Commonly-asked NC legal questions
Absolute divorce is the termination or legal dissolution of a marriage.
To obtain an absolute divorce, North Carolina requires that you and/or your spouse live in North Carolina for at least six months before filing the action for divorce. You or your lawyer must file the divorce complaint with the clerk of court in the county of your residence. That complaint must be delivered to your spouse, either by the county sheriff or by certified mail. After waiting a specified period, typically 40 days after service of the complaint, either you or your attorney can appear in court and obtain a divorce. The divorce is final once the judge signs the judgment, and you may remarry if you wish.
An action for divorce can be brought by either spouse, once you and your spouse have lived separate and apart for at least 12 consecutive months. You can obtain a divorce in North Carolina whether or not your spouse wants to be divorced. Additionally, North Carolina is a “No-Fault” divorce jurisdiction, and as such, neither party has to prove marital fault in order to obtain a divorce after a one-year separation.
Absolute divorce is just that, the termination of the marriage. You can obtain a divorce without resolving any of the other issues arising from your separation, such as custody, spousal and child support, and the distribution of your property and assets. However, be aware that North Carolina law requires that you file for things like alimony equitable distribution before the divorce decree has been entered.
Divorce comes with a number of life-changing challenges, and if you are considering divorce it is best to consult with a professional you can trust. You, your family, your home, your finances; these are all impacted when divorce happens. If you are contemplating a divorce, and want to be sure that you protect the life you’ve built, call me and the law firm of SeiferFlatow today at 704-512-0606 to set up a consultation.
North Carolina requires that prior to divorce, spouses live separate and apart for a period of 12 months. The couples must actually live separate and apart; it is insufficient to live in separate parts of the house or separate bedrooms. Even couples living in separate households who maintain the appearance of being married do not meet the separation requirement. Examples of maintaining the appearance of being married include appearances in public places, shared meals, shared travel, access to one another’s living spaces, as well as other factors.
If the spouses reconcile during the period of separation, the one year separation period must restart and begin anew. Reconciliation is the resumption of marital relations. It restarts the separation period, voids a separation agreement, and determines the date at which marital assets will be valued. Evidence that the parties held themselves out as married to the general public, even without sexual relations can support a claim for reconciliation in North Carolina. On the contrary, isolated incidents of sexual relations alone are not enough to support a claim of reconciliation in this State.
The process of divorce begins with separation and comes with a number of life-changing challenges. If you are considering separation or divorce, it is best to consult with a professional you can trust.
First and foremost, a claim for equitable distribution (ED) can be filed at any time during the period of separation, but it must be filed before the divorce decree is entered.
North Carolina follows the ED method of distributing property and assets following a divorce. In an action for ED, the Court must first classify property as either marital or separate property as defined by statute. Next, the Court must divide the marital property equally, unless it determines that an equal distribution is not equitable. Separate property, on the other hand is not subject to ED.
Courts consider several factors when deciding the distribution of property during a divorce including
- The income, property, and liabilities of each party at the time the property division will be effective;
- The duration of the marriage the age and physical and mental health of the parties;
- The need of the custodial parent to occupy or own the marital home;
- The expectation of pension, retirement, or other deferred compensation rights that are separate property;
- Contributions to increases in marital property, homemaking and child-rearing;
- Contributions that one spouse made to the education or development of career potential to the other spouse;
- The acts of either party to maintain or neglect the marital or divisible property during separation;
- As well as a number of other factors.
Marital misconduct that does not involve the economic value of the marriage is not considered in regard to equitable distribution. However, something that relates to the economics of the marriage, such as spending money on a paramour, can be considered.
Equitable distribution can be complex. If you are considering separation or divorce, it is best to consult with a professional you can trust. You’ve worked hard to earn the life you’ve built and to secure the future you’ve planned. Call me and the law firm of SeiferFlatow today at 704-512-0606 to set up a consultation to learn how divorce effects your assets. Trust the attorneys at SeiferFlatow to help protect your assets and see you through this difficult time.
Child Custody involves two main categories: Legal Custody and Physical Custody. Legal Custody gives one or both parents the right to make legal decisions for the child. These decisions involve education, health care, religion, and the child’s general welfare. Physical Custody relates to where the child resides.
Either or both of these types of custody can be shared under a joint custody arrangement. Typically, under a joint legal custody arrangement, neither parent has a superior right to make major decisions. Instead, joint custody arrangements typically outline a procedure for resolving conflicts.
Joint physical custody does not necessarily require a 50-50 time split between the parents. Joint custody entails any situation where the child maintains a residence at the home of each parent and spends a significant amount of time with each parent.
Your kids’ well-being during the divorce process is likely atop the list of your concerns. A number of factors come into play when it comes to child custody. If you are considering separation or divorce, it is best to consult with a professional you can trust. You’ve worked hard build a happy life for your children. If you have questions about child custody call me and the law firm of SeiferFlatow today at 704-512-0606 to set up a consultation.
The standard for determining Child Custody in North Carolina is the “best interests of the child.” Though in the past, some states including North Carolina provided that custody of children of “tender years” had to be awarded to the mother, no such presumption exists any longer. Instead, the courts consider custody without regard to the gender of the parent, and consider a number of factors to determine the best interests of the child.
These factors include:
- The child’s age, gender, mental health, and physical health;
- The mental and physical health of the parents;
- The lifestyle of the parents;
- The love and emotional ties between the parent and child;
- The parent’s ability to provide for the child (i.e., food, shelter, clothing, medical care);
- The child’s established living pattern considering things like school, home, and community and religious activities.
