Blog: Information about North Carolina Criminal & DWI Law

Prolongation of a Stop – Search and Seizure Law

On 10.10.11, By Damon Chetson

One of the most important – and complex – areas of criminal law is Search & Seizure law.

The Fourth Amendment to the United States constitution protects citizens against warrantless search and seizures of their persons and property. Over time, various warrantless exceptions have emerged – a Terry Stop, for instance, is a warrantless search and seizure of an individual for officer’s safety.

However, the principle still applies and individuals should be secure in their person and property unless a government official has secured a warrant or has probable cause to suspect a crime is being committed.

One complicated area involves vehicle stops. Because vehicles are moving objects, police are constantly trying to push the bounds of a warrantless search of a vehicle because they know that if they don’t search, the evidence may drive off with the vehicle.

Picture the following scenario. An individual is stopped for a traffic violation – maybe speeding. During the course of the traffic stop, the police officer suspects that there may be drug trafficking. The police officer is free to inquire about whether the individual has drugs. However, the police officer may not prolong the stop beyond what is necessary as part of the traffic stop.

In U.S. v. Digiovanni a man was stopped on I-95 while traveling northbound in Maryland. The officer gave the man a warning with respect to the purpose of the stop which was that he was allegedly following too closely. But, before he let the man go, the officer then further detained him with additional questions (and a search) of the vehicle for drugs.

The Fourth Circuit Court of Appeals held that this prolongation of the stop was unconstitutional since the original purpose of the stop had been resolved. The man should’ve been free to go.

Raleigh criminal lawyer Damon Chetson helps individuals charged with crimes – misdemeanors, felonies, and DWI and traffic charges – in Raleigh, Wake County, Apex and other communities in Wake County and the Research Triangle of North Carolina. Durham DWI lawyer Damon Chetson also represents people throughout the Research Triangle. We are available day or night, weekdays or weekends. Call (919) 352-9411 day or night.

How Bail is Set in North Carolina

On 09.25.11, By Damon Chetson

Upon arrest bail will be set by a magistrate or judge in most cases.

Bond and bail guidelines are governed by Article 26 of Chapter 15A of the North Carolina General Statutes, and by local rules as established by the Chief Resident Superior Court Judge and Chief District Court Judge of each judicial district.

A defendant charged with a noncapital (i.e., not charged with First Degree Murder) must have conditions of pretrial release determined in accordance with 15A-534.

15A-534 establishes that a judge or magistrate must allow the defendant released on a written promise to appear (own recognizance), on an unsecured bond, or into the custody of a designated person, unless the judge or magistrate finds that doing so will not reasonably assure the defendant appears for trail, will pose a danger of injury to any person, or is likely to result in destruction of evidence or intimidation of witnesses.

In other words, the default position according to the statute is that the person be released from custody.

However, too often, and especially for felonies, magistrates and judges jump straight to a secured bond, which imposes a requirement that the defendant post some amount of money to the court before he will be released.

For wealthy defendants, this is merely an incovenience. But for middle class or poor defendants, coming up with a large amount of money on short notice can be a real problem, leading to days, weeks, or even months or years in jail priot to trial.

Typically, bail is set within the first 48 hours of arrest. If someone is arrested on a non-capital and non-domestic violence-related charge, then in most cases they will have a bond set immediately by a magistrate.

A magistrate is a judicial official, but not a judge. If a magistrate sets a bond that seems high, then the defendant will appear before a District Court judge within 48 hours where that judge will review the bond.

The judge may modify the bond in virtually any way – increase it, decrease it, or establish additional requirements.

If the person can make bond at that point, then the person can do so in one of two ways. Either the person can post the entire bond amount either in cash or in property (using a Deed of Trust) or the person can hire a bondsman, who is a licensed private agent of a bonding company who will take a fee – usually 10 percent, but no more than 15 percent according to statute – in order to stand in surety for the Defendant.

Hiring a lawyer before bonding can in many cases save money, since an attorney may be able to request a lower bond, which means less money posted or less money spent on a bondsman.

