Ask A Lawyer: Getting My License Back

Question: 2008 and 2009 were bad years for me driving. While I was in college I was charged with an underage DWI, a speeding, and a Driving While License Revoked. I also had a Failure To Appear, since I was 3 counties away. 3 years later, I need my license back. Where do I begin?

Answer: You should pull a copy of your NC DMV record and then talk to a good attorney. It is often just guess work to figure out how to get you driving again without first reviewing all of the reasons the DMV has on your record. With a copy of your DMV record, an experienced attorney could discuss each step. Please contact our Firm if you cannot find a local attorney.

Do You Have A DREAM?

Uriel Alberto has become quite the celebrity in North Carolina. He was recently released from a short stint he did in a Wake County jail when he posted bail.

 

He and two other protesters were arrested after they stood up in the middle of a committee hearing on February 29^th in Raleigh, revealing shirts that read “Undocumented and Unafraid”.

 

The other two protesters were free to go shortly after they were processed but Alberto, who has a criminal history in Forsyth County, was forced to stay longer.

 

His criminal record includes several traffic violations that include an underage DWI, as well as dismissed domestic violence charges.

 

The NC Dream Team and El Cambio organized the protest in Raleigh. Several grassroots organizations have tried to keep pressure on both passing and stalling the Dream Act, which would allow undocumented youths to take steps towards achieving residency or citizenship in the US after paying a fine and pursuing a college education.

 

Mr. Alberto is just one of the estimated 51,000 in North Carolina alone that would benefit from the DREAM Act. He passed up an opportunity to attend Eastern Carolina University in large part to the out-of-state tuition that is charged to undocumented youths.

 

The Dream Act, an acronym for Development, Relief, and Education for Alien Minors, was recently reintroduced to the Senate in 2011 again after a modification in 2010. The bill has the following requirements for youth to be eligible:

 

1)     Lived in the US at least five years,

2)     Currently 29 and under and having arrived in the US at 15 or under

3)     Graduated or obtained a GED from an American high school and have graduated from a two year community college or completed at least two years towards a Bachelor’s degree OR serve at least two years in the US military

4)     Be a person of good moral character

 

The bill, as it stood in 2010, excluded anyone who had committed one felony or three misdemeanors. It doesn’t specify whether the person had to be convicted of said charges.  Mr. Alberto, even though he has a DWI (a misdemeanor in North Carolina), would still have been eligible if he continued his education or served in the military.

Is It Ever OK to Shoot First?

The last few days have seen a tragedy in Florida that could change the way self defense laws are written and used nationwide.

Trayvon Martin, a 17 year old walking to the home of his father’s girlfriend, was shot and killed last month by a volunteer citizen on patrol. Police and prosecutors, having grown accustomed to the difficulty of prosecuting a crime when the accused invokes the “Stand Your Ground” law, have been hesitant to press charges.

Stand Your Ground, also referred to as Shoot First by opponents, refers to the laws allowing a person to use deadly force when they feel that they are in danger of death or severe bodily injury (think paralysis, not nosebleed). Many states, including Florida and North Carolina, have some form of this law. Stand Your Ground can be considered an extension of the Castle Doctrine, which says that a person may use deadly force when his or her home is invaded. These are the only two exceptions to the common-law theory that, when threatened, a person must retreat as much as possible before using force against their attacker.

While these laws were created to be an affirmative defense- meaning a person can claim that he was justified for the act he is on trial for- the situation in Florida shows that they have become a tool for dismissal in too many cases. Justice departments facing budget cuts and budget drains may be hesitant to pursue charges against someone that they think is likely to be found not guilty or charges dismissed because of Stand Your Ground.

George Zimmerman should have a hard time proving that Stand Your Ground applies to him. The law is clearly written to be self defense. Self defense does not include stalking a walking teenager, following him with your car until you decide to get out and chase him down with a gun. Self defense also does not mean that after you’ve tackled someone, if they fight back, you can defend yourself with deadly force.