- The quality of the schools attended by the children;
- The child’s preferences if any, if the child has the requisite maturity to articulate a reasoned opinion;
- The ability and willingness of the parent to foster healthy communication and contact between the child and the other parent.
The best interests of your children is likely atop the list of your concerns. If you are considering separation or divorce, it is best to consult with a professional you can trust.
Let’s discuss marital property versus separate property in terms of equitable distribution, or ED, in North Carolina.
First and foremost, remember, a claim for ED can be filed at any time during the period of separation, but it must be filed before the divorce decree is entered. ED places property into two categories for division: marital property and separate property.
“Marital property” is all real and personal property acquired by either spouse or both spouses during the course of the marriage and before the date of separation of the parties. “Separate property” means all real and personal property acquired by a spouse before marriage or acquired by a spouse by bequest, devise, descent or gift during the course of the marriage. Property acquired in exchange for separate property is separate property, as is income from separate property and passive increases in the value of separate property.
The word “acquired” is where the marital versus separate property equation gets tricky. Our courts in North Carolina use the source of funds analysis to determine acquisition, and view acquisition as an ongoing process.
Also important is the notion of active versus passive appreciation. Passive appreciation means appreciation due to something like inflation, and is considered separate property and therefore not subject to ED. Active appreciation however, is subject to ED and considers the appreciation due to funds, talent, or labor exerted during the marriage to enhance the value of the otherwise separate property.
Equitable distribution can be complex. If you are considering separation or divorce, it is best to consult with a professional you can trust. You’ve worked hard to earn the life you’ve built and to secure the future you’ve planned. Call me and the law firm of SeiferFlatow today at 704-512-0606 to set up a consultation to learn how divorce effects your assets.
North Carolina has adopted guidelines to streamline the process of determining child support. The award of child support usually depends on income. This income can be from any source and includes wages, interests and dividends, rental income, retirement benefits, capital gains and Social Security income. These guidelines are applied regardless of marital status.
Child support must be enough to meet the child’s needs for health, education, and maintenance. Child support takes into consideration the family’s estates, earnings, conditions, accustomed standard of living, childcare and homemaking conditions, and other facts.
Child support in North Carolina is based on an income-shares model which operates on the theory that a child should receive the same proportion of parental income as if the parties continued to live together.
There is a rebuttable presumption that the amount of child support calculated pursuant to the guidelines is correct. Deviations may be permitted as circumstances warrant. Some factors that the courts consider in determining support include:
- The child’s reasonable needs to health, education and maintenance;
- The parties’ estates, earnings and conditions;
- The childcare and homemaker contributions of each party;
- The assets of the parties;
- The standard of living;
- As well as other facts of the case.
Your children’s well-being and your ability to care for their needs is of paramount importance. If you have questions about child support call me and the law firm of SeiferFlatow today at 704-512-0606 to set up a consultation. Trust the attorneys at SeiferFlatow to help you achieve your family needs.
North Carolina allows an award of child support to be modified or vacated at any time. Modifying child support is permissible when there is a substantial change in circumstances regarding the child’s needs or the parents’ financial situations. The burden to substantiate the change in circumstance in circumstances is on the parent requesting the modification.
The fact that the child is older or that inflation has occurred is insufficient to support an upward modification of child support. On the other hand reduction in income or reduction in the needs of the child may be used to show a substantial change of circumstances. Further, under certain circumstances, a presumption for modification may exist for a substantial change of circumstances justifying a child support modification.
If your spouse has voluntarily quit a job to avoid his or her child support burden, this alone is not enough to automatically reduce child support. Factors that would be considered include the earning potential of the obligor spouse, which means the realistic expected income under the circumstances in consideration of the obligor’s age, mental health, and physical condition.
Your children’s well-being and your ability to care for their needs is important. If you have questions about child support call me and the law firm of SeiferFlatow today at 704-512-0606 to set up a consultation.
Custody decrees are always modifiable upon a showing of “changed circumstances.” The moving party must also show that the change would be in the best interests of the child. Relocation, remarriage, or increase or decrease in the incomes of the parents, alone, will not suffice for modification of custody, unless the moving party can demonstrate a substantial change affecting the welfare of the child.
In a situation where the custodial parent is proposing relocation and that relocation will significantly impair the non-custodial parent’s ability to see the child under the court ordered visitation schedule, this will likely constitute a substantial change in circumstances warranting a modification.
Prior to discussing the modification, if any, the court must provide the custodial parent with permission to relocate. When it comes to relocating a child to another jurisdiction, North Carolina places the predominant weight on the best interests of the child. In determining whether a move is in the best interest of the child, the court may consider:
- The capacity of the move to improve the child’s life;
- The custodial parent’s motives;
- The likelihood that the custodial parent will comply with visitation orders after he or she is no longer subject to the jurisdiction of North Carolina courts;
- The non-custodial parent’s integrity in resisting the relocation;
- The likelihood that a realistic visitation schedule can be arranged that will foster the parental relationship with the noncustodial parent.
The burden of proof is placed on the parent objecting to the relocation to demonstrate that the move will not serve the child’s best interests or that the move would also cause harm to the child.
Your kid’s well-being and your ability to care for their needs is important. If you have questions about child support call me and the law firm of SeiferFlatow today at 704-512-0606 to set up a consultation.
Post separation support means spousal support payable until the earliest of:
- The date specified in the order for post separation support;
- The entry of an order awarding or denying alimony;
- The dismissal of the alimony claim;
- The entry of the judgment of absolute divorce;
- Or the termination of post-separation support due to cohabitation, remarriage, or death of either spouse.