Tagged with: raleigh bail

Prosecutorial Control of the Calendar – History

On 09.21.11, By Damon Chetson

North Carolina’s prosecutors – District Attorneys – control the criminal calendar, whereas in most other states, the calendar is controlled by an independent judicially authorized administrator.

While formally each judicial district is supposed to have a docketing plan pursuant to N.C.G.S. 7A-49.4, the docketing plans aren’t always binding.

Through their control of the calendar, prosecutors can effectively decide when and in front of which judges matters are heard. Since judges are not interchangeable, the choice of judge can greatly affect the outcome of a matter.

Through their management of the calendar, prosecutors can decide which judges hear which cases. One would think this practice would be unconstitutional.

However, since prosecutors in nearly all other states don’t have such power, very little case law has been created about this issue because most lawyers in the country don’t practice in such a regime.

While prosecutorial control of the calendar is rare today – confined to a few states – it used to be more common. Eighty years ago it was the case that prosecutors in most states controlled the calendar.

As Andrew Siegel notes in his article on South Carolina’s calendaring system, many states featured prosecutorial control of the calendar in the early 20th century. As the criminal justice system evolved in the 19th century, judges would ride circuit. They would literally ride from judicial district to judicial district. In a given week, for instance, they might be in Raleigh. Or Wilson. Or Pittsboro.

Not only would judges ride circuit, but defense lawyers would ride circuit behind the judges. Consequently, the only people who permanently worked and resided in a single location were prosecutors (and sheriff’s) who would look after the cases and defendants located in a particular location.

Judges therefore relied upon prosecutors to maintain the list of cases that needed to be resolved in a given location so that when judges rode into town, the calendar was easily available.

At the same time, in the 19th century prosecutors were regarded as neutral. Over time, prosecutors, however, became associated with zealous advocacy of the state’s position, as opposed to neutral officials.

Siegel, in his article, notes that even as the criminal justice system took on a more modern shape in the early 20th century, prosecutors clung to their special powers to set the calendar and call the calendar in the order of their choosing.

While nearly all states have abandoned this practice – recognizing the inherent unfairness – North Carolina continues to feature prosecutorial control of the calendar.

Raleigh DWI lawyer Damon Chetson defends people charged with felonies, misdemeanors, traffic and DWI charges in Raleigh, Wake County, Apex, Smithfield, and Wake County, NC. Durham Criminal Lawyer Damon Chetson also represents people charged in Durham County, Harnett County, and Chatham County. Our lawyers are available day or night, weekdays or weekends. We can be reached for a free in-person or phone consultation (919) 352-9411.

Don’t Eat Crack Cocaine

On 09.21.11, By Damon Chetson

In State v. Ward, the North Carolina Supreme Court held that North Carolina’s prosecutors cannot rely upon a visual examination of alleged drugs to show to a finder of fact – a jury, for instance – that the drugs are in fact contraband. In other words, visual inspection of drugs is an insufficiently reliable method that the Supreme Court has excluded it as a method of proof.

There are certain exceptions to this rule. For instance, marijuana is sufficiently unique in smell and look that North Carolina courts have routinely held that an officer may testify that what he observed was pot based on his experience and training.

Now the North Carolina Court of Appeals has established another exception. In State v. James (September 20, 2011), the Court of Appeals heard a case where a police arrested a person suspected of Felony Possession With Intent to Sell and/or Deliver Cocaine (PWISD) (Crack).

The police conducted a field test – Narcotics Field Test Kit (NIK Test) – of the substance which preliminary identified the sustance as cocaine base (crack).

In addition, the police officer visually identified the substance as crack cocaine.

However, before the state could test the material in an actual laboratory, the Defendant ate the crack cocaine.

The Court of Appeals held that, having eaten the crack cocaine, the Defendant forfeited his right to challenge the admission of the police officers’ testimony based on the Defendant’s own wrongdoing.

The lesson here: Don’t Eat Crack.

