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gilberrylaw · 6 months ago

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How to Challenge a Habitual Traffic Offender Designation: Legal Strategies and Options

Driving is a privilege that can be curtailed by numerous factors, particularly when one accumulates serious or repeated traffic offenses. In Indianapolis, becoming classified as a "Habitual Traffic Offender" or "Habitual Traffic Violator" can have profound implications on your freedom and ability to drive. Understanding the legal avenues to challenge such a designation is crucial for those affected. This comprehensive guide outlines the strategies and options available to fight against a habitual traffic offender designation in Indianapolis.

Understanding Habitual Traffic Offender Status

A "Habitual Traffic Offender" in Indianapolis is defined as a driver who, within a ten-year period, accumulates multiple serious traffic offenses. These can include DUIs, reckless driving, driving on a suspended license, and other major infractions. The consequences of this designation are severe — from extended driver’s license suspensions to possible incarceration for subsequent offenses.

Criteria for Habitual Traffic Offender Designation

The criteria for becoming labeled as a habitual offender are strictly outlined by the Habitual Traffic Law in Indianapolis. Typically, this designation comes after receiving:

Three major offenses that result in injury or death.

Ten moving violations, each of which results in points on the driver's license.

A combination of major offenses and moving violations leading to a predetermined number of points.

Understanding these criteria is the first step in mounting a legal challenge against a designation.

Legal Strategies to Challenge the Designation

Challenging a habitual traffic offender designation requires a solid legal strategy. Here are key approaches used by defense attorneys:

1. Review of the Individual Offenses

The first strategy involves a thorough review of all individual traffic offenses contributing to the habitual offender status. This may include challenging the legality of traffic stops, the accuracy of traffic citations, or the fairness of previous court proceedings.

2. Correcting Errors in Driving Records

Errors in the state’s driving records can occasionally lead to wrongful habitual offender designations. It's essential to obtain and review a full driving record to ensure all listed offenses are accurate. Any discrepancies found can be grounds for appealing the status.

3. Negotiating with the Prosecution

In some cases, negotiation with the prosecuting attorney can be a viable strategy. This might involve arguing for the reduction of the severity of some of the contributing offenses, or even dismissing some charges if procedural errors are found.

4. Legal Motions and Appeals

Filing legal motions to contest administrative errors or procedural missteps during the initial trials can also be an effective strategy. If initial appeals fail, further appeals to higher courts can be considered depending on the case’s specifics.

5. Seeking Alternative Sentencing or Programs

Some jurisdictions may offer programs or alternative sentencing options that can prevent a driver from being designated as habitual. These might include traffic school, community service, or other court-approved programs.

6. Use of Expert Testimony

In some scenarios, the use of expert testimony regarding the circumstances of the traffic offenses or the accuracy of traffic devices (like speedometers or breathalyzers) may help in contesting the offenses that led to the habitual designation.

Implementing the Challenge

Implementing these strategies requires a detailed plan and often the assistance of a knowledgeable attorney who specializes in traffic law in Indianapolis. From gathering evidence and hiring experts to negotiating with prosecutors and filing necessary paperwork, each step must be meticulously planned and executed.

Conclusion: Partner with Gil Berry Law

If you're facing a habitual traffic offender designation in Indianapolis, it’s crucial to act swiftly and effectively. Partnering with Gil Berry Law provides you with a team of experienced professionals who are well-versed in Habitual Traffic Law in Indianapolis. Our dedicated attorneys understand the complexities of traffic violations and the distress that a Habitual Traffic Offender designation can cause. We use a comprehensive approach to analyze your case, challenge inaccuracies, and advocate fervently on your behalf. At Gil Berry Law, we are committed to restoring your driving privileges and ensuring your rights are protected throughout the legal process. Let us help you navigate through this challenging time with professionalism and expertise.

#Habitual Traffic Offender Indianapolis #Traffic Law Defense #Legal Strategies for Traffic Violations #Indianapolis Traffic Attorney #Habitual Traffic Violator Defense

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drivefloridadrivingschool · 4 months ago

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Florida Driver Improvement Course: Everything You Need to Know

The Florida Driver Improvement Course is an essential program designed to enhance driving skills, reduce points on your driving record, and fulfill court or DMV requirements. Whether you're looking to avoid increased insurance premiums, reinstate your license, or simply become a safer driver, this course offers valuable benefits. This blog post will explore the various aspects of the Florida Driver Improvement Course, including its importance, types, benefits, and how to enroll.

Importance of Driver Improvement Courses

Driving in Florida comes with its own set of challenges, including heavy traffic, diverse road conditions, and a high incidence of distracted driving. The Florida Driver Improvement Course aims to address these issues by educating drivers on safe driving practices, defensive driving techniques, and state traffic laws. Completing the course can lead to fewer accidents, lower insurance rates, and a cleaner driving record.

Types of Florida Driver Improvement Courses

Florida offers several types of driver improvement courses tailored to meet different needs:

Basic Driver Improvement (BDI) Course:

Designed for drivers who have received a traffic ticket.

Helps to avoid points on the driving record.

May prevent insurance rates from increasing.

Can be taken voluntarily or as required by the court.

Advanced Driver Improvement (ADI) Course:

Required for drivers with a suspended or revoked license.

Necessary for habitual traffic offenders.

Helps to reinstate a driver's license.

Focuses on responsible driving behavior and traffic laws.

Traffic Collision Avoidance Course (TCAC):

Often required for drivers involved in a collision.

Emphasizes defensive driving techniques to prevent future accidents.

May be mandated by the court or voluntarily taken for safety improvement.

Mature Driver Discount Course:

Available for drivers aged 55 and older.

Provides a discount on auto insurance premiums upon completion.

Covers age-related driving issues and safety tips.

Benefits of Taking a Driver Improvement Course

Point Reduction:

Completing the BDI course can prevent points from being added to your driving record for a traffic violation.

This can help avoid the suspension of your driver’s license.

Insurance Benefits:

Many insurance companies offer discounts for completing a driver improvement course.

Preventing points on your record can also prevent insurance rate hikes.

License Reinstatement:

The ADI course is required for drivers seeking to reinstate their suspended or revoked license.

Successfully completing the course demonstrates a commitment to responsible driving.

Improved Driving Skills:

The course provides valuable information on defensive driving techniques, traffic laws, and safe driving practices.

This knowledge can help reduce the risk of future traffic violations and accidents.

Court Requirement Fulfillment:

For those mandated by the court to take a driver improvement course, completing it is necessary to comply with legal requirements.

Fulfilling this obligation promptly can prevent further legal complications.

How to Enroll in a Florida Driver Improvement Course

Enrolling in a Florida Driver Improvement Course is a straightforward process:

Choose the Right Course:

Determine which course you need based on your situation (e.g., BDI for traffic tickets, ADI for license reinstatement).

Verify if the course is required by the court or DMV, or if you are taking it voluntarily.

Select a Certified Provider:

Ensure the course provider is approved by the Florida Department of Highway Safety and Motor Vehicles (DHSMV).

Many providers offer both online and in-person options.

Visit the provider’s website or contact them directly to register.

Provide any necessary information, such as your driver’s license number and ticket details (if applicable).

Complete the Course:

Follow the course instructions, whether online or in-person.

Pass any required exams or quizzes to receive your certificate of completion.

Submit Your Certificate:

Submit the completion certificate to the appropriate authorities (e.g., court, DMV, insurance company) as proof of completing the course.

Tips for Choosing the Right Course Provider

DHSMV Approval:

Verify that the provider is certified by the Florida Department of Highway Safety and Motor Vehicles.

Course Format:

Choose between online and in-person formats based on your learning preference and schedule flexibility.

Cost:

Compare prices among different providers.

Ensure there are no hidden fees and that the total cost is clear upfront.

Customer Reviews:

Read reviews from past participants to gauge the provider’s reputation and course quality.

Support:

Ensure the provider offers customer support in case you encounter any issues during the course.

What to Expect During the Course

Course Content:

Topics typically include defensive driving techniques, Florida traffic laws, accident prevention, and safe driving practices.