If there is a claim for alimony pending, post-separation support may be ordered in an action for divorce. To be entitled to post-separation support, a spouse must prove: (1) that the spouse is dependent and the other is supporting; (2) that the spouse’s resources are inadequate; and (3) that an award is equitable after considering all factors, including marital misconduct.
Post-separation support may be awarded with or without any evidence of marital misconduct by the supporting spouse. However, if the supporting spouse offers evidence of misconduct by the dependent spouse, the court must consider it. Marital misconduct must occur prior to or on the date of separation to affect post-separation support. A determination of post-separation support and its amount remains in the discretion of the judge regardless of the findings on misconduct. This is not so for alimony.
Alimony is payment for the support and maintenance of a spouse. It can be in a lump sum or on a continuing basis. A spouse is entitled to alimony upon showing that (i) the spouse is dependent and the other is supporting; and (ii) an award is equitable upon the court’s consideration of all relevant factors.
Some factors that are considered include: (1) marital misconduct; (2) the spouses’ relative earnings and earning capacities; (3) their ages and physical, mental and emotional conditions; (4) their sources and amount of income; (5) the duration fo the marriage; (6) the contribution by one spouse to the earning power of the other spouse; (7) the effect of serving as a custodian of a minor child; (8) the standard of living enjoyed during the marriage; (9) the relative education of the dependent spouse and that spouse’s need for training to find suitable employment; (10) the parties’ assets, liabilities; (11) the property brought to the marriage; (12) the parties’ contributions as homemakers; (13) each party’s relative needs; (14) Tax considerations; (15) Other economic factors; and (16) the fact that income was previously considered in valuing an asset in equitable distribution.
If the court finds that the dependent spouse has committed a pre-separation act of illicit sexual behavior, the court may not award alimony. If the court finds that only the supporting spouse has committed a pre-separation act of illicit sexual behavior, the court must award alimony to the dependent spouse. If the court finds both spouses have committed pre-separation acts of illicit sexual behavior, the court may use its discretion to award or deny alimony.
Other bars to alimony include condonation as well as express provisions in premarital or separation agreements.
You’ve worked hard to earn the life you’ve built and to secure the future you’ve planned. If you are considering separation or divorce, it is best to discuss issues like post-separation support and alimony with a professional you can trust.
Collaborative law allows spouses who are seeking a divorce to make a good faith attempt to resolve disputes arising from the marriage by agreement and without having to resort to judicial intervention. Collaborative law agreements must be in writing, signed by the parties and their attorneys, and must contain a provision for the withdrawal of the attorneys if the collaborative process does not result in a settlement. This means when things go wrong, the attorneys who have been working to assist the parties resolve their disputes must no longer work on the case, and both parties must seek new representation and begin the divorce litigation process essentially anew.
When the collaborative process breaks down, you may feel like you are forfeiting the work, time, and expense you have invested in the collaborative process. You may feel also like the collaborative process in a state of limbo, which can lead to confusion, uncertainty, and prolonged discussions that seem to not solve any of the problems that you deem important. Don’t let the frustration and anger you may feel prevent you from protecting your rights in a divorce. The collaborative process is not necessarily for everyone. If it works, it works. If it does not, you want a strong litigator and advocate in your corner.
You should know that if you have been involved in a collaborative divorce, a validly executed collaborative divorce agreement tolls all statutes of limitations while it is in effect; furthermore, all statements, communications and work product generated during a collaborative divorce are not admissible under North Carolina Law.
If you have laid it all out there and given it your best shot to find an amicable and easy settlement to your divorce but it is just not working out, you may consider terminating the collaborative process. When the collaborative law approach falls short of meeting your needs and expectations, you should seek the counsel of an attorney who can properly litigate any claims you may have in your pending divorce and protect the life you have built.
You, your family, your home, your finances; these are all impacted when divorce happens. If your collaborative divorce process has failed to satisfy your needs and you are ready to fight for your rights, call me and the law firm of SeiferFlatow today at 704-512-0606 to set up a consultation.
Although North Carolina prohibits same-sex marriage by statute, this prohibition has been found to violate the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the United States Constitution. Thanks to a Federal Court Case in the Fourth Circuit, as of October 10, 2014, same-sex couples may marry in North Carolina. In addition the state must recognize same-sex marriages that have been validly entered into in another jurisdiction.
If you are in a same-sex relationship and considering divorce, it is important to seek counsel with a Family Law attorney you can trust.
The same rights apply when considering divorce. If you were married in another state, and now live in North Carolina, you need to meet North Carolina’s minimum requirements for divorce. At least one of you must have resided in North Carolina for at least six months, you must have been separated and living apart for at least one year, and at the time you separated at least one of you must have intended the separation to be permanent.
You may have acquired assets and debts during the course of your marriage. Any assets and debts you and your same-sex spouse acquired during the marriage will likely be considered marital property and there is a presumption that that marital assets and debts should be divided equally in a divorce. This presumption can be overcome when certain factors are present and you should consult an attorney to discuss your specific set of circumstances.
Similarly, if children are involved, issues concerning custody and child support need to be considered. Finally, if you were a dependent or supporting spouse, issues concerning post-separation support and alimony may be relevant to your case.
Same-sex marriage is treated equally in North Carolina. You, your family, your home, your finances; these are all issues that are related to any marriage, and are issues that are impacted when divorce happens. If are in a same-sex marriage and would like to learn more about your rights, call me and the law firm of SeiferFlatow today at 704-512-0606 to set up a consultation. Same sex marriage is about equality. You have equal rights to protect the life you have built. Trust the attorneys at SeiferFlatow to help deliver you safely through this difficult time.