North Carolina’s Judicial Branch

On 09.20.11, By Damon Chetson

North Carolina’s criminal justice system has three features – some would say, flaws – that make the practice of criminal defense law in this state particularly challenging. These features mean that people charged with crimes should seek out smart, aggressive lawyers who understand the structural problems with the system.

Let’s talk about one of them:

North Carolina features a weak, elected judiciary.

This is not meant to describe judges, who themselves are, for the most part, smart and conscientious. It’s meant to describe the overall power of the judiciary, which, since the founding of the state, was designed to be the weakest part of the three branches.

As anyone who has taken high school civics knows, governments – whether at the state or federal level – have three branches. North Carolina, too, has three branches. The executive branch, with the Governor at the helm. District Attorneys are part of the executive branch – although in North Carolina they serve a peculiar function.

The legislative branch – the North Carolina General Assembly – is the second branch. The judicial branch – with the North Carolina Supreme Court at the top and District Court at the lowest level – is the third branch.

North Carolina’s founding fathers created a state in which the General Assembly was the most powerful of the three branches. The founding fathers were naturally distrustful of a strong executive – e.g., King – and a strong, unelected judiciary. Consequently, they created a fairly weak judiciary and a weak executive. Reforms over the years have made the executive branch much stronger that it was at the State’s founding, but it is still a comparatively weak institution.

Almost as important is the fact that North Carolina elects its judges. In my view, this is a terrible way to choose judges. First, the election of judges means that judges must, naturally, think of the various political interests at stake when the rule on cases.

For instance, Mothers Against Drunk Driving (MADD) is a particularly powerful interest. Despite whether you think drunk driving is a good or bad thing – I think it’s, of course, bad – the rule of law and burdens of proof should matter much more than whether we catch every single drunk driver on the streets.

And yet, one could imagine judges being concerned about being re-elected if they were to run afoul of a special interest such as MADD.

Finally, the election of judges is almost never a good idea because, quite honestly, the voting public rarely has any idea either what makes for a good judge or whether the people they’re voting for as judges are truly qualified to fill that position.

Wake County lawyer Damon Chetson helps people accused of serious felonies, misdemeanors, drug charges, DWI and traffic offenses in Raleigh, Apex, Wilmington, and Wake County, NC. Harnett County and Durham County lawyer Damon Chetson also represents people charged with felonies and criminal charges in Lillington, Dunn, and Durham, North Carolina. Our lawyers are available day or night, weekdays or weekends. Call (919) 352-9411 for a free in-person or phone consultation.

Miranda v. Arizona – The History

On 09.20.11, By Damon Chetson

Miranda v. Arizona concerned itself with the conviction of Ernest Arturo Miranda, petitioner and defendant, who had been convicted of two crimes – rape and kidnapping – sentences on each count of 20 to 30 years to run concurrently. In a separate case, the defendant had been convicted of the crime of robbery, committed as a separate act.

The issue before the United States Supreme Court was the admission into evidence of the defendant’s statements, over the objection of trial counsel.

In June of 1963, the trial court allowed the confession into evidence. In April 1965, the Arizona Supreme Court affirmed the conviction. The Supreme Court granted review. The defendant was a 22 year old hispanic who had been arrested in March 13, 1963, taken to a police station by Officers Young and Cooley, placed in a line-up, where he was identified by the victim in the rape case. He was then taken into an interview booth – Interrogation Room #2 – at approximately 11:30 AM that morning. By 1:30 pm the police had obtained a confession.

He denied his guilty at the commencement of the interrogation. By 1:30 he had confessed. At no point during his interrogation nor prior to his oral confession was Mr. Miranda advised of his right to counsel or his right to remain silent. At the conclusion of his interview, he was then asked to sign a confession. He agreed. He was handed a type-written form which said “I, Ernest A. Miranda do hereby swear that I make this statement voluntarily and of my own free will, with no threats, coercion, or promises of immunity and with full knowledge of my legal rights understanding any statement I make may be used against me.” This statement was also read to him by the officers. Mr. Miranda confessed in his own handwriting.