Duration:

The length of the course varies depending on the type. BDI courses usually last 4 hours, while ADI courses can be up to 12 hours.

Interactive Elements:

Many online courses feature interactive elements such as videos, quizzes, and simulations to enhance learning.

Final Exam:

Most courses require passing a final exam to receive the certificate of completion.

Study the course material thoroughly to ensure you pass the exam.

Conclusion

The Florida Driver Improvement Course is a valuable tool for improving your driving skills, reducing points on your driving record, and meeting legal or insurance requirements. Whether you are mandated to take the course or choose to do so voluntarily, the benefits extend far beyond compliance. By enhancing your knowledge of safe driving practices and state traffic laws, you contribute to safer roads for everyone. Enroll in the appropriate course today and take a proactive step towards becoming a better, more responsible driver.

#driving ticket class #drug and alcohol classes near me #driving teachers near me #florida driver improvement course

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dunilefra · 3 years ago

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Admirable Articles of Burundi's Constitution

Article 6

The principle of the Republic of Burundi is government of the People, by the People, and for the People.

Article 8

Suffrage is universal, equal, protected, free and transparent. It may be direct or indirect according to conditions stipulated by the law.

The electorate, according to the terms determined by the electoral code, is composed of all Burundians aged 18 years enjoying their civil and political rights.

Article 13

All Burundian people are equal in merit and in dignity. All citizens enjoy the same rights and have the same protection of the law. No Burundian will be excluded from the social, political, or economic life due to their race, language, religion, sex, or ethnic origin.

Article 14

All Burundian people have the right to live in Burundi in peace and security. The people must live together in harmony, all in respecting human dignity and in tolerating their differences.

Article 16

The Burundi government must be composed so that all Burundians are represented in it and so that it represents all Burundians, so that each person has an equal chance of being part of it, so that all citizens have access to public services, and so that the decisions and actions of the Government receive the greatest possible support.

Article 22

All citizens are equal before the law, which assures them equal protection.

No one may be the target of discrimination based on, notably: origin, race, ethnicity, sex, color, language, social situation, religious, philosophical, or political belief, physical or mental handicap, HIV/AIDS status or having any other incurable illness.

Article 26

No one may be slaved or held in servitude. Slavery and the traffic of slaves is forbidden in all forms.

Article 46

No child may be detained unless as final recourse, in which case the detention of the child will be the shortest possible.

Every child has the right to be separated from prisoners older than 16 years and to be subjected to treatment and detention conditions adapted to their age.

Article 81

Political parties can form coalitions during elections, according to the terms and conditions set by electoral law.

Article 99

Candidates can be presented by political parties or coalitions of political parties or can present themselves as independents.

A candidate is considered independent if they have not aligned themselves with any political party within at least a year and if they affirm their independence in regards to habitual political divisions by proposing a personal societal project.

A member of a leading organ of a political party can not present himself as an independent candidate until after a period of two years after his expulsion or resignation from the party of origin.

Article 250

Neither the Corps of Defense and of Security, nor any of their members may, in the exercise of their duties:

Infringe upon the interests of a political party which, in the terms of the Constitution, is legal;

Display their political preferences;

Favor, in a partisan manner, the interests of a political party;

Be a member of a political party or of an association with political character;

Participate in activities or protests of political character.

The law concerning the organization and operations of the Defense and Security Corps punishes the violation of it.

Article 280

Agreements authorizing toxic waste storage and the storage of other materials detrimental to the environment are prohibited.

by Dunilefra, working for World Politics

#Burundi #Dunilefra #Politics #Political Reform #World Politics #World Order #Fundamental Rights #Human Rights #Economy #Religion #State Policy #Political Analysis #Constitution #Constitutional Law #Law

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marymosley · 4 years ago

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Meet Mary Pollard, the new Director of the Office of Indigent Defense Services

Yesterday, Mary Pollard began work as just the third Executive Director of the North Carolina Office of Indigent Defense Services (IDS), which began its work two decades ago in 2000. IDS is the statewide agency responsible for overseeing and enhancing legal representation for indigent defendants and others entitled to counsel under North Carolina law. Over the weekend, before she became deluged with her new responsibilities, Mary graciously agreed to do a quick interview with me. Read on to get to know a little more about her.

Tell us about your legal background.

I went to Wake Forest Law School, and after graduating in 1993 I went to work as an associate attorney at Womble, Carlyle, Sandridge & Rice in Winston-Salem and then Raleigh. I did civil litigation—business litigation and products liability. The cases ranged from simple breach of contract cases to patent infringement to complex products liability.

How did you get into indigent defense work?

In 1999, Tye Hunter, who was then the Appellate Defender in North Carolina called me. [Tye Hunter later became IDS’s first executive director, serving from 2000 to 2008.] He had heard that I was interested in working on a death penalty case. I’m still not sure where he heard that. I told him I was wholly unqualified, and he explained in his inimitable way how capital post-conviction litigation was JUST LIKE products liability litigation, with extensive discovery and expert witnesses. I had reservations given that my criminal law experience up to then had consisted of going to traffic court for the children of partners and clients. But, Tye convinced me, and the firm was supportive.

That’s how I got appointed to represent Alan Gell, who was on death row for first-degree murder. I represented him in post-conviction, which resulted in his conviction being overturned, and then worked on his retrial, which resulted in his acquittal of all charges. I liked doing civil litigation and my colleagues at Womble, but I just found this work more fulfilling.

What then?

I left Womble in 2002 and went to work as a staff attorney at the Center for Death Penalty Litigation, where I did capital post-conviction work until 2007. After that, I was self-employed until 2009 when I became the Executive Director of North Carolina Prisoners Legal Services. I was the PLS Director until I took this job.

Was it hard to leave PLS?

Definitely. We did a lot of good work. I’m proud of it. PLS does both criminal and civil work. We recruited and trained lawyers to do post-conviction work and got some amazing results for our clients, including exonerations of wrongfully convicted people. We litigated civil cases about conditions of confinement. We worked on cases to stop sexual abuse of women inmates and a class action under the Americans with Disabilities Act to make sure that inmates with disabilities could earn gain time on an equal footing with other inmates. We also did the important day-to-day work of correcting sentencing errors, including habitual felon sentences. While at PLS, I also had the honor of serving as the President of the North Carolina Advocates for Justice.

What made you consider becoming the IDS Director?

At PLS, we usually represent individuals one case at a time. The thought of being able to make systemic improvements appeals to me—to work on getting attorneys more resources, more funding, and essentially more time to work on their cases.

I look forward to the challenge, the immediate one being moving forward through the pandemic, which poses unique problems for the defense. When are we going to be able to try cases again? What are the alternatives? Will they be fair? The economic impact of the pandemic could also affect funding for indigent defense, which is already too low as it is.

The flip side is that we have an opportunity to make changes that could ease the workload and keep more people out of prisons and jails. So many cases in our criminal justice system are low-level misdemeanors, which can be handled in other ways. Rather than brand people with a conviction and impose collateral consequences, we can save money and reintegrate people better by exploring noncriminal options, such as civil infractions for violations of the law.

What else would you like people to know about you?

I’m pretty boring. I’ve been married 28 years as of last Saturday. My husband is in-house counsel at a large engineering firm. We live in Raleigh in the same house we’ve been in for 11 years. We have two nearly grown children, a son and daughter who are 24 and 21 years old. In my spare time I sit on the front porch and read or knit.

How should people reach you?

I had hoped to hop in the car and come see folks around the state. That isn’t going to happen for a while. So, we will try to set up some smaller virtual meetings. I want to learn about the issues and concerns that the defense community has. In the meantime, you can reach me at [email protected] or the IDS main number, 919.354.7200. I am excited to get started.

The post Meet Mary Pollard, the new Director of the Office of Indigent Defense Services appeared first on North Carolina Criminal Law.