Personal injury lawyers are paid a percentage of the recovery they obtain for you. It may appear at first glance that you can maximize your recovery by handling your claim on your own without having to pay a lawyer. Hiring a lawyer will usually increase the compensation you receive. Insurance companies are in business to make money. If they can minimize payouts to auto accident victims, then they make more money. Insurance adjusters are trained to limit payouts through various strategies such as denying claims altogether, settling claims shortly after the accident and before the client has the time to hire a lawyer or discover the full extent of their injuries, blaming pre-existing conditions for injuries sustained in the accident, limiting settlement offers based on low impact or low physical damage to the vehicles, or limiting settlement offers based on time gaps for medical treatment. Once they have denied your case or made you a final lowball offer, your only option at that point is to sue their insured, which they know will be expensive, stressful, and time consuming. If you’ve actually accepted a lowball offer but then realized it was too low and want to undo it, there is absolutely nothing an attorney can do to fix it. Your case is over. Besides maximizing the amount of the settlement, an experienced attorney can also help get reductions for outstanding medical bills, also saving you money.
Most personal injury attorneys will be compensated for their services by a contingency fee. The fee is contingent upon the recovery amount. They will take a percentage of the recovery at the end of the case. This amount is usually one-third but sometimes it is more if a lawsuit has to be filed. Most personal injury settlements are not negotiated nor paid until well after all medical treatment is finished. Therefore, to ensure that you have proper access to legal representation without having to spend money you may not have, the attorney takes his fee at the end of the case. If the attorney doesn’t recover anything for you, then the attorney doesn’t receive a fee. This fee structure is a major benefit to the client for several reasons. The client never has to pay any money to the lawyer directly and come out of pocket. The settlement takes care of the expenses and the legal fee. Plus the incentives of the lawyer and client are in sync. The more compensation the attorney gets the client, the more he gets paid. he has every incentive to maximize recovery for his client. The contingency fee fosters open communication between attorney and client because it is solely based on how good of a result the lawyer gets for the client.
If you are injured in a motor vehicle accident that was caused by somebody else’s negligence, you may be entitled to monetary compensation. The components of the settlement include payment for past medical bills, future medical treatment if there’s medical evidence to substantiate it, past and future lost wages if a doctor has written you out of work and your employer substantiates the loss, and past and future pain and suffering. A personal injury settlement can take weeks, months or even years to be finalized, depending on various circumstances such as the severity of the injuries, length of time for treatment etc. It is the at-fault driver’s insurance company’s job to minimize your damages and the compensation they pay you in order to save themselves money. They have many different strategies to achieve this goal. They argue that you couldn’t have been injured because your vehicle did not sustain much damage. They also look for time gaps in medical treatment. They say “if you were really injured, why did you wait a month to seek follow up treatment?” They will also try to blame your physical complaints or symptoms after the accident on pre-existing medical conditions, even if those conditions resolved years ago and you were symptom free at the time of the accident. These are just a few of the tricks insurance companies use to limit your recovery.
In motor vehicle accident claims in North Carolina, the at-fault driver, usually through their auto insurance, is responsible for compensating you for your medical bills, among other things. The way it works is that you finish treating and then all the bills and records are sent in one big package to the insurance company for them to review, make an offer, and negotiate a settlement. This process can take weeks, if not months, depending on the severity of the injuries and how long it takes the insurance adjuster to review the file and make an offer. There are medical providers who will delay payment for their services until the end of the case if they know that a reputable attorney is involved in the case and will ensure that they are paid out of the settlement. If you try to tackle this alone, the medical providers rarely will give you this courtesy because it means taking on the risk of not getting paid for services rendered. Secondly, there are certain types of auto insurance coverage addons that you may have purchased which will help pay medical bills. One such example is called Medpay, which will pay your medical expenses up to the limit that you have purchased.
In North Carolina, the law requires drivers to carry minimum levels of auto insurance to ensure that if they cause an accident and someone else is hurt, that the injured party will receive compensation for their injuries. In North Carolina, the minimum limits that you have to carry is $30,000. Despite these laws, there are many uninsured drivers on our streets. One of the addons you can purchase to protect yourself in the event you are involved in a collision with an uninsured motorist when you buy auto insurance is called uninsured motorist coverage. Uninsured coverage compensates you for injuries caused by an uninsured driver so you don’t have to attempt to recover directly from that driver and worry about whether he has sufficient money or assets to pay your damages.
In North Carolina, we are one of about five states that has a law called contributory negligence. In order for you to be legally entitled to any compensation for your injuries, you have to be completely free from fault, even if the other party is mostly responsible for the accident. For example, the other party’s insurance company will say that even though their insured ran the red light, you had several seconds before the impact to swerve into the adjacent lane, which would have prevented the accident. Because you noticed the other vehicle about 4-5 seconds before the crash and you didn’t take any evasive action to avoid the accident, the other party’s insurance company will deny your claim because they have found you partially at fault for the accident. Even though their driver was definitely negligent, in North Carolina, you would not receive any compensation. The insurance companies use this strategy to avoid paying claims.
Insurance companies and large corporations can afford to pay attorneys hefty hourly rates to defend them on workers compensation cases. However, most injured workers do not have this luxury. This is why Workers Compensation Attorneys charge a contingency fee that pays a fee of 25% of the benefits and/or settlement your recover. This does not cost you anything up front and the attorney only gets paid if you recover. This allows the injured worker to receive excellent legal services and for the law firm to be compensated for their work.
North Carolina has a Retaliatory Employment Discrimination Act (REDA) that specifically prevents employers from firing an employee because they have filed a workers compensation claim. If you have been fired after filing a claim, you may file a complaint with the Department of Labor. The best practice may be to talk about your situation with an attorney who has experience in both workers’ compensation and employment law so they can advise you on the best way to go forward in both cases.
