Being accused of any crime can be very scary. And because of new legislation, structured sentencing, and mandatory active jail time for certain offenses, the possibility of a criminal conviction can literally have life-changing ramifications.
As there are countless scenarios regarding the criminal process, there are no absolute rules as to how one should conduct him or her self after being charged. As a broad directive, though, Bush & Powers typically advises that one NOT give any statements to law enforcement or submit to a polygraph test without counsel present.
In North Carolina, most crimes are classified in one of two ways: Misdemeanors or Felonies. Misdemeanors are typically handled from beginning to end in District Court, but for matters that are appealed. Felonies are initially addressed in District Court, but are often ultimately disposed of in Superior Court. Both courts deal with offenses involving drugs, violence, property, driving, and sex; whether the matter is treated as a Misdemeanor or a Felony is determined by the Criminal Code.
Many types of crimes incorporate various offenses into one or more charges. In this, it is often difficult to determine what type of criminal process the State will pursue, and what the best course of defense may be. Possible defenses and remedies vary from one area of offense to another, and in many cases, there is a great deal of overlap in theories.
Take for example someone accused of Driving While Impaired after an accident with another vehicle. Assume that it is alleged that the Defendant driver was under the influence of cocaine at the time of the incident. This leaves the State with many choices as to the process of the accused, and leaves the Defendant with decisions to make regarding his or her defense. Does the State treat this as a standard DWI case? Or does it prosecute the accused additionally for an attached drug charge? Further, is there an issue of intent here, whereby the possibility of Assault and Property accusations may become an issue? Admittedly, the countless scenarios seen in Criminal Courts make for no absolutes in any situation. But being familiar with the broad areas of criminal offenses can be helpful in determining what the State must prove, what possible defenses exist to refute the allegations, and what constructive remedies may be available.
Three things are taken into consideration when determining how a drug-related charge will be treated: type, amount, and intended use. As little as one factor in each of these considerations can result in any charge being treated as a Felony, and also can mandate substantial active jail time in the event of a conviction. Conversely, these same things are taken into consideration when determining whether an accused will be able to consider a constructive or treatment-based resolution to his or her matter. Regardless of the classification of a drug offense, issues concerning Search and Seizure, Confidential Informants, and Constructive Possession are often present and should be considered extensively in preparing one’s defense.
Assaults, Threats, and other Crimes of the Person
Offenses of the person can often be very complicated, as State officials are typically only involved in an investigatory capacity. The interactions between two or more people are usually witnessed by few, and in this, the credibility of all relevant parties is extremely important in the outcome of a criminal process. Various factors are considered in determining how an Assault-type charge will be treated by the State, including the manner of the alleged act, the extent of the injuries, and the intent of the accused. Common issues going to the defense of a person charged are Self-Defense, Defense of Another, and the Credibility of the Accuser.
Similar to Persons offenses, Property crimes are very much grounded in the relationships between individuals. Of course, many situations in this area involve people who have previously had little or no interaction, as in a charge of Shoplifting. But there are many other circumstances whereby the parties have had personal and working relationships, and this makes it all the more important to consider the rights and duties of those involved to determine how best to defend against an accusation. Most Property offenses require an element of Criminal Intent for one be convicted, so it follows that the state of mind of the accused should be considered in preparing a defense. Identification of the Accused as the offender and Consent of the Alleged Victim are also critical considerations in disputing a Property-based accusation.
Frequently Asked Questions
1. The police never read me my rights. Is this grounds for dismissal? Typically, no. Miranda only comes into play when a custodial interrogation occurs. And even if a person is in custody and is questioned, the most common remedy for a Miranda violation is the suppression of any statements made at that time.
2. My husband/wife had me arrested for a Domestic Violence offense, but he/she wants to “drop the charges.” Can the State prosecute me? Yes. Being that this is a State-charge, only the State can choose not to proceed against a Defendant. The Assistant District Attorney makes the decision whether to prosecute.
3. My husband/wife has a Domestic Violence Protective Order (DVPO) against me, but he/she wants contact with me now. In fact, he/she calls me all the time and wants to get together. Can I be arrested if I meet him/her? YES. A person under a DVPO must comply with the Court-ordered terms therein; it is no longer up to the Protected party as to whether he or she wants contact.
4. If I have a clean record, am I automatically eligible for Deferred Prosecution? No. Certain offenses are precluded from Deferred Prosecution consideration. Further, victim’s consent, a required statement with an admission of guilt, and various other criteria must be met before one is eligible.
5. Can I get some old items on my record expunged? Whether one is eligible for an expunction of an old charge depends on, among other things, what the final disposition was, how old the accused party was at the time of the arrest, whether the person has had a prior expunction, what other items are on the person’s criminal record, and whether the matter occurred in the same series of events or transactions as other matters.