Meet Mary Pollard, the new Director of the Office of Indigent Defense Services published first on https://immigrationlawyerto.tumblr.com/

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maxwellyjordan · 5 years ago

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Overview of the court’s criminal docket for OT 19 – sizeable and significant

The Supreme Court has already granted review in 50 cases for the term that opens on Monday, October 7. More will be granted when the court returns for its “long conference” (following the summer recess) on October 1. By my broad definition (which includes immigration and civil-related-to-criminal cases), 20 of the 50 cases already granted (40%) involve criminal-law or related issues. After consolidations, this represents 16 hours of argument – and 10 of those hours will occur in the first two months. From this end of the telescope, the cases look important, and a few will certainly have broad impact.

Opening day – two big cases

Monday, October 7, will open with two very significant criminal-case arguments, one before and one after lunch (with a patent case sandwiched in the middle).

First, the justices will consider whether a state may (as Kansas has) constitutionally eliminate any defense of insanity to criminal charges. This presents both due process and Eighth Amendment questions, and involves intricate mental gymnastics regarding the difference(s) between insanity and a permissible defense of lacking criminal mens rea. A Kansas statute has, since at least 2007, allowed a defense to criminal charges that a defendant “lacked the culpable mental state required,” but then also provides that “mental disease or defect is not otherwise a defense.” Under such jury instructions, James Kahler was convicted of the grisly murder of his ex-wife, two teenage daughters, and their great-grandmother, and sentenced to death. Kahler argues, with the support of an array of medical, philosophical, historical and other amici curiae, that criminally punishing the insane has always been viewed as “cruel and unusual” and that an insanity defense, that is, a lack of moral culpability, is constitutionally different from the absence of mens rea. By contrast, Kansas, and also the United States as amicus, argue that the Constitution does not deny states the ability to decide for themselves how mental states should be accommodated in criminal law.

After lunch, the court will address the likely far easier question whether the “unanimous verdict” requirement for criminal jury trials under the Sixth Amendment necessarily applies to all the states under the 14th Amendment’s incorporation doctrine. Only two states (Louisiana and Oregon) allow non-unanimous criminal conviction verdicts, and the court fractured in at least three different directions when it last considered this question in 1972. Almost 50 years later, and in light of the conservative justices’ more recent endorsement of incorporation in McDonald v. City of Chicago as well as the court’s decision last term in Timbs v. Indiana (fully incorporating the Eighth Amendment’s excessive fines clause against the states), an outcome here against Louisiana seems almost inevitable. (Justice Brett Kavanaugh’s opinion last term in Flowers v. Mississippi, detailing the history of race discrimination in criminal jury selection, is also relevant.) Few Supreme Court decisions are ever slam dunks, and two amicus briefs on behalf of 15 jurisdictions do raise important questions of retroactive versus prospective effects and other state variations in criminal jury-trial procedures. The implications of the court’s ruling in this case (Ramos v. Louisiana) will undoubtedly be significant. But increasingly, Justice Hugo Black’s theory of “total incorporation” seems, except for the Sixth Amendment’s grand jury clause, virtually complete.

The second week, and a focus on immigration

The second argument week of the term will see another two criminal cases. On October 16, in Mathena v. Malvo, the court will consider the life-without-parole (LWOP) sentence imposed on the juvenile “D.C. sniper,” Lee Malvo, who with an adult partner (since executed) shot and killed 10 people in the Washington, D.C., area in 2002. The constitutionality of LWOP sentences for juveniles under the Eighth Amendment has bedeviled the court twice previously: Such sentences have been declared unconstitutional when mandatory, but not when discretionary.. Tthis case will examine what exactly that means. The year-old retirement of Justice Anthony Kennedy, who authored the most recent decision on the issue, makes the outcome difficult to predict.

That same day, the court will consider Kansas v. Garcia, a criminal case involving immigration forms. The Kansas Supreme Court invalidated the conviction of three defendants for using other people’s social security numbers, because a federal statute prohibits the use of information on a federal employment-authorization Form I-9 for any “purposes other than” authorization. But the false SSNs were also found on other documents that the defendants submitted. After the court asked for the views of the federal government, the U.S. Solicitor General recommended review and has filed an amicus brief on behalf of Kansas seeking reversal.

By my count, six other cases granted for the coming Term, in addition to Garcia, are cases with criminal immigration implications: the three consolidated DACA (“deferred action for childhood arrival” cases); two consolidated equitable-tolling cases; and Barton v. Barr, a complex statutory question involving the application of a “stop-time rule” to permanent residents found to have committed certain offenses. The court’s early-term focus on immigration questions undoubtedly reflects the current national concerns about immigration issues and their consequences.

The rest

The foregoing discussion still leaves 11 additional criminal cases already granted for argument this term. We “can’t catch them all,” but here are some highlights.

Virtually no term goes by without at least one Fourth Amendment case. In Kansas v. Glover – Kansas is really under the microscope this term! – the court will consider whether it is reasonable to suspect that the registered owner of a vehicle is currently its driver. Deputy Sheriff Mark Mehrer learned that the registered owner of a pickup truck he saw moving on the road had a suspended license, and he stopped the vehicle. Indeed, the driver, Charles Glover, was the owner and was charged with driving on a revoked license as a habitual violator. But the trial court suppressed evidence, finding the inference that the registered owner must be the driver to be unreasonable, and the Kansas Supreme Court ultimately affirmed (after the state court of appeals had reversed). The U.S. solicitor general has filed as amicus in support of Kansas’ petition, and the case will be argued on November 4.

Similarly, at least one death-penalty case is almost always on the court’s annual docket. OT 19 is no exception. In McKinney v. Arizona the justices will address questions revolving around the use and evaluation of mitigating evidence in capital cases.

Two cases involve significant reprises from prior terms. Hernandez v. Mesa is the case in which a federal Border Patrol agent shot across the U.S.-Mexico border and killed 15-year-old Sergio Hernandez Guereca. When the boy’s parents’ wrongful-death lawsuit reached the Supreme Court in 2017, the eight-justice court remanded in a per curiam 5-3 decision. The parents now ask the Supreme Court to reverse the United States Court of Appeals for the 5th Circuit and rule that they should be allowed to file a claim against the officer for damages directly under the Constitution (technically referred to as a “Bivens action,” after a 1971 case by that name). The court, however, has been disinclined to expand the Bivens concept in recent years.

Meanwhile, last term the justices were unable to decide the case of Carpenter v. Murphy (now Sharp v. Murphy), with Justice Neil Gorsuch recused, so they restored the case to the docket for reargument (still not scheduled) this term. The question is which authority (the state or federal authorities on behalf of Indians) has jurisdiction to prosecute major crimes allegedly committed by Indians in territory covering about half of the state of Oklahoma. Has the immense Muscogee (Creek) reservation been “disestablished?” Or is there some other way to avoid the immense territorial implications of the case, which were seemingly not clear even after oral argument and supplemental briefing? Especially if retroactive, a decision for Murphy could have far-reaching implications. However, it is decided, this could be the big sleeper decision of the term.

In Kelly v. United States, the court granted certiorari on the last day of the previous term to review the high-profile “Bridgegate” fraud convictions of public officials who ordered the closing of traffic lanes on the George Washington Bridge from New Jersey to New York City, causing massive traffic jams, as “political payback” while publicly proclaiming a neutral “traffic study.” In light of recent limiting decisions (see McDonnell v. United States and Skilling v. United States), the justices will consider whether further restrictions on the application of federal criminal fraud statutes are required.

In Shular v. United States, the justices will once again confront the much-critiqued “categorical approach” to evaluating which state offenses count as predicates for enhanced federal sentencing.

Somewhat refreshingly, the court granted review on a typewritten pro se prisoner petition for certiorari in Banister v. Davis, a habeas case. Once the court requested a response from Texas, Banister enlisted a former assistant solicitor general and clerk to Justice Sonia Sotomayor to represent him, and the case, although dry, will be significant to the habeas bar.

Last for this overview, and perhaps least, an odd New York City regulation raised significant questions about how Second Amendment gun control laws should be evaluated. But the regulation and a New York state licensing statute have since been amended, and New York has asked that the case be dismissed as moot. Although some justices may be itching for a Second Amendment vehicle, chances are this case will not be it.

Conclusion

The Supreme Court’s docket is a bit of an optical illusion: it always looks very different at the start from the way it is perceived by the following July. Big cases argued in October are decided by early spring and by then are overshadowed by new grants of review, which we now perceive, “if foreseen at all, … dimly.” So stay tuned. The sense of imminence and uncertainty is one reason the court and its machinations provide such an irresistible attraction!