Some employers can be over-eager in getting injured workers back to work. Going back to work and doing a job that is outside of your medical restrictions can have grave and long term consequences to both your physical health and job security. Typically, it is recommended that your doctor approve the job you are going back to in order to make sure it is safe. Also, if you feel your employer is not abiding by the restrictions, it may be best to talk to an attorney to protect your rights.
A disability rating is a doctor’s broad judgment on the percentage of loss to your injured body part. For example, if you have an arm injury, the doctor may give you a 10% rating to your arm which means that the doctor believes your arm is only 90% from where it was pre-injury. The North Carolina Industrial Commission has provided a Ratings Guide to define the percentage of loss to a body part post injury. The rating is put into a formula to define the amount of compensation your injured body part is worth. It is best to have an experienced North Carolina Workers’ Compensation Attorney help you calculate the value of your rating and, if appropriate, get a second doctor to provide an opinion on your rating which may increase the value of your case.
Generally speaking, an injured worker should be provided all medical care needed to provide relief from pain and effectuate a cure to the condition. In addition, should the injured worker miss time from work, they should be paid two-thirds of their gross wages as compensation. Finally, at the end of the case, the injured worker may be entitled to a settlement which should factor in their future needs and/or their disability rating.
Claiming your statutory right for benefits is not the same as suing your employer. If you get hurt at work, you are entitled to certain benefits. Filing a claim for workers compensation is not the same as suing your employer in civil court. Most companies have insurance companies that manage these claims and provide benefits. If there is a dispute in your case, it will be resolved by the North Carolina Industrial Commission, not in the court system.
The North Carolina Workers’ Compensation Act is large and complex. Just because the insurance company is providing some benefits, it does not necessarily mean they are providing all benefits. For example, you may be entitled to reimbursement for travel, higher weekly wages and/or additional medical treatment. By getting an attorney early in the process, you will be able to maximize the benefits you are receiving while the insurance company is paying your benefits. An attorney can also help you maximize the settlement value of your claim at the end of the process.
Generally speaking, if you had an accident at work that led to an injury, you qualify for workers compensation in North Carolina. Typically, an accident involves a slip, trip, fall or other untoward event. However, simply being able to describe a specific traumatic event may be sufficient if the injury is to your back. Also, if you suffer from a disease related to your work environment, you may qualify for workers compensation. The law is complex and every situation deserves to be analyzed on its own merits.
I AM OUT OF WORK AND MONEY IS TIGHT, HOW DO I PAY FOR AN ATTORNEY?
Most North Carolina counties including here in Mecklenburg County, will not reduce a DWI at all to a lesser charge. The only time there is ever any negotiating when it comes to a DWI is when you receive other charges in addition to the DWI. Because the state wants the conviction for the Driving While Impaired charge, it will gladly dismiss the remaining charges in exchange for a guilty plea to the DWI. Other than that, you are either pleading not guilty and going to trial to try to prove your innocence or you are pleading guilty to Driving While Impaired. A DWI in North Carolina is pretty much an all or nothing charge. There is no compromise, no in between.
When you’ve been charged with driving while impaired or DWI, the officer will ask you to submit a sample of your breath or, in certain circumstances, he may take you to the hospital to draw your blood. The breath or blood sample is analyzed for alcohol concentration. If the sample comes back at a .15 or higher, which is nearly twice the legal limit of .08, AND you are convicted of the offense, then you will be required to install an ignition interlock device in your vehicle for at least a one year period. This is also often required for repeat offenders regardless of the alcohol concentration. This device requires you to blow into it to start your car. Besides being a major inconvenience, it also costs a lot of money for installation and for monthly usage fees, it has to regularly be maintained, and it often malfunctions. If you are in fact required to install the interlock device, then you will be unable to obtain a limited driving privilege or get your driving privileges reinstated without proof of installation. If it is required, there is no way around it. You cant simply wait it out and hope that years down the road DMV wont require it.
In North Carolina, there are 6 levels for sentencing upon conviction. There’s Levels 1-5 and Level 1a, which is the most severe. 5 is the least severe level. Sentencing is based on the presence of grossly aggravating factors, aggravating factors, and mitigating factors. Grossly aggravating factors are really bad facts such as having a minor child in the car with you, having a prior conviction for DWI within a certain time period, causing an accident involving personal injury etc. If there are 3 or more of these, then the person is automatically a level 1a. If there are exactly 2 present, then it’s a level 1 and if theres only 1 of these facts present, youre a level 2. All of these include mandatory jail time and fines. The amount of jail time and fine simply depends on which level you are. If you don’t have any of the grossly aggravating factors present then you would be either a level 3, 4 or 5. The level is determined by weighing aggravating factors (not grossly aggravating as discussed before) against mitigating factors. Aggravating factors are bad facts but not quite as bad as the grossly aggravating factors. These could include a bad overall driving record or a really high breath or blood test result of alcohol concentration. Mitigating factors are good factors like a safe driving record or the fact that you obtained a substance abuse assessment prior to conviction. If the aggravating factors outweigh the mitigating, youre a level 3. If theyre equal, level 4 and if there are more mitigators present than aggravators, then youre a level 5. All of these 3 levels include fines, community service and drug and alcohol classes. The amount of fine and community service is simply dictated by the level, but either way, you shouldn’t be looking at active jail time except in rare instances.