The issue was whether the confession had been voluntarily given, in light of the officers’ failure to give Miranda appropriate warnings. The Supreme Court held in a 5-4 decision that before the police conduct an in-custody interrogation, they must advise the defendant of his rights – “Miranda Warnings” – absent an exception. One exception is an exigent circumstances exception where the questioning is required to avert some immediate threat or harm to other people.

The Miranda case was decided in the context of a rich history of police abuse where purportedly voluntary confessions had been beaten or coerced out of defendants.

Miranda closely followed Escobedo v. Illinois, a 1964 Supreme Court case involved Danny Escobedo, a Chicago man accused of killing his brother-in-law. On the evening of January 19, 1960, the defendant’s brother-in-law was shot dead in a garage behind his home. This happened about midnight. The defendant, a 22-year-old young man, was arrested in early morning hours. He was taken to the police station for approximately 14 or 15 hours where he was questioned until his attorney – an attorney he had retained for a private lawsuit some 6 months earlier – showed up at the station with a Writ of Habeas Corpus and got Escobedo released.

On January 30, 1960, police again arrested Escobedo and urged him to confess. This time, he was taken by police to police headquarters as 12th and State. During the ride, police officers claimed they had evidence that linked Escobedo to the killing. At about 9:30 (an hour and a half later), Escobedo (and his girlfriend who had also been arrested) arrived at the police station.

Escobedo requested to see his attorney.

His attorney – who had probably been informed by friends or family members about Escobedo’s arrest – also arrived shortly after at the police station. He also requested to see his client, Escobedo. Police refused him access to his client, and refused Escobedo permission to consult with his attorney.

The attorney was not content with this refusal, and so he went to just outside the room where Escobedo was being questioned, where Escobedo overheard his attorney outside the room requesting to see him. Escobedo again asked to talk to his attorney, and was again denied permission.

The Supreme Court held in a 5-4 decision that the failure of the police to afford Escobedo an attorney therefore made his confession inadmissible in court.

Taking a DWI to Jury Trial

On 09.05.11, By Damon Chetson

Sometimes I’m approached by folks who want to fight their DWI charge tooth and nail. They’re convinced they were driving impaired, and they are dead certain that a jury of their peers will find them “Not Guilty.”

Whether a client – also known as the Defendant or the Accused – wants to go to a jury trial is always a question for them to make. It’s their life.

Where the case is right to take to a jury, I am happy to fight that fight. Even where a case is difficult, time-consuming, or tough to litigate, I am happy to argue a case to a jury. After all, I’m a trial lawyer.

But here’s what someone should know about how a DWI is handled in North Carolina.

1. Before you reach a jury, you will first need to go through a bench trial. Depending on various factors, it may take anywhere from 6 to 9 months to have you trial heard in District Court.

2. If you win after a trial on the merits in District Court, your case is over. The State of North Carolina may not appeal a Not Guilty verdict by a judge in District Court. (The State may appeal lost motions to suppress where the individual was not arraigned.)

3. If you lose after a trial on the merits in District Court – that is, if you are found guilty – you at your option may appeal the verdict.

4. You or your attorney may give the Notice of Appeal in open court. This is the simplest way of making an appeal. In most cases, a judge will not impose an appeal bond. If no appeal bond is imposed, you may walk out of court with your license in hand (assuming you were otherwise able to drive to court) and proceed on with your life until your case reaches trial in Superior Court.

5. If you fail to give Notice of Appeal in District Court, you must give Notice of Appeal within 10 days of your District Court judgment if you wish to appeal. Notice should be given in writing to the Clerk of Court. In Wake County, the Clerk of Court for criminal court can be found in room 102 of the courthouse.

6. Once you give Notice of Appeal, a new court date – this time in Superior Court – will be set and you will need to appear in Superior Court to be given a trial date. In Wake County so many cases are appealed that there are literally hundreds of people who line-up every other Monday in courtroom 3D.