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondent in Kansas v. Glover. The author of this post is not affiliated with the firm.]

The post Overview of the court’s criminal docket for OT 19 – sizeable and significant appeared first on SCOTUSblog.

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#law #justice

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lameldeckd7162-blog · 7 years ago

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Shortcuts To Austin Traffic Lawyer That Only A Few Know About

Getting the very best Sell Attorney Services

In some cases, finding the right attorney and the best attorney solutions is not easy. There are great deals of things that you have to take into consideration. You have to consider the services you need and also just what specific lawful know-how do you require. Your state laws for getting lawyer services are likewise amongst the major variables that need to be thought about. It is additionally a need to that you recognize the exact requirements of the lawful procedures where you will certainly need lawyer solutions.

Here are some legal areas in attorney services to assist you in your decision-making;

* Migration lawyer services--.

If your situation is related to migration, you ought to get these services. You need to determine whether the immigration is employment-based or family-based. Likewise understanding your state laws about migration is essential in this case.

* DUI attorney solutions--.

If you're associated with a DRUNK DRIVING situation, you have to work with the best attorneys in town; or you may wind up doing social work or even jail time.

* Social security attorney services--.

If your trouble includes social security concerns such as medical insurance policy, you should get these services.

* Crook defense attorney solutions--.

An excellent lawful company or attorney must be employed for this set.

* Divorce attorney solutions--.

You have to find the most effective solutions in town so you can surpass the humiliation of this issue quick.

Whatever among these cases you are in, it is best to remember that you must work with an attorney that are dependable and also genuine in helping you to win your instance. After all, you are going to pay them as well as lawyer services fees are primarily significant. For this reason, it is just wise to get the most effective from what you will certainly invest for.

Handling Attorney Services Charges.

Mentioning charges, these belong to working with attorneys. You need to pay them so they can offer you what you get out of them. There are cost-free lawyer solutions but a lot of require you to spend some amount. There are things that you need to take into consideration when handling lawyer costs.

Right here are some;.

* Exactly what charge setups you need to make use of.

This will depend upon your offer. You could ask your attorney on just how he or she will certainly bill you. There 3 basic plans for settlements;.

* Hourly rates-- where you need to spend for the attorney services based on the hrs rendered.

* Level price-- mostly, this will certainly consist of out-of-pocket costs spent by the attorney.

* Backup fee-- this is normally some percent of just what you will certainly receive from the case. You will certainly discuss this; what does it cost? she or he will certainly get depending on what does it cost? you will certainly also get.

* Just what type of competence is needed? When choosing regarding fees, the important things to consider are the kinds or degree of proficiency needed in the event. Likewise, what does it cost? work is to be done should be thought about.

The best ways to Obtain the Best Attorney Services?

Taking care in selecting the attorney you will certainly hire is essential. First, the success of the case normally relies on how excellent you are represented. As well as second, since you are spending money below. You have to obtain what your money's worth. It is finest that you just work with a firm or a lawyer who could offer you the very best attorney solutions. You could ask your pals or relatives if they have a lawyer to refer. Referral is a good thing because you can be sure that you will obtain exactly what you and also your loan should have.

Ohio Family Members Attorney Solutions: Talk to the Professionals on Family Members Regulations.

It is always a fundamental need for household legislation lawyers to be well-informed and reliable but additionally sensitive to the emotional problems of their clients. They should recognize the pressure that their customers are going through throughout these life transforming events.

Since they are handling several delicate household situations, it is a need to for them to construct a favorable relationship with customers. One method to do this is to maintain them well notified of the standing of their instances in addition to apply activities to progress. This way, their customers will certainly have a feeling of depend on and also dependency thus, constantly expecting have the very best positive results on their legal instances.

If you are staying in Ohio and also require some lawful help on your details family members disagreements or instances, then you need to make the sensible action of bringing it to credible as well as professional Ohio family attorney services. They will certainly give quality legal solutions to individuals throughout the Central Ohio in a huge series of household regulation matters consisting of:.

- Separation.

- Dissolution.

- Child safekeeping.

- Kid assistance.

- Child adoption.

- Paternal.

- Spousal support or alimony.

- Post mandate alterations and also enforcement.

- Lawful splitting up.

- Visitation rights.

- Grandparent's legal rights.

- Residential partnership.

- Juvenile crimes.

- Residential violence.

- Mediation and also arbitration.

- Non-traditional family members.

Family legal representatives from Ohio family lawyer services understands family regulation and all psychological trauma that usually accompanies the struggles dealt with in this field. From the melancholy that is typically produced by separation instances to the incredible joy of including a family member through kid adoption, be rest assured that family attorney services in Ohio will stand by you and help you out with the process simpler as well as less difficult.

They will certainly ensure that their customers are well educated throughout the legal process. As a result of that the life of the clients are the ones that are changing, family legislation lawyers of Ohio will certainly strive and also maintain clients updated and make that modification a lot more manageable.

Household law office in Ohio typically stand for men and women in straightforward and challenging family issues. From uncontested divorce to intricate separation litigation as well as guardianship conflicts, they all have the capacity to deal with just every type of family regulation matters.

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lawofficesofmichaelsbrown-blog · 7 years ago

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Stephens and Brown have achieved the highest possible AVVO ranking for DUI defense. Attorney Kim T. Stephens was named to the National Trial Lawyers Top 100 list, and received the AVVO Client’s Choice Award for DUI defense. Both Kim T. Stephens and Michael S. Brown were named the Athens Banner Herald’s Reader’s Choice best attorney in separate years. Let DUI attorneys Kim T. Stephens and Michael S. Brown put their considerable skills to work for you, reviewing every aspect of your case, searching for discrepancies and inaccuracies, interviewing witnesses and double-checking field sobriety test results. With either attorney by your side, you can feel confident knowing that you will receive the best possible defense and outcome for your individual case.

Attorneys Kim T. Stephens and Michael S. Brown also represent clients in a wide array of traffic violations and offenses, including speeding tickets, driving while under Habitual Violator status, driving without insurance and driving with a suspended license.

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vsbylc · 7 years ago

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Back Against the Wall: Effective Immigration Lawyering Under the Trump Administration

By Soulmaz Taghavi

On January 25, 2017, President Trump signed an Executive Order titled “Enhancing Public Safety in the Interior of the United States,” accompanied by a dramatic expansion of immigration enforcement. On February 20, 2017, Department of Homeland Security (DHS) Secretary John Kelly issued a memorandum outlining an implementation plan for President Trump’s Executive Order. Secretary Kelly’s memorandum leads with an immediate rescinding, to the extent of a conflict, of all existing directives, memoranda or field guidance governing apprehension, detention, and removal of undocumented aliens.

The 2017 DHS memorandum effectively nullifies a 2014 DHS memorandum issued by the Obama Administration that provided clear, focused, and logical enforcement priorities. The 2014 DHS memorandum directed the agency to devote its time, resources, and energy to violent criminal aliens who posed a threat to public security. Aliens with minor infractions were considered to be a low priority.

In the ever-changing world of immigration law, the 2014 memo made it easy to distinguish whom ICE agents would pursue, as well as when and how they would do so. If you are a habitual offender or have a felony conviction, certain misdemeanors, or even a DUI conviction, you should expect to be pursued, and you have a lot to overcome. In contrast, if you have no criminal convictions and demonstrate positive qualities (also known as favorable “equities”) such as paying taxes, having stable employment, having a continuous physical presence in the community, or being a contributing community member, you should expect your unlawful presence to be “tolerated” until or unless a criminal conviction or a serious immigration violation occurs.

However, the Trump administration’s new Executive Order changes everything. Now, there are essentially no tiered priorities, creating a veritable “free for all” for ICE agents. Undocumented immigrants, no matter how sympathetic, law abiding, and honorable, are subject to inhuman apprehension, detention, and possible removal, with little regard to his or her due process rights or any humanitarian concerns (e.g. young, underprivileged, or physically/mentally ill U.S. citizen children, spouse or parents). This has resulted in complete chaos for practitioners and wide-spread fear and anxiety for noncitizens.