Again we have a law that started out with a good purpose, but has quickly been twisted. A law aimed at giving domestic violence victims the right to protect themselves without having to retreat first, a law designed to allow people who are physically threatened to respond with force, has been twisted into an excuse for a brutal shooting of an innocent teenager.

When Is A Moral Victory Not A Moral Victory?

North Carolina’s legislature wrote an amendment to the state Constitution that will be voted on during primaries on May 8^th, 2012. Amendment One, as it is called, would take the current law banning same sex marriages a step farther. The amendment is worded:

“Marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State. This section does not prohibit a private party from entering into contracts with another private party; nor does this section prohibit courts from adjudicating the rights of private parties pursuant to such contracts.”

Setting aside all religious or moral debates, this amendment is making people across the state nervous, and rightly so. This amendment would erase all legal rights and protections afforded to individuals in committed, non-married relationships. Seniors who cohabitate because marriage would cause them to lose benefits, particularly widows whose only income is a pension from their deceased husbands, would be forced to get married or lose the right to visit their loved one in the hospital.

There are many companies, including some government agencies, whose employee benefits package include “domestic unions”. These may be same sex couples, but they also could be roommates living together to share expenses. Removing these benefits will expose individuals who are struggling to get by as it is to a loss of health care or prescription benefits.

Amendment One is posed to hurt a great many people, both financially and emotionally. It will roll back liberties enjoyed by North Carolinians of all backgrounds, hurting the state’s ability to truly say it cares for its citizens.

Is this really a “moral” victory?

 

**Corrections made to original post: references to how the Amendment will affect Domestic Violence protection were removed. The proposed Amendment should not affect the statutes on Domestic Violence, where protected relationships are specifically stated, as opposed to relying on individual interpretations of “domestic relationship”.

We apologize for the error.

North Carolina Courts Told Stop Violating Hispanic Defendants’ Rights!

North Carolina’s court system has been investigated by the United States Department of Justice’s Civil Rights division for failing to provide for the basic rights of non-English-speaking defendants in court.

The court system, or AOC, has some policies in place to provide for individuals with Limited English Proficiency (LEP), but the policies are illegally restrictive. The few policies that do support the rights of LEP individuals are rarely enforced. Among the illegally restrictive policies are the AOC’s refusal to provide interpreters for:

•             Foreclosure proceedings;
•             Divorces;
•             Child custody and child support hearings;
•             No-contact order hearings;
•             Small claims court, including wage disputes and evictions.

For those who classify as indigent and therefore are unable to provide their own Constitutionally guaranteed legal defense, interpreters may be considered part of the defense that the State provides in certain matters. Criminal, traffic, juvenile criminal, domestic violence proceedings, and post-judgment services hearings are types of matters where an indigent defendant may have a State provided interpreter.

In an effort to be more inclusive, the Courts are not just discriminating against the Hispanic community. LEP individuals whose first language is Chinese (Cantonese and Mandarin, primarily) or an Arabic language are also being denied interpreters.

Even in cases where an interpreter is provided, the AOC may not have provided one in a fair manner. The Department of Justice’s investigation found instances when a criminal defendant’s interpreter was a member of the District Attorney’s staff, creating a conflict of interest that the court system ignored.

The court system has acknowledged that there is room for improvement. The reason they have not done more to provide services for LEP individuals is the cost. The Department of Justice’s report acknowledges that cost can be an issue; however the projected cost of $1.4 million is only .3% of the AOC’s overall budget.

When the court system blames the problem on cost, there is a point that is missed. $1.4 million seems like a lot of money, until the entire budget is viewed. The AOC has a $463.8 million budget, consisting largely of state and federal grants. Grants that can be revoked when the AOC is in violation of federal civil rights laws, as it is currently.