It’s important to keep in mind that just because you lost your case in District Court does not mean that you will necessarily lose your case in Superior Court. This is because a jury may be more skeptical of the State’s case. Or this is because the State’s case may weaken over time.

It’s important for you to discuss all your options with your lawyer both before you hire the lawyer, but also in the event you should lose in District Court.

Apex criminal lawyer Damon Chetson defends people charged with felonies, misdemeanors, traffic and DWI charges in Raleigh, Wake County, Apex, and Wilmington, NC. Durham criminal lawyer Damon Chetson also defends people charged with crimes in Durham, Chatham, and Harnett Counties. We are available day or night, weekdays or weekends. Call for a free in-person or phone consultation (919) 352-9411.

Recent Changes to NC DWI Law

On 08.09.11, By Damon Chetson

Recent (2011) changes to NC DWI law include:

NCGA created (“Laura’s Law”) a new DWI sentencing level – “Aggravated Level One” – which applies to all DWIs (offenses committed as of December 2011) – where there are three or more grossly aggravating factors (although see below for changes to how Minor in Car are handled). Minimum of 120 days in custody (special condition of probation). 12 months to 36 months in prison if sentence activated, with effective sentence being 4 months shy of the maximum imposed term, with those 4 months being on Post-Supervision Release plus abstain from alcohol as measured by an alcohol monitoring device. Up to $10,000 in fines.
Grossly Aggravating Factor change – Prior to December 1, 2011, it’s a grossly aggravating factor to DWI with a minor under the age of 16. As of December 1, 2011, it’s a grossly aggravating factor REQUIRING IMPOSITION OF LEVEL 1 if the person drives with a minor under the age of 18. (Does this mean that if the person would otherwise be an Aggravated Level One, they would be given the lesser punishment of Level 1 if one of the aggravators was a Minor Child? Seems to read that way. Also, seems to suggest that no matter how many minor children are in the car, it would be a Level 1. Finally, this will particularly affect teenage drivers who may have friends in the car.)
New Pretrial Condition – A magistrate may impose the condition that a DWI defendant abstain from alcohol as monitored by a continuous monitoring device if the DWI defendant had a prior DWI conviction with 7 years of the new offense.
A judge may impose the condition that the person abstain from alcohol consumption as monitored by a continuous monitoring device for the entire length of probation (used to be time-limited).
Costs of the continuous monitoring device must be borne by the offender.

If you’re in need of a tough, experienced Raleigh, Wake County or Apex criminal lawyer, give Damon Chetson a call (919) 352-9411 anytime. Damon Chetson also represents individuals charged throughout the Research Triangle – Wake, Durham, Johnston, Lee, Harnett, Orange, and Chatham counties. . Call them anytime – (919) 352-9411 -weekdays, weekends, evenings or holidays.

What is a Plea Transcript

On 08.07.11, By Damon Chetson

A plea transcript is a three or four page document used when the State and the defendant have agreed upon a plea. The transcript includes a list of approximately 30 questions which the Defendant must answer to the satisfaction of the judge.

These questions include questions about the mental acuity of the defendant, his ability to hear and understand the judge, his voluntariness in terms of taking the plea, and a description of the plea agreement.

In all cases, the Defendant will have gone over and answered these questions in private with his lawyer who will explain all aspects of the plea transcript with the Defendant. This is to ensure that Defendant understands what is happening to him, since the Defendant is likely to be very nervous in front of a judge.

In North Carolina, a plea transcript can include two kinds of pleas: a standard plea or an Alford plea. The transcript also provides for a nolo contendre plea, but this type of plea is virtually never used.

In a standard plea, the person admits to his personal guilt in the crime.

In an Alford plea, the person agrees to accept the plea, but denies his personal guilt. Essentially, a person taking an Alford plea is saying that while he denies he committed the crime, he recognizes that a jury might find him guilty, and so he’d prefer to take the plea agreement than risk a longer jail sentence or harsher punishment from a guilty plea.