There are two main situations in DWI cases which involve limited driving privileges. The first one is when DMV revokes your North Carolina privileges automatically during the initial 30 day period immediately after being charged with a DWI. On day 11, you can get a limited driving privilege to drive to and from work, for maintenance of your household and for a few other reasons. In order to be eligible for this privilege, you will first need to obtain an alcohol abuse assessment from a licensed location. You do not have to actually do any of the recommended treatment, just get the assessment. If you have the need to drive outside normal working hours, you will have to get a letter from your employer stating what hours you need to work. It is entirely within the judges discretion whether to grant the privilege. There are also some other eligibility requirements for this privilege. For example, your license cant be suspended for a different reason besides the DWI and you cant have any other pending, unresolved drinking and driving matters. The other situation involving limited driving privileges in DWI cases is upon conviction. If you are convicted of the DWI and are a first time offender, then you may be eligible for a privilege during the one year revocation period that is similar to the 30 day privilege. The only additional requirement is that you have to get a form completed by your insurance company that proves that you have liability auto insurance.
In North Carolina, if you are arrested on suspicion of DWI and you blew over the legal limit or willfully refused to provide a breath sample, North Carolina law requires an automatic suspension of your North Carolina driving privileges for a 30 day period. The officer takes your license and at the end of the 30 days, you pay a fine and get your driver’s license back. If you are licensed in another state, your driving privileges in North Carolina are still revoked for the 30 days. Most likely, your actual license and driving privileges in your original state will remain valid. When the officer charges you with the offense, he is not technically supposed to physically take your out of state license, but they often do in fact take it for the 30 days, just like a North Carolina license. If you are actually licensed by North Carolina at the time of the DWI offense, then your actual license and full driving privileges are revoked, meaning you cant legally drive in ANY state for this 30 day period.
The state has the right to develop its case and its evidence against you. Likewise, you have the right to develop your defense and collect evidence that might help prove your innocence. This includes the right to be around family and friends at a relevant time after the driving so they can observe your behavior, smell your breath and listen to you talk and the right to go to a hospital to obtain a chemical analysis of alcohol concentration of your blood. Because alcohol leaves the body over time, our courts have said that if there is a lengthy delay at the jail that is not your fault and that delay causes your ability to defend against the charges to be prejudiced, then you may be entitled to a complete dismissal of your case. This is called a Knoll motion to dismiss, based on a case titled State of North Carolina vs. Knoll.
When the officer requests that you provide a sample, you have the right to refuse to provide a breath sample. However, if you refuse, your license will be suspended for a period of 1 year solely on account of the refusal and regardless of the outcome of your actual case. The reason that DMV can suspend your license for refusing to blow is because our courts have said that driving is a privilege not a right. By driving on public streets, you have in essence given your consent to be chemically tested upon suspicion of DWI. You have the right to refuse, but DMV is allowed to penalize you by suspending your driving privileges. If you refuse, the officer may then transport you to the hospital and obtain a search warrant to draw your blood to get a blood alcohol concentration reading. If the officer does not draw blood, then the State will be limited in its ability to directly prove that you were impaired while driving. If the officer marks you as a refusal, you will be notified by DMV that your driving privileges are going to be suspended for a year for refusing a chemical test. However, you can request a hearing to challenge the grounds of the willful refusal and as long as you request the hearing before the suspension begins, the suspension will not commence until you have had your hearing with DMV.
When an officer suspects that you have been driving while impaired, he has to develop his case before he can arrest you. He must have probable cause to arrest. This means that there have to be specific facts that, when taken as a whole, indicate that you most likely have committed the offense. This standard is not as high as beyond a reasonable doubt which is the standard used to actually convict someone, but the officer still has to show that the arrest itself was based on specific facts that support his theory of driving while impaired. The officer’s investigation consists of a few stages. The first stage is the officer’s observations of your driving. He will observe your driving and determine whether certain indicators of impairment are present such as problems with lane usage or problems with judgment. After he has pulled you over, the next phase consists of face to face observations through his interaction with you such as the odor of alcohol, slurred speech, problems with producing various documents etc. He then will most likely ask you several followup questions such as whether you had anything to drink and how long ago. The final phase of his investigation consists of you exiting the vehicle to perform various field sobriety tests and to submit a breath sample in his handheld device. The roadside breath sample result can ONLY be used to indicate the presence of alcohol as the possible impairing substance. The actual number of the result is inadmissible in Court to prove a specific alcohol concentration or impairment level. All of the officer’s observations taken as a whole may or may not give rise to probable cause to arrest you.
When an officer suspects that you have been driving while impaired, he has to develop his case before he can actually arrest you. He must have probable cause to arrest. This means that there have to be specific facts that, when taken as a whole, indicate that you most likely committed the offense. This standard is not as high as beyond a reasonable doubt which is the standard used to actually convict someone, but the officer still has to show that the arrest itself was based on specific facts that support his theory of driving while impaired. When he has you perform the roadside tests, which are certainly designed for you to fail, he is essentially using the results of those tests to justify the arrest. Keep in mind, the officer normally makes up his mind to arrest within the first few minutes of making contact with you. All he is doing by investigating further is giving himself a way to justify your arrest in a court of law. So, in a nutshell, even if you do cooperate with the officer, he will still arrest you for, quote unquote, poor performance on his tests. On the other hand, if you politely refuse to perform the tests, the officer will not want to cut you any breaks and will arrest you for being intoxicated and uncooperative. However, it will be much easier for your lawyer to challenge the legal basis for the arrest if the officer isn’t able to testify about how poorly you supposedly did on the field tests. The simplest answer to this question is to refuse the tests to limit the amount of evidence the officer is able to develop against you.