The biggest mistake the AOC is making is forgetting why it exists. Providing everyone with their Constitutionally guaranteed right to a fair trial, the right to competent representation, and equal protection under the law, is what the court system is for. Failing to provide interpreter services to LEP individuals is a failure to provide access to the courts and a fair trial.

The Department of Justice has granted the AOC until March 29, 2012, to create and begin implementing a plan to correct the current discriminatory system. Whether the AOC is able to fix the problem itself, or whether the Department of Justice must intervene, the outcome should be a more fair and accessible court system, regardless of a person’s fluency in English.

Ask a Lawyer: Not Ready For My Close-up!

Question: Do people have the right to A. take pictures without my knowing B. to post them on social media sites and C. to bully/make fun of me?

Answer: This is a difficult and, as you know, sensitive issue. The increasing use of social media tools is making it easier to capture forever moments that many of us would prefer to forget. Technology has also made it easier for these images to be edited, completely changed, shared, and used by those who would torment others. In a word, bullies.

A) We live in a free society, so people can take pictures of you while you are in public. They obviously cannot take hidden pictures of you in lured or private moments as you have a legitimate expectation of privacy, however in public places it is OK.

B) There is no law which prevent people from posting pictures without consent. If a business is using you image for profit, there are some protections, but simply posting a picture… again, we live in a free society. The Social Media Site may regulate the issue privately, and that site may allow you to complain and they will take the pictures off. But that is a private matter determined by their own policy.

C) North Carolina does have very specific criminal statutes which make bullying a crime. Specifically § 115C‑407.15 deals with Bullying and harassing behavior, and § 14-458.1 deals with Cyber-bullying. Both of these statutes are geared at protecting minors, and generally do not apply to adults who claim to be victims of bullying.

If you are an adult, you need to develop thick skin and learn to deal with people who behave this way because unfortunately they don’t seem to be going anywhere. However, if you are a minor (while you still need to learn to deal with the problem), you can report the problem and ask the School Resource Officer to investigate. This is not intended to make light of the problem by saying you need to develop thick skin, but the Law can only get involved in prosecuting crimes after they have happened. Thus even if the case is prosecuted, you will still have to deal with the fall out.

Bullying, whether in person or cyber-bullying, is a serious issue. There can be fallout, as you are aware, and the emotional toll can be devastating. If you are being bullied, you should seek counselling to deal with the obvious pain it must be causing you.

Ask A Lawyer: Is It Breaking and Entering if He’s My Boyfriend?

My boyfriend came over to my house a few nights ago. I was upstairs and couldn’t hear him, but he came in and my parents were mad so they called the police. They said he broke in. He had been to our house before, he used to come over a lot until my daddy told him not to show his face here again, but then daddy still let me go out with my boyfriend. He must have been coming to see if I wanted to go out, but I didn’t hear him and now he’s been arrested and he’s going to court.

This is going to be a difficult case. Without knowing your age, we can’t determine whether your consent, or your invitation, is enough to reinstate consent after your dad told him to stay away. Knowing that your dad still let you see your boyfriend might give us enough to fight the charge- if dad banned the boyfriend from the house to protect you, letting you go out with the guy doesn’t fit.

You need to have your boyfriend talk to a lawyer. Situations like this are very tricky, and very emotional on all sides. He needs to have a legal professional walk through all the details of that night to see exactly what happened and how it may have been perceived.

When he meets with a lawyer, they will discuss a few things. Your age, in order to determine whether your consent for him to enter the house is enough; the circumstances of him entering the house- was the front door unlocked, or did he have to open a back window?- that night; whether your parents could expect their “stay away” rule to mean anything when you were still allowed to go out with the boyfriend; all of these things will be discussed. The lawyer will probably also want to know about your relationship with your boyfriend, his relationship with your parents, and the details surrounding your parents banning him from the house and details of the night in question.

Have your boyfriend contact a competent, experienced criminal defense lawyer. The sooner he discusses his options, the better his chance of having a strong case to fight this charge.