Example of the New Executive Order at Work

It was a cool March morning, after the morning docket ended in Chesterfield Juvenile and Domestic Court, which is located in a county hugging the south of Richmond in Central Virginia. Mr. Guerrero, an undocumented immigrant, exits the court with a deep sigh of relief and gratitude as his charge of assault and battery against a household member was nolle prosequi (i.e. abandonment by a plaintiff or prosecutor of all or part of a suit or action).

While attempting to leave the courtroom to return home to his wife and U.S. citizen children, Mr. Guerrero was confronted by two large, heavily armed men donning military fatigue t-shirts and bulky black bullet proof vests with ICE logos. ICE stands for U.S. Immigration and Customs Enforcement.

The exchange between these ICE agents and Mr. Guerrero was overwhelming, unexpected, and confusing. The Judge, from inside the courtroom, noticed an unusual commotion and asked the Bailiff to handle the disruption. Mr. Guerrero was served with a “warrant for alien arrest” and a “notice to appear,” which is a charging document placing him into removal proceedings in the Arlington Immigration Court.

Broadening Removal Authority and Resurrecting Flawed and Questionable Initiatives

The Trump Administration’s 2017 executive order uses exceptionally broad language, which includes prioritizing and detaining those who have been charged or convicted, or both, with minor infractions like jaywalking or driving without a license, anyone who was once charged with a criminal offense but has since been acquitted of all charges, and all undocumented individuals under the presumption that they committed the chargeable offense of “improper entry,” a civil offense.

The Administration also expanded the authority of the U.S. Customs and Border Protection (CBP) under section 287(g) of the Immigration and Nationality Act, allowing CBP to enter agreements with local police authorizing them to arrest “potentially removable noncitizens” while in the field. This was a policy the Obama Administration discontinued because of diminished due-process rights and the encouragement of racial profiling by law enforcement. Further, the once discontinued Secure Communities initiative was resurrected. Service Communities is a program requiring local law enforcement to share information about individuals in its custody with DHS and authorizes DHS to issue detainers to local jails and correctional facilities for holding an individual beyond the scheduled release date so ICE can take custody.

This program was terminated in 2014 because of the controversy and litigation surrounding constitutional violations where noncitizens have been subjected to indefinite detention, and saw the rise of police-community fear and distrust, as well as racial profiling. The executive order gives rise to many other stark changes, including establishing a Victims of Immigration Crime Engagement (VOICE) Office, the hiring of additional ICE officers and agents, new “expedited removal” processes that avoid due-process considerations, and the collecting and reporting of data about alien apprehensions and releases.

Ethical Considerations

If you thought immigration law was as vast and nuanced as tax law before, you are now in for a surprise. In 2017, the threat of apprehension, detention, bond, defensive and affirmative relief, and removal proceedings are common place. Counseling clients gives rise to a myriad of ethical considerations. Further, these considerations extend beyond the mere practice of immigration law. For example, if you practice family law or criminal defense, you must consider the numerous factors that can irreparably harm an individual, his or her family, his or her business, or his or her community. In the 2010 Supreme Court case, Padilla v. Kentucky, 559 U.S. 356 (2010), the Court held that criminal-defense attorneys are required under the Sixth and Fourteenth amendments to advise noncitizen clients of the immigration consequences of a plea deal. In 2015, the Supreme Court of Virginia issued a decision in Zemene v. Clarke, 289 Va. 303 (2015), that articulated a broad view of defense attorneys’ obligations under Padilla to their immigrant clients in Virginia.

Let’s do a refresher: Padilla requires defense counsel to advise a noncitizen defendant of immigration consequences of a guilty plea, and, absent such advice, a noncitizen may raise an ineffective-assistance-of-counsel (IAC) claim to vacate a noncitizen’s criminal conviction that has triggered negative immigration consequences. Therefore, defense counsel has a duty to inquire into immigration status and to investigate and advise a noncitizen client regarding the immigration consequences of a criminal conviction. Which, not to mention, a “conviction” under the Immigration and Nationality Act (INA), is much broader than it is defined in a criminal setting. Further, Padilla requires affirmative, competent advice rather than mere affirmative misadvise. A defense lawyer’s silence regarding immigration consequences of a guilty plea consists of IAC, even when deportation consequences of a plea are unclear or uncertain. The Padilla court also stated that informed consideration of immigration consequences should not be an issue solely for the defense, but also one for the prosecution. A prosecutor’s meaningful consideration of the immigration consequences at stake in the plea negotiation process is important “to reach agreements that better satisfy the interests of both parties . . . in order to craft a conviction and sentence that reduce the likelihood of deportation” to help ensure the finality of convictions and mitigate or avoid draconian immigration penalties.

Immigration Practitioner on Speed Dial

Practitioners, even those who do no specialize in immigration law, confront immigration issues, whether in a divorce case representing an abused spouse or in an employment case representing an employer who hired a student lacking work authorization. As such, it is important to have a basic understanding of key issues and their ethical implications. If you want to learn more, join your local chapter of American Immigration Lawyers Associations (AILA) and, at the very least, meet and network with immigration practitioners who you can count on for guidance or to take over when you cannot competently move forward.

Soulmaz Taghavi is 2014 graduate of North Carolina Central University School of Law and Co-Founder of the Novo Taghavi law firm located in Richmond, Virginia where she practices immigration law, criminal and traffic defense, and family law.

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ginapaul · 8 years ago

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marymosley · 4 years ago

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Meet Mary Pollard, the new Director of the Office of Indigent Defense Services

Tell us about your legal background.

How did you get into indigent defense work?

What then?

Was it hard to leave PLS?

What made you consider becoming the IDS Director?

What else would you like people to know about you?

How should people reach you?

The post Meet Mary Pollard, the new Director of the Office of Indigent Defense Services appeared first on North Carolina Criminal Law.

Meet Mary Pollard, the new Director of the Office of Indigent Defense Services published first on https://immigrationlawyerto.tumblr.com/

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marymosley · 5 years ago

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Criminal Cases to Watch in the Supreme Court’s 2019 Term

The United States Supreme Court’s 2019 term is well underway, and several criminal law cases are on the docket. Listed below are the principal criminal law cases currently before the court, with a link to the docket entry for each case, followed by the Questions Presented.

Kansas v. Garcia, No. 17-834 : In 1986, Congress enacted the Immigration Reform and Control Act CIRCA (IRCA). IRCA made it illegal to employ unauthorized aliens, established an employment eligibility verification system, and created various civil and criminal penalties against employers who violate the law. 8 U.S.C. § 1324a. Regulations implementing IRCA created a “Form I-9” that employers are required to have all prospective employees complete-citizens and aliens alike. IRCA contains an “express preemption provision, which in most instances bars States from imposing penalties on employers of unauthorized aliens,” Arizona v. United States, 567 U.S. 387, 406 (2012), but IRCA “is silent about whether additional penalties may be imposed against the employees themselves.” Id. IRCA also provides that “[the Form I-9] and any information contained in or appended to such form, may not be used for purposes other than enforcement of [chapter 12 of Title 8] and sections 1001, 1028, 1546, and 1621 of Title 18.” 8 U.S.C. § 1324a(b)(5). Here, Respondents used other peoples’ social security numbers to complete documents, including a Form I-9, a federal W-4 tax form, a state K-4 tax form, and an apartment lease. Kansas prosecuted Respondents for identity theft and making false writings without using the Form I-9, but the Kansas Supreme Court held that IRCA expressly barred these state prosecutions. This petition presents two questions, depending on the answer to the first question: 1. Whether IRCA expressly preempts the States from using any information entered on or appended to a federal Form I-9, including common information such as name, date of birth, and social security number, in a prosecution of any person (citizen or alien) when that same, commonly used information also appears in non-IRCA documents, such as state tax forms, leases, and credit applications. 2. If IRCA bars the States from using all such information for any purpose, whether Congress has the constitutional power to so broadly preempt the States from exercising their traditional police powers to prosecute state law crimes.