The State has two ways it can prove that you committed the offense of Driving while impaired, or DWI. The first way is by showing that your physical and mental abilities were significantly impaired. The other way is by proving that you had an alcohol concentration that was over the legal limit. The way the state usually tries to prove the first method is through the officer’s testimony about his observations of you and your driving. The most common examples of this are that your driving was particularly bad, that he detected an odor of alcohol on your breath, you were unsteady on your feet, had slurred speech and performed poorly on standardized field sobriety tests etc. The other way the State proves a DWI is by putting forth evidence that you automatically meet the legal definition of impairment, which is an Alcohol Concentration of at least a .08 or higher. This is actually measured by taking a sample of your breath in a large desktop machine at the police station after the officer has arrested you for DWI or by taking you to the hospital for a blood draw.
In North Carolina, an officer cant just pull you over for no reason. He has to have reasonable suspicion, which is defined as specific facts that indicate that criminal activity is afoot. For example, if you were involved in a motor vehicle accident or you committed a minor traffic infraction such as speeding or failing to stop at a stop sign, the officer then has the right to pull you over and conduct a further brief investigation. This is how a lot of DWI cases begin. You commit a minor traffic violation and the officer pulls you over. He detects the odor of alcohol so he asks you some questions and your answers lead him to believe that you are impaired. He then has the legal authority to perform a DWI investigation. Certain behavior may or may not give rise to reasonable suspicion. For instance, our Courts have held that weaving within your own lane without crossing into another lane does not in and of itself give rise to reasonable suspicion to stop the vehicle and investigate. A successful legal challenge to the stop on reasonable suspicion grounds means that he didn’t have the legal right to stop your vehicle and therefore, he didn’t have the right to conduct a DWI investigation. The case is thus dismissed.
You may have several legal defenses of which you were unaware, besides whether or not you were actually driving while impaired. For example, did the officer have reasonable suspicion to pull you over or did he have probable cause to arrest you. Just because you believe or even know that, in hindsight, you were impaired doesn’t mean that the State, which has the burden of proof for every element of the crime, can meet that burden beyond a reasonable doubt. Furthermore, if you are convicted, a lawyer can help with the sentencing, which in North Carolina is very complex for a DWI. The difference between extra hundreds or thousands of dollars in fines, extra community service or even jail time often depends on whether certain factors are brought to the judge’s attention. Also, a first time offender is usually eligible for a limited driving privilege upon conviction. There is a lot of paperwork that is necessary and a lot of documents that need to be put together before the judge will even sign the privilege. It is often a daunting task to try to tackle this on your own. If nothing else, an attorney can help make a stressful situation less stressful by providing insight and answers to often difficult questions during a very difficult time.
Traffic Tickets / DMV Matters
When you miss your court date, the first thing that can happen is the Judge may issue an order for your arrest. If that happens, unless the order for arrest gets stricken, you will be arrested shortly thereafter and will be required to post a significant bond that will likely ensure that you do not miss any further court appearances. Then, your driving record will be marked as having failed to appear for the charge and your license and driving privileges will be suspended indefinitely until the case is over. This means that even if the case is added back onto an active court docket, your privileges will remain suspended the entire time until the case is finished. A significant failure to appear fee will also attach to the case and will need to be paid in addition to any court costs or fines. An attorney can often get the order for arrest, if there is one, rescinded and depending on the county, can also either get the actual failure to appear removed from the record or at least can get the court to strike the late fee.
Yes, it is true that in most instances and with most minor traffic violations, you can take a class and keep your insurance from going up. However, rarely is that the best course of action. When you take the class, a Prayer for judgment continued, or PJC, gets entered on your record automatically for the original charge. A PJC is basically a once every 3 years reprieve from driver license points or insurance increase points. For many traffic violations, an attorney can keep the violation from hitting your insurance and your driving record by getting the original charge reduced without burning your PJC. Also, you are only allowed 1 PJC for all the individuals on an insurance policy every 3 years. The officer may be able to see your driving history but he has no clue who is on your insurance policy with you and if any of them have already burned your PJC. Therefore, you could pay for and take a 4 hour class and still receive insurance increases because someone else on the policy used the PJC already.
A PJC stands for Prayer for Judgment Continued and is a North Carolina creation. They are rarely recognized in other states. Essentially, what happens is you plead guilty to the original offense and then ask the judge for leniency and to enter a PJC. If the judge does this, then it is not technically considered a conviction and there is no judgment entered against you meaning there is no punishment like jail time, a fine, community service, etc. You just pay the standard court cost. If you get a PJC for a moving violation, then you receive no DMV or driving record points nor any insurance increases. If the offense is one that normally carries a driver’s license suspension upon a conviction, your driving privileges would not be subject to revocation because a PJC is not a conviction. Most traffic violations, except for a DWI and passing a stopped school bus, are eligible for a PJC. Granting of a PJC is solely within the judge’s discretion. Usually, prior behavior or driving history and whether you appear to have learned from your mistake are the main things the judge considers. If your request is denied, then a full conviction is entered and you are sentenced accordingly. For DMV purposes, you are allowed 2 PJC every 5 years. That means if you get a 3
PJC in that time period, DMV will reject it, a conviction will be entered and you will get the DMV points for that third offense and any suspensions that normally would be associated with a conviction for that particular offense. For insurance purposes, you are allowed 1 PJC every three years per insurance policy. Anyone sharing a policy would collectively have one of these to burn every 3 years. A common misconception is that if you receive another ticket after obtaining a PJC, then the PJC for the previous charge will be reversed and a conviction will be entered for that charge. This simply is untrue. A PJC cannot be undone once it has been granted and entered on the case.