A defendant does not have a right to an Alford plea. The District Attorney must accept the Alford plea in order for it to be proposed to the judge.

A plea transcript may also include very specific sentencing agreements, which essentially stipulate the sentence that the Defendant accept. This leaves very little up to the judge, who merely must decide whether he or she will accept the plea agreement between the Defendant and the State.

In other circumstances, the plea transcript is vague with respect to the two parties, and the Defendant is therefore sentenced at the Judge’s discretion. The judge will listen to arguments from the State and from the Defense about how the Defendant should be sentenced, and make a determination – guided by those arguments and limited by statute – about the Defendant’s ultimate sentence.

In North Carolina, sentence is almost always imposed immediately upon the conclusion of the plea transcript. In the federal system, sentence is imposed usually two or three months after the plea is entered, so that United States Probation can prepare a Pre-Sentence Investigative Report for the judge to consider when sentencing the Defendant.

Tagged with: criminal lawyer raleigh

What is an Arraignment?

On 08.07.11, By Damon Chetson

An arraignment is a formal reading of a criminal complaint, almost always in the presence of the defendant.

In North Carolina, arraignments vary by crime type. In the case of misdemeanors, a person is usually arraigned just once – immediately prior to either taking a plea or immediately prior to trial.

In the case of felonies, a person is usually arraigned at least twice. In North Carolina, the person will be arraigned within 48 hours of arrest. At this time, no plea is entered. The person will be arraigned, informed of his or her charges, informed of his or her right to a lawyer, and, if the person is still in custody, bond will be set by a judge.

After that arraignment, the person is free to leave court if the person has bonded out of jail. Or the person is returned to jail to await the next hearing.

If the person enters into a plea agreement or decides to go to trial, the person will be arraigned again, this time before the plea of guilty or not guilty is entered. Then either a plea colloquy will begin (in which the person answers questions before a judge who decides whether or not to accept to plea and how to sentence the person) or the trial begins.

Following indictment in felonies, the person typically can enter a Waiver of Arraignment (also called a stipulation or a “stip”) which is a way of avoiding the formal arraignment.

Since the arraignment lacks meaningful value in most cases, it’s usually waived to avoid unnecessary visits to the courthouse.

Damon Chetson is a North Carolina Lawyer lawyer. He practices in Raleigh, Apex, and Wake County, North Carolina. He also defends individuals charged with crimes throughout the Research Triangle. He works hard to defend his clients’ rights. He represents people charged in all parts of the Research Triangle. If you’re looking for a lawyer in Raleigh or Wake County, you can call the us for a free in-person or phone consultation at (919) 352-9411 weekdays, evenings, weekends, and Holidays.

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Raleigh criminal lawyer Damon Chetson helps people in Raleigh, Wake County, and Apex, NC and Wake County, North Carolina. Call (919) 352-9411 anytime.

Damon Chetson, a Raleigh criminal lawyer, offers determined, and professional legal representation for those charged with serious felonies, misdemeanors, and driving or DWI offenses in Raleigh, Apex, Wake County, NC (Wake County). For more information or a free in-person or phone consultation with a criminal lawyer, email info@chetson.com or call (919) 352-9411 weekdays, evenings, weekends or holidays.

About Damon Chetson

Damon Chetson is a Raleigh criminal lawyer. He represents people in Raleigh, Wake County, Apex and other counties in Wake County who have been charged with serious felonies, misdemeanors, or drunk driving offenses.

He is also a Wake County criminal lawyer, representing individuals who live in Wake County, NC and are charged with felonies. As a former resident of Wake County, and now a resident of Apex, he knows the particular issues that are important to residents of Wake County, a bedroom community of Raleigh. He knows how to protect reputations, how to make sure that his clients are treated properly by police, and how to work with Wake County District Attorneys.