Kahler v. Kansas, No. 18-6135: Do the Eighth and Fourteenth Amendments permit a state to abolish the insanity defense?

Shular v. United States, No. 18-6662: Whether the determination of a “serious drug offense” under the Armed Career Criminal Act requires the same categorical approach used in the determination of a “violent felony” under the Act?

Ramos v. Louisiana, No. 18-5924: Whether the Fourteenth Amendment fully incorporates the Sixth Amendment guarantee of a unanimous verdict?

Mathena v. Malvo, No. 18-217: In Miller v. Alabama, 567 U.S. 460 (2012), this Court held that “mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishments.'” Id. at 465. Four years later, in Montgomery v. Louisiana, 136 S. Ct. 718 (2016), the Court held that “Miller announced a substantive rule of constitutional law” that, under Teague v. Lane, 489 U.S. 288 (1989), must be given “retroactive effect” in cases where direct review was complete when Miller was decided. Montgomery, 136 S. Ct. at 736. The question presented is: Did the Fourth Circuit err in concluding-in direct conflict with Virginia’s highest court and other courts-that a decision of this Court (Montgomery) addressing whether a new constitutional rule announced in an earlier decision (Miller) applies retroactively on collateral review may properly be interpreted as modifying and substantively expanding the very rule whose retroactivity was in question?

Kansas v. Glover, No. 18-556: A Kansas officer ran a registration check on a pickup truck and learned that the registered owner’s license had been revoked. Suspecting that the owner was unlawfully driving, the officer stopped the truck, confirmed that the owner was driving, and issued the owner a citation for being a habitual violator of Kansas traffic laws. The Kansas Supreme Court, breaking with 12 state supreme courts and 4 federal circuits, held the stop violated the Fourth Amendment. The question presented is whether, for purposes of an investigative stop under the Fourth Amendment, it is reasonable for an officer to suspect that the registered owner of a vehicle is the one driving the vehicle absent any information to the contrary.

Kelly v. United States, No. 18-1059: Does a public official “defraud” the government of its property by advancing a “public policy reason” for an official decision that is not her subjective “real reason” for making the decision?

United States v. Sineneng-Smith, No. 19-67: Whether the federal criminal prohibition against encouraging or inducing illegal immigration for commercial advantage or private financial gain, in violation of 8 U.S.C. 1324(a)(l)(A)(iv) and (B)(i), is facially unconstitutional.

United States v. Briggs, No. 19-108 and United States v. Collins, No 19-184: Whether the Court of Appeals for the Armed Forces erred in concluding–contrary to its own longstanding precedent–that the Uniform Code of Military Justice allows prosecution of a rape that occurred between 1986 and 2006 only if it was discovered and charged within five years.

Walker v. United States, No. 19-373, Whether a criminal offense that can be committed with a mens rea of recklessness can qualify as a ”violent felony” under the Armed Career Criminal Act, 18 U.S.C. 924(e).

Of these cases, Kansas v. Glover, argued on November 4, interests me most. The Kansas Supreme Court held that an officer lacked reasonable suspicion to stop the defendant’s vehicle when the officer knew only that the vehicle was registered to the defendant and the defendant had a revoked driver’s license, but did not have evidence that the defendant was the person driving the vehicle. State v. Glover, 422 P.3d 64 (Kan. 2018). The court reasoned that an officer could not presume that the owner was the driver because this required the stacking of two unsupported assumptions: (1) the registered owner was likely the primary driver of the vehicle; and (2) the registered owner will likely disregard a license suspension and continue to drive the vehicle.

The Kansas Supreme Court’s holding in Glover is inconsistent with the view taken by many other appellate courts, including North Carolina’s. See State v. Hess, 185 N.C. App. 530 (2007) (adopting “the holding of the majority of jurisdictions that when a police officer becomes aware that a vehicle being operated is registered to an owner with a suspended or revoked driver’s license, and there is no evidence appearing to the officer that the owner is not the individual driving the automobile, reasonable suspicion exists to warrant an investigatory stop.”)

SCOTUSblog has an analysis of the argument in Glover here. The upshot? The justices “seem divided.”

The Supreme Court also has granted review in the Second Amendment case listed below. Even though that case is civil rather than criminal, it may be of interest to criminal law practitioners, particularly given the numerous crimes premised on the unlawful possession of weapons.

New York State Rifle and Pistol Association, Inc. v. City of New York, No. 18-280: New York City prohibits its residents from possessing a handgun without a license, and the only license the City makes available to most residents allows its holder to possess her handgun only in her home or en route to one of seven shooting ranges within the city. The City thus bans its residents from transporting a handgun to any place outside city limits-even if the handgun is unloaded and locked in a container separate from its ammunition, and even if the owner seeks to transport it only to a second home for the core constitutionally protected purpose of self-defense, or to a more convenient out-of-city shooting range to hone its safe and effective use. The City asserts that its transport ban promotes public safety by limiting the presence of handguns on city streets. But the City put forth no empirical evidence that transporting an unloaded handgun, locked in a container separate from its ammunition, poses a meaningful risk to public safety. Moreover, even if there were such a risk, the City’s restriction poses greater safety risks by encouraging residents who are leaving town to leave their handguns behind in vacant homes, and it serves only to increase the frequency of handgun transport within city limits by forcing many residents to use an in-city range rather than more convenient ranges elsewhere. The question presented is: Whether the City’s ban on transporting a licensed, locked, and unloaded handgun to a home or shooting range outside city limits is consistent with the Second Amendment, the Commerce Clause, and the constitutional right to travel.

The post Criminal Cases to Watch in the Supreme Court’s 2019 Term appeared first on North Carolina Criminal Law.

Criminal Cases to Watch in the Supreme Court’s 2019 Term published first on https://immigrationlawyerto.tumblr.com/

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marymosley · 5 years ago

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Case Summaries—Court of Appeals (9/3/2019)

This post provides summaries of the opinions of the North Carolina Court of Appeals from September 3, 2019.

Trial judge did not abuse discretion in admitting crime scene photographs into evidence

State v. Canady, ___ N.C. App. ___, ___ S.E.2d ___ (Sept. 3, 2019)

The defendant was convicted of first-degree murder, assault with a deadly weapon with intent to kill inflicting serious injury, and attempted first-degree murder. The opinion describes in detail the beatings inflicted with a bat by the defendant and two others on the deceased and her fiancé, who was severely injured but survived. The sole issue on appeal was whether the trial judge erred in admitting roughly fifty photographs of the crime scene displaying the victims’ injuries and blood throughout the house. The defendant argued that the trial judge erred in allowing an excessive number of bloody and gruesome photographs that had little probative value and were unfairly prejudicial under Rule 403 of the North Carolina Rules of Evidence. The Court of Appeals held that the trial judge did not abuse its discretion in admitting the photographs. The Court stated, “‘Even gory or gruesome photographs are admissible so long as they are used for illustrative purposes and are not introduced solely to arouse the jurors’ passions’” (quoting State v. Hennis, 323 N.C. 279 (1988)). The Court ruled that the trial judge, having conducted an in camera review of the photographs and considered the defendant’s objections, completed its task of reviewing the content and manner in which the photographs were to be used and that the admission of the photographs reflected a thoroughly reasoned decision. The Court further ruled that the defendant was unable to show that the photographs were prejudicial because of other overwhelming evidence of the defendant’s guilt.

Defendant not entitled to instruction on defense of justification to possession of firearm by person previously convicted of a felony where he testified at trial that he did not possess the firearm

State v. Holshouser, ___ N.C. App. ___, ___ S.E.2d ___ (Sept. 3, 2019)

The defendant was indicted for possession of a firearm—specifically, “a New England Firearms Pardner Model 12 Gauge Shotgun”—by a person previously convicted of a felon. The defendant initially told officers, who were investigating a report of a domestic dispute at the defendant’s home, that he had no knowledge about a shotgun, but he later admitted to one of the deputies that he had thrown the shotgun into the woods and told the deputy where he had thrown it. At trial, the defendant testified that he had been involved in an altercation with his stepson but did not remember taking the shotgun from him. He further testified that he did not take possession of “that gun.” The trial judge gave the pattern instruction on possession of a firearm by a person previously convicted of a felony. There were no objections to the instruction, and the jury found the defendant guilty of the possession charge and of having attained habitual felon status. On appeal, the defendant argued that the trial judge committed plain error by failing to instruct the jury on the affirmative defense of justification. The Court of Appeals held that the defendant was not entitled to the instruction.

