inflicts physical injury by strangulation is guilty of a Class H felony.

Attorney Damon Chetson is a criminal lawyer Raleigh who helps people charged with serious felonies, misdemeanors, and DWI/DUI charges in state and federal courts in North Carolina. He can be reached day or night at (919) 352-9411.

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What’s my Status while I wait for my DWI Raleigh Case to be Resolved?

On 02.07.10, By Damon Chetson

In the United States and in North Carolina, you are presumed innocent until proven guilty. You’ve got your license back. You can live your life in the meantime. Every so often you’ll have to go to court.

Many of my clients are anxious to get this unpleasant experience behind them. My advice: I’m on the case, and that they should just relax. Let’s wait and see what evidence the DA has, and let’s do our own investigation.

There is no reason for you to rush to a judgment, and throw yourself on the mercy of the court. The time may come for that, but not until we exhaust all of your legal options.

Sit tight and relax. Go about your life.

Attorney Damon Chetson is a criminal lawyer Raleigh who helps people charged with serious felonies, misdemeanors, and DWI/DUI charges in state and federal courts in North Carolina. He can be reached day or night at (919) 352-9411.

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How Can I Defend My DWI Raleigh Case?

On 02.07.10, By Damon Chetson

Let’s talk a little bit about your case and how your lawyer will defend you against the charges. Each case depends upon the facts and circumstances that led to the arrest and the charge.

You should talk to your DWI lawyer about how the facts in your case might affect the outcome. What follows is a general discussion of the typical DWI case.

The typical DWI stop is broken down into three phases:

Phase I: Vehicle In Motion
Phase II: Personal Contact
Phase III: Pre-Arrest Screening

In fact, this method of examining a DWI stop is used across the United States and in North Carolina by police officers, prosecutors, and defense attorneys in evaluating the stop.

Your DWI defense lawyer should carefully evaluate each stage of the DWI stop to make sure that the police officer who stopped you followed the law and the constitution when he stopped you

Attorney Damon Chetson is a criminal lawyer Raleigh who helps people charged with serious felonies, misdemeanors, and DWI/DUI charges in state and federal courts in North Carolina. He can be reached day or night at (919) 352-9411.

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How long will my DWI Raleigh case take?

On 02.06.10, By Damon Chetson

The answer is: it depends. You could walk into court on your first court date – which is usually a month after your arrest – and demand a trial. You will almost never get one in Wake County. That’s because there are so many cases in Wake County’s courts that, even if you wanted a trial on the first court date, there’d be no where to hold one.

Also, if you wanted to get the case over quickly, you could walk into court on the first setting and offer to plead guilty to the charge. The DA would surely take you up on the offer, since it would save him the time of proving his case. You could walk out of court with the whole thing resolved, except that you would be sentenced to some period of community service or jail, a suspension of your license, and so on.

Obviously you don’t want to do that. You want to make the DA prove his case, or at least get a better plea deal than simply agreeing to the charge.

As a result, in the real world your case will probably take at least 6 months, probably as much as a year. If you decide to appeal your case to Superior Court, your case could last 18 months to two years.

My clients often say to me, “I’d like to get this over quickly. Why do I have to wait so long?” The answer is that it’s actually in your best interests for the case to take a long time.

That’s because the longer it takes for your case to get resolved, the better the result will probably be for you. For example, memories fade. The police officer who arrested you will remember details related to your case today because he just arrested you a couple of weeks ago.

But that same police officer is going to have a worse memory of those events six months from now. In part, that’s because of the passage of time, and fading memories. But also, the same police officer will arrest several dozen more people on DWI charges in the meantime, and over time these arrests will blend together in his mind.

Since the prosecution’s best witness – sometimes only witness – is the officer, it’s best for you to wait as long as possible before bringing the case to trial.

Also, the longer you wait, the more generous the plea offer usually gets. If you ultimately decide that a plea agreement is the best way to resolve your case, you’re more likely to get a favorable plea offer when the DA is anxious to get your case off his calendar and behind him. In general, DAs prefer to get rid of older cases before they handle more recent cases. So you should try to wait until your case is “old” rather than “new.”

Waiting to resolve your case is a tactic you usually want to exploit. Talk to your attorney about how this tactic can be used to help your case.

Attorney Damon Chetson is a criminal lawyer Raleigh who helps people charged with serious felonies, misdemeanors, and DWI/DUI charges in state and federal courts in North Carolina. He can be reached day or night at (919) 352-9411.

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North Carolina drug trafficking – substantial assistance

On 02.05.10, By Damon Chetson

North Carolina’s drug laws are very harsh. In fact, North Carolina’s drug trafficking laws – dealing with the large scale sale and distribution of banned drugs or controlled substances – have mandatory minimum sentences.

That means that if you’re caught with enough drugs in your possession, you will likely be charged with trafficking or conspiracy to traffic in drugs. Depending on the quantities and the kind of drugs – LSD, heroin, cocaine, meth, and so forth – you could be serving anywhere from 5 to 7 years all the way up to 20 years in prison.

Those sentences are mandatory, meaning that the judge may not depart from the sentencing guidelines. That means that you will absolutely be serving the minimum sentence, regardless of how many family members show up to say you’re a great person.

HOWEVER, there is one important exception to the mandatory minimum rule. That exception is that if the judge finds you have provided “substantial assistance” to police following your arrest, the judge may depart from the sentencing guidelines, and give you a much reduced punishment.

What is substantial assistance? Substantial assistance is the eyes of the police, but basically it means you have helped in the telling them who, where, what, and how you got the drugs and how the trafficking worked. If you provide that kind of help to the police, you may be eligible for a reduced drug trafficing sentence.

What does this mean to you? First, you need a Raleigh drug lawyer or drug lawyer Raleigh who is going to work hard on every aspect of the case, from making sure that the police do have evidence to convict you, to making sure that the quantities of drugs are enough to meet the traffickings tatute.

Second, you need a drug lawyer Raleigh who is going to work hard to make sure that you get the best deal available. These are very serious charges.

Third, you need a drug lawyer who is going to protect your safety. Giving “substantial assistance” may open you up to other risks, and you need a North Carolina drug lawyer who is going to make sure that your assistance is going to be kept a secret, and that you will be protected from harm.

Ultimately, the decision on whether to give assistance is up to you. I will tell you your options. I will tell you the risks of giving assistance. I will explain what might happen in terms of your sentence if you don’t give assistance.

But I will always work for your interest. To protect you and your life from further harm as much as I can.

Attorney Damon Chetson is a criminal lawyer Raleigh who helps people charged with serious felonies, misdemeanors, and DWI/DUI charges in state and federal courts in North Carolina. He can be reached day or night at (919) 352-9411.

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Can I get my license back following a DWI Raleigh arrest?

On 02.05.10, By Damon Chetson

When you were arrested , your right to drive on North Carolina’s roads was temporarily suspended. North Carolina has a Civil Revocation law, which requires the driver to give up his license to a police officer at the time the driver is charged by the Magistrate with the crime of DWI.

The revocation period lasts at least 30 days. At the end of the 30 days, the driver – or the driver’s attorney – can go get the license from the courthouse after paying $100.

If you need your license back more quickly, in most cases you can request Limited Driving Privileges (LDP) from the court after just a 10-day revocation period.

Limited Driving Privileges require you to pay the court a $100 fee, submit a Substance Abuse Assessment form, proof of valid insurance, and a seven (7) year certified DMV driving history.

Your lawyer can help you get this material together, submit the forms on your behalf, and get your LDP from the court.

A Limited Driving Privilege is an Order granted by a judge. You must keep this paper with you when you’re driving. The LDP permits you to drive under certain conditions. Read the LDP Order carefully, or discuss it with your lawyer. The LDP Order is valid until 30 days after your arrest. At that time you can normally get your full, regular Driver’s License back from the court.

Once you get your Driver’s License back from the court thirty (30) days after your arrest, you have your full driving privileges back. Again, discuss this issue with your lawyer to ensure you are following the law.

Do not drink and drive during this period. A second DWI charge will mess up your legal situation with regard to your first DWI charge.

Attorney Damon Chetson is a criminal lawyer Raleigh who helps people charged with serious felonies, misdemeanors, and DWI/DUI charges in state and federal courts in North Carolina. He can be reached day or night at (919) 352-9411.

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The high cost of imprisoning drug crime offenders

On 02.04.10, By Damon Chetson

Missouri Chief Justice William Price recently called into question his state’s drug crime policy. Missouri, like North Carolina and all other states, focuses predominately on incarceration and prison to fight the drug war, rather than on treatment and job skills training.

As a result:

“The problem is that we are following a broken strategy of cramming inmates into prisons and not providing the type of drug treatment and job training that is necessary to break their cycle of crime,” Price said. “Any normal business would have abandoned this failed practice years ago, and it is costing us our shirts.”

North Carolina does have some drug diversion programs, which do focus on treatment, but those programs are fairly limited.

If you have been arrested for either a misdemeanor or felony drug crime, give me a call and I can discuss whether North Carolina’s drug diversion program would work in your case.

Attorney Damon Chetson is a criminal lawyer Raleigh who helps people charged with serious felonies, misdemeanors, and DWI/DUI charges in state and federal courts in North Carolina. He can be reached day or night at (919) 352-9411.

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Damon Chetson is an Apex, Wake County, Raleigh Criminal Lawyer who represents people living in Apex, NC charged with serious felonies, misdemeanors, DWI, DUI, traffic, and other offenses. If you're looking for a criminal lawyer in Apex, call Damon Chetson weekdays, weekends, evenings, or holidays, for tough, caring criminal representation.

DWI and Traffic Charges

The Chetson Firm Defends:

Drunk Driving/DUI/DWI
Limited Driving Privileges
Careless and Reckless
Speeding
License Revocation
Limited Driving Privileges

Felonies and Misdemeanors

The Chetson Firm Defends:

Sex Offenses
Drug Offenses
Drug Trafficking
Larceny (Theft, Shoplifting)
Assaults
Robbery and Theft
Burglary/Breaking & Entering
Domestic Violence