Paying off a speeding ticket is an admission of guilt. By paying it off, you are admitting that you committed the violation. This will result in a conviction on your driving record. North Carolina’s traffic laws are unique. Convictions for some minor offenses result not only in insurance premium increases but also in actual driving privilege suspensions of up to one year. Examples include convictions for speeding in excess of 15 miles per hour over certain speed limits, speeding in excess of 80 miles per hour in any speed limit, or 2 or more convictions for speeding between 55 mph and 80 mph, regardless of the speed limits, in a 12 month period. North Carolina DMV will even suspend your North Carolina license if the offense occurred in another state and you simply paid that ticket because you didn’t want to be inconvenienced by having to go back to that state and because paying it seemed like the easiest thing to do.
When you are charged with a crime and arrested in North Carolina, a judicial official, usually a magistrate, will determine the conditions for your pretrial release and may make you post a bond. A bond is not a punishment. It is not a fine. The whole purpose of a bond is to ensure that you will show up for your court dates. Sometimes, the magistrate will allow your release on a written promise to appear or they may set an unsecured bond, meaning you only have to pay the bond if you fail to appear in court. However, the magistrate may also set a secured bond, meaning the bond must be paid before you can be released from jail. Assuming you appear at all your court dates, then you are legally entitled to the return of your bond upon the conclusion of your case, win or lose. If you hired a bail bondsman to post the bond on your behalf and paid him a percentage of the bond to do so, usually 5-10% of the total amount of the bond, then you do not get anything back at the end of your case. The amount you paid to the bondsman is actually his fee for services in posting the full amount of the bond on your behalf. You only get your bond back if you or a family member or friend actually posted the entire bond.
If you have an outstanding warrant, the only way to avoid being arrested and having to defend against the charge is to have the warrant recalled. This process involves getting the district attorney to consent to a recall before it is served. This generally happens if you can convince the DA that there really wasn’t any legal basis for the warrant to have been taken out in the first place. If the warrant cannot be recalled, then your only option is to turn yourself in, post the bond that the magistrate sets, and defend against the charges. If you choose to ignore it, the warrant against you will remain active indefinitely. If you are involved in an accident, even if you are not at fault, and the officer investigating the accident runs your name in the system, you will be arrested on the warrant. Or if you are pulled over for even a minor traffic violation, you will then be arrested when that outstanding warrant shows up on the officer’s computer. A sheriff’s deputy could also simply show up at your door or at your place of employment at any time to serve the warrant and take you to jail.
Historically, the distinction between the two types of criminal offenses was based on the amount of jail time that the statute authorized as punishment. If the authorized jail time was greater than a year, then the crime was classified as a felony. A year or under, it was a misdemeanor. Keep in mind the distinction is not based on actual jail time but on the amount the judge was authorized to give. Depending on the circumstances of the crime and on prior convictions, you could face active jail time for a felony conviction OR a misdemeanor conviction. You could also be convicted of some low level felonies and not serve ANY actual jail time because you have a completely clean history. In North Carolina and in most states, the big difference between a felony conviction and misdemeanor conviction is how the convictions are treated. If you are convicted of a felony, regardless of whether you actually serve any jail time, you lose certain rights like voting rights, gun rights etc. Plus it is harder to obtain employment with a felony on your record because many employers heavily scrutinize those types of things.
When an officer places someone under arrest, the officer tells must tell the suspect that he has certain rights including the right to remain silent, anything he says will be used against him, he has the right to an attorney etc. These are your Miranda rights. They are named after a US Supreme Court case from the 1960s called Miranda versus Arizona. If you can prove that the officer didn’t read you these rights and if you made potentially incriminating statements to the officer after he should have read these rights to you, then the State cannot use these statements against you in the prosecution of your case. If the state has other evidence against you such as physical evidence or you made other incriminating statements BEFORE these rights would have attached, then the State can still move forward with the prosecution and convict you. Therefore, a Miranda violation is not going to mean an automatic win for you in your case.
The severance agreement provided by your employer was drafted by their legal counsel, it only makes sense for you to have an attorney looking out for your interests review it as well. Having an attorney review the agreement will make sure that it is a balanced document that will not harm you going forward. Further, the attorney will make sure that you are not waiving any rights that should not be waived. Finally, the attorney can advise whether the compensation is adequate or if you should negotiate a better deal.
Employment law clients often are enduring economic hardships as a result of issues with their employment. With this is in mind, we attempt to offer a fee structure that strikes a balance between our clients’ economic struggles and our need to be compensated for our legal services. Therefore, we offer several different fee structures in an attempt to satisfy their financial needs. The most commonly used fee structure is the modified contingency fee. This fee structure is designed to form a partnership with the client and share the risk with them. The modified contingency fee combines an affordable flat fee payment with a reduced contingency fee.
Deadlines are very important and you should confirm the specific deadline in your case with a qualified employment law attorney. Generally speaking, you have 180 days to file a discrimination complaint with the EEOC. This deadline may be longer or significantly shorter based on the specific facts of your case. Missing a deadline can be fatal to your case, so it is important to find out your exact deadline as soon as possible.
People commonly misunderstand what a hostile work environment is from a legal perspective. Having a mean boss who yells a lot does not constitute a hostile work environment from a legal standpoint. To prove that you are part of a hostile work environment, you must show that you are part of a protected class as defined by your race, gender, age, religion, disability, etc. and that you were subjected to unwelcome verbal or physical conduct because of your protected class. It is also important to note that the behavior must be considered severe and pervasive to be defined as an abusive work environment.
Retaliation in the workforce is different than how we normally think of the definition of retaliation. Retaliation in a legal sense is