The Court first recognized that in State v. Mercer, ___ N.C. ___, 818 S.E.2d 375 (2018), it had recognized the defense of justification to possession of a firearm by a person previously convicted of a felony. The Court noted that the North Carolina Supreme Court has granted review in Mercer but stated that it would follow Mercer as it applied when the defendant’s case was before the trial court. Assuming a justification defense as explained in Mercer applies in North Carolina, the Court stated first that it isn’t clear that a justification defense is a “substantial and essential feature” of the possession charge, requiring an instruction by the trial judge, because the possession statute does not describe justification or self-defense as an element of the offense. The Court then ruled that the defendant’s own testimony, in which he denied possessing the gun alleged in the indictment, rendered a justification defense unavailable. The Court stated that a defendant is not entitled to a justification instruction where he testifies that he did not commit the criminal act at all. The Court also rejected the defendant’s claim of ineffective assistance of counsel based on counsel’s failure to request a justification instruction, holding that even if counsel had requested such an instruction the trial court should not have granted it.

Consecutive sentences for assault with a deadly weapon inflicting serious injury and assault by a prisoner with a deadly weapon inflicting bodily injury did not violate double jeopardy

State v. Smith, ___ N.C. App. ___, ___ S.E.2d ___ (Sept. 3, 2019)

The defendant was convicted of and received consecutive sentences for assault with a deadly weapon inflicting serious injury (ADWISI) and assault by a prisoner with a deadly weapon inflicting bodily injury based on the same act of stabbing another prisoner. The Court of Appeals rejected the defendant’s argument that consecutive sentences for the two offenses violated the Double Jeopardy Clause of the Fifth Amendment. The Court reasoned that the ADWISI charge requires that the injury be serious while the assault by prisoner charge requires bodily injury only, which may or may not be serious. The Court reasoned further that the assault by a prisoner charge requires bodily injury while the ADWISI charge may be shown by a physical or mental injury. The Court concluded for these reasons that “serious injury” and “bodily injury” are not synonymous and the defendant’s double jeopardy argument therefore fails.

Court of Appeals refuses to recognize civil cause of action for violation of state constitutional right to a speedy trial

Washington v. Cline, ___ N.C. App. ___, ___ S.E.2d ___ (Sept. 3, 2019)

The plaintiff sued the State of North Carolina, City of Durham, various people who worked for the State Bureau of Investigation, the Durham Police Department, and the Durham County District Attorney’s office for a permanent injunction and money damages to redress harms allegedly suffered in connection with his pretrial detention, investigation, and prosecution. The plaintiff, then the criminal defendant, was arrested in 2002 for a home invasion involving an armed robbery and attempted sexual assault and was tried almost five years later. The Court of Appeals, in State v. Washington, 192 N.C. App. 277, vacated his conviction, finding a denial of his speedy trial rights under the United States and North Carolina Constitutions. The trial judge in this case granted the civil defendants’ motion for summary judgment against the plaintiff on his claim that the defendants violated his state constitutional right to a speedy trial. The Court of Appeals recognized that a victim of a constitutional violation may sue for some constitutional violations, such as a violation of the Fourth Amendment protection against unreasonable searches and seizures under the United States Constitution, but the right to sue for damages has not been extended to the deprivation of the Sixth Amendment right to a speedy trial. The Court declined to recognize a private cause of action for the deprivation of the right to a speedy trial under the North Carolina Constitution. Noting that the plaintiff did not appeal the trial judge’s decision about the causes of action alleged by the plaintiff other than his state constitutional claim, the Court declined to address the other causes of action.

(1) Evidence was sufficient to support speeding to elude arrest where law enforcement was performing lawful duty of office at time of traffic stop; (2) Waiver of counsel was not knowing, voluntary, and understanding where trial judge erroneously advised the defendant about the maximum punishments for the charges

State v. Mahatha, ___ N.C. App. ___, ___ S.E.2d ___ (Sept. 3, 2019)

The defendant was charged with driving while license revoked, not an impaired revocation; assault on a female; possession of a firearm by a person previously convicted of a felony; attempted robbery with a dangerous weapon; and habitual felon status. The State proceeded to trial on the charges of speeding to elude arrest and attaining habitual felon status, dismissing the other charges. The defendant was found guilty of both, and the trial judge sentenced the defendant to 97 to 129 months’ imprisonment.

(1) The defendant argued that the trial judge erred in failing to dismiss the speeding to elude arrest charge. According to the defendant, at the time the law enforcement officer activated his blue lights and siren to initiate a traffic stop, the officer did not have reasonable suspicion to stop the defendant and therefore was not performing a lawful duty of his office. The Court of Appeals rejected this argument, holding that the circumstances before and after an officer signals his intent to stop a defendant determine whether there was reasonable suspicion for a stop. Here, after the officer put on his lights and siren, the defendant accelerated to speeds of 90 to 100 miles per hour, drove recklessly by almost hitting other cars, pulled onto the shoulder to pass other cars, swerved and fishtailed across multiple lanes, crossed over the double yellow line, and ran a stop sign before he parked in a driveway and took off running into a cow pasture, where the officers found him hiding in a ditch. These circumstances gave the officer reasonable suspicion of criminal activity before he seized the defendant.

(2) The defendant argued that that the trial judge failed to comply with the statutory mandate of G.S. 15A-1242 before allowing the defendant to represent himself. The Court of Appeals agreed, finding that the trial judge failed to inform the defendant of the nature of the charges and proceedings and the range of permissible punishments. The trial court erroneously informed the defendant that: obtaining the status of habitual felon is a Class D felony when being a habitual felon is a status, not a crime; erroneously indicated that the defendant faced a maximum possible sentence of 47 months for possession of a firearm by a person previously convicted of a felony when he faced a maximum of 231 months if determined to be a habitual felon; failed to inform the defendant of the maximum prison term of 231 months for the attempted robbery with a dangerous weapon if he were determined to be a habitual felon; erroneously referred to the speeding to elude arrest as fleeing to elude arrest and failed to inform the defendant that the habitualized maximum was 204 months; and asked the defendant whether he understood that he could face 231 months when he could actually have faced 666 months and 170 days. The Court of Appeals concluded that the defendant’s waiver of counsel was not knowing, intelligent, or voluntary and vacated his convictions and remanded for a new trial.

(1) Flight from unlawful investigatory stop did not constitute resisting, delaying, or obstructing an officer; (2) Because defendant voluntarily abandoned gun before he submitted to officer’s authority, gun was not obtained as result of unlawful seizure and was admissible at trial

State v. Holley, ___ N.C. App. ___, ___ S.E.2d ___ (Sept. 3, 2019)

The defendant was charged with possession of a firearm by a person previously convicted of a felony and resisting, delaying, or obstructing an officer. The State dismissed the resisting charge before trial, and the defendant filed a motion to suppress the firearm. The trial judge denied the motion to suppress, the defendant did not object to the introduction of the firearm at trial, and the defendant was convicted. Because the defendant failed to object to the firearm at trial, the Court of Appeals applied plain error review to the denial of his suppression motion.

(1) The evidence showed that the police chief received a call about possible drug activity involving two black males outside a store and radioed the information to patrol officers. A patrol officer saw two men who matched the description walking on the sidewalk, and he parked his marked patrol car. The patrol officer testified that the two men saw him and continued walking. When the officer yelled for the defendant to stop, he looked at the officer and then ran. Another officer eventually located the defendant and arrested him for resisting, delaying, or obstructing an officer.