In addition, Mr. Chetson is an Apex criminal lawyer. A former resident of Wake County, NC, he now lives in Apex, NC and is familiar with the people who live in this bedroom community. He cares about the people who live in Apex and Wake County, NC and he works to make sure that not only them, but their families are prepared from the criminal process.

He works on serious felonies, misdemeanors, DUI/DWI and traffic cases, and is willing to travel to Wake County or Apex if clients cannot come to his downtown Raleigh office.

Advice from a Raleigh Criminal Lawyer

Warrantless Dog Sniffs in Drug Cases January 15, 2012
Police conducted a warrantless dog sniff test by a dog trained in drug detection at Joelis Jardines home five years ago. The police had received an unverified tip that Jardines’ home was being used to grow marijuana. Under well established constitutional law, the unverified tip did not create probable cause. In December, 2006, police went... […]
Damon Chetson
Victory for Criminal Defendants January 15, 2012
Discovery is the process by which each side in a legal dispute is entitled to receive information from the other side. Usually in a criminal matter, discovery goes one way – from the prosecution to the defense. That’s because in a criminal matter, the prosecution – through the police – such as the Raleigh Police... […]
Damon Chetson
Changes to North Carolina DWI Checkpoint Law January 13, 2012
Police are permitted under U.S. Constitutional law to establish checkpoints provided they have a specific programmatic purpose, and are not generally used for general crime control. In other words, the Supreme Court has refused to permit police agencies to establish checkpoints for general policing, since this smacks of a totalitarian approach where everyone […]
Damon Chetson
Continuous Alcohol Monitoring (CAM) and Raleigh DWI cases January 12, 2012
Recent changes to North Carolina’s DWI laws expand the use of Continuous Alcohol Monitoring (CAM). For instance, if a person is sentenced to an Aggravated Level 1 DWI, the person would be required to have at least a four month period of Continuous Alcohol Monitoring (120 days) but it can be imposed for the entire... […]
Damon Chetson
Electronic House Arrest vs. Electronic Monitoring January 11, 2012
This post deals with the post-conviction application of EHA or Electronic Monitoring in a Raleigh criminal case. If a person is sentenced within an Intermediate (I) sanction block, that person must face at least 1 of several intermediate sanctions, including: Split Sentence – up to a 1/4 of the sentence in custody, with the balance... […]
Damon Chetson
North Carolina Structured Sentencing is No Longer Structured January 10, 2012
Up until the mid-1990s, North Carolina had a sentencing system called Fair Sentencing. The major criticisms of Fair Sentencing were that: There was no truth in sentencing. The actual sentence served was usually much lower than the stated sentence at sentencing. There was disparity in how people were treated from place to place, and defendant... […]
Damon Chetson
Scope of Entitlement for Indigent Services January 9, 2012
Any person, including non-citizens, is entitled to representation and, if that person cannot afford an attorney, both the United States Constitution and North Carolina law guarantee that person the right to an attorney. The attorney – whether he or she is a public defender who works in the Wake County Public Defender’s Office or a... […]
Damon Chetson
Probation Violations and Revocations in North Carolina January 7, 2012
Recent changes to North Carolina’s post-conviction laws change the authority of the judge to handle probationers who violate the terms of their probation. For all probation violations on or after December 1, 2011, the judge may only revoke for a new criminal offense or for absconding. The practice in many parts of the state is... […]
Damon Chetson
Post Supervision Release and New Maximum Sentences January 6, 2012
In light of recent changes to North Carolina’s post-supervision release and post-conviction laws, all offenses, except now have post supervision release. Everyone convicted of an offense committed on or after December 1, 2011 will be required to complete Post-Release Supervision. Class B1 to F have twelve months of post supervision release. Class F through I […]
Damon Chetson
Magistrates and Criminal Law in North Carolina January 6, 2012
A magistrate is not a judge, but is a judicial officer of the District Court. Each of the 100 counties in North Carolina has at least one magistrate. A magistrate has civil functions – including to marry, and to hear small claims suits – and has criminal functions, which I’ll discuss below. The general statutes... […]
Damon Chetson