The Court of Appeals found that the evidence did not support the trial judge’s findings of fact in its denial of the defendant’s suppression motion. Thus, the trial judge found the area had been the scene of several drug investigations and shootings in the previous months, but the police chief testified that for approximately seven years he could recall three arrests for drugs and marijuana and did not testify that they took place in the past several months. The patrol officer testified that he had responded to one shooting in the area but didn’t indicate when the shooting occurred and since then had responded to loitering and loud music issues. The trial judge also found that the defendant walked away “briskly” when he first saw the patrol officer, but the officer testified that the defendant was just walking down the sidewalk. The officer’s later testimony at trial that the defendant kept walking away faster and faster was not before the judge at the suppression hearing and could not be used to support the judge’s findings of fact. The Court found next that the trial judge’s supported findings of fact did not support his conclusion that the officer had reasonable suspicion to stop the defendant initially or probable cause to arrest for resisting. Thus, even assuming the incident took place in a high crime area, the defendant’s presence there and his walking away from the officer did not provide reasonable suspicion to stop. (The Court noted that the patrol officer was unaware of the tip received by the police chief and therefore did not consider the tip in measuring the reasonableness of the stopping officer’s suspicion.) Because the officer did not have reasonable suspicion to stop, the Court found that the defendant was not fleeing from a lawful investigatory stop and the trial judge erred in concluding that there was probable cause to arrest the defendant for resisting.

(2) When the second officer detained the defendant, the defendant did not have a firearm on him. Rather, a K-9 unit recovered the firearm underneath a shed along the defendant’s “flight path.” The Court of Appeals found that the defendant voluntarily abandoned the firearm before he was seized by law enforcement officers. The evidence was therefore not the fruit of an unlawful seizure, and the Fourth Amendment did not bar its admission at trial.

Majority of Court of Appeals finds that trial judge did not commit plain error in admission of various evidence or instructions in indecent liberties case

State v. Betts, ___ N.C. App. ___, ___ S.E.2d ___ (Sept. 3, 2019)

The defendant was charged with three counts of indecent liberties with a child. A majority of the Court of Appeals found that the following matters did not constitute plain error and did not warrant a new trial. (1) At trial, the State’s witnesses included two expert witnesses, who testified to the profile and characteristics of children who have been sexually abused. The defendant argued that the trial judge should have given a limiting instruction so that the jury would not have treated the testimony as substantive evidence. The Court rejected the defendant’s argument because he did not request a limiting instruction. (2) The State’s experts and lay witnesses repeatedly used the term “disclose” or variations thereof when summarizing the child’s statements to them. The defendant argued that use of this term lent credibility to the child’s statements and was a comment on her credibility in violation of the prohibition on “vouching” for a witness’s credibility. The Court held that the term “disclose,” standing alone, does not convey believability or credibility and an unpublished opinion suggesting the contrary (State v. Jamison, ___ N.C. App. ___, 821 S.E.2d 665 (2018)), is not persuasive. (3) The State offered into evidence a report about the child from one of its experts. The defendant argued that the opinions and recommendations in the report showed that the expert found the child credible. The defendant’s counsel initially objected to the report but, after the State redacted portions of the report, told the trial court that she had no objection The Court held that to the extent it was error to admit the report, the error was invited. (4) The trial judge gave a limiting instruction to the jury on consideration of testimony about the diagnosis that the child had PTSD. The judge instructed the jury that it could consider the testimony to corroborate the child’s testimony and to explain a delay in reporting. The Court rejected the defendant’s argument that the second purpose was improper, finding that prior decisions had found that explaining delay was a permissible purpose of such evidence. (5) The State offered evidence of past incidents of domestic violence by the defendant against the child and her mother. The defendant argued that the evidence was of no consequence to whether he took indecent liberties with the child. The Court found that such evidence can be permissible where the victim has delayed reporting sexual abuse out of fear or apprehension. (6) The Court of Appeals noted that because it found no prejudicial error, it need not address the defendant’s argument that the cumulative effect of the errors rendered his trial fundamentally unfair.

The dissenting judge found that the trial judge plainly erred in admitting evidence that improperly vouched for the credibility of the child, who was six years old at the time of the alleged events. He stated: “The credibility of the complainant was the sole evidence and issue before the jury. . . . The State produced no other physical evidence, eyewitness testimony or anything else to corroborate these allegations, other than improper bolstering babble restating M.C.’s allegations. The trial court plainly erred in admitting evidence that improperly vouched for the credibility of the complainant, the sole province of the jury.” Slip Op. at 22. Because there was a dissent, the decision will be reviewed by the North Carolina Supreme Court.

(1) Majority of Court of Appeals holds that constructive possession and acting in concert instructions were supported by evidence in drug possession case; (2) Court finds that the defendant should have been sentenced in prior record level V, not prior record level VI

State v. Glover, ___ N.C. App. ___, ___ S.E.2d ___ (Sept. 3, 2019)

The defendant was charged with possession of various drugs found in his bedroom and an adjoining alcove, which he said was his personal space. The defendant shared the house with a number of people, including a woman named Ms. Stepp. The defendant consented to a search of his bedroom and alcove, stating to the officers he did not believe they would find any illegal substances, only drug paraphernalia. When asked whether he had ingested any illegal substances, the defendant admitted having used methamphetamine and prescription pills. The search of the defendant’s bedroom uncovered a white rectangular pill marked G3722, a small bag of marijuana, and drug paraphernalia. The search of the alcove uncovered a metal tin containing methamphetamine, cocaine, heroin, and a small pill similar to the one found in his bedroom. The defendant was charged with and convicted of possession of methamphetamine, heroin, and cocaine and having attained the status of an habitual felon.

(1) At trial, over the defendant’s objection, the trial judge instructed the jury that it could find the defendant guilty of possession on the theory of acting in concert in addition to the theory of constructive possession. On appeal, the defendant argued that the evidence did not support an instruction on acting in concert. The majority recognized that prior cases stated that the acting in concert theory is not generally applicable to possession offenses because it tends to get confused with other theories of guilt; however, acting in concert may occur if the evidence shows that the defendant was acting together with another person who did the acts necessary to constitute the crime pursuant to a common plan or purpose to commit the crime. The majority found sufficient evidence of acting in concert based on the testimony of Ms. Stepp, who the defendant called as a witness. She testified that she placed the metal tin in the dresser in the alcove, that the drugs were hers, that she intended to come back later to use them, and that she and the defendant had taken drugs together in the past. The majority found this sufficient evidence of acting in concert because the jury could have found that the defendant was aware of the presence of the drugs in the metal tin and that he facilitated Ms. Stepp’s constructive possession by allowing her to keep her drugs in a place where they would be safe from others.

The dissent found that this evidence was insufficient to show that the defendant acted together with Ms. Stepp pursuant to a common plan or purpose to possess the drugs in the metal tin. The dissent found no evidentiary support for the majority’s conclusion that the defendant facilitated Ms. Stepp’s possession by allowing her to keep the drugs in the alcove. The dissent concluded that the error was not harmless and the defendant should receive a new trial. Because there was a dissent, this aspect of the decision will be reviewed by the North Carolina Supreme Court.

(2) Based on the stipulation of counsel to the prior record worksheet, the trial judge found that the defendant had 47 prior convictions and was in prior record level VI. The Court found that the following 32 convictions should not have been counted: convictions used to support habitual felon status in this case; convictions rendered in the same week or session of court other than the one with the highest points; and Class 2 and lower misdemeanor convictions. The Court held that of the 15 remaining convictions, six were out-of-state convictions and were incorrectly classified. Only two should have been counted and then as Class I felonies. The Court held that precedent continues to prohibit the parties from stipulating to the similarity of out-of-state convictions or the resulting North Carolina classification. The Court distinguished State v. Arrington, ___ N.C. ___, 819 S.E.2d 329 (2018), which held that when an offense is split into two separate crimes and the defendant stipulates to the higher offense class, it is assumed that the higher classification is sufficiently supported by the underlying facts of the crime. For out-of-state convictions, in contrast, the parties must establish that the elements of the out-of-state conviction are similar to those of a North Carolina offense; only then may a stipulation determine the underlying facts of the offense and the appropriate classification. Based on this review, the Court found the defendant had 11 convictions that could be used, which placed him in prior record level V. The judge who dissented on the acting-in-concert instruction concurred in this part of the opinion but would not have reached the issue because she found that the defendant was entitled to a new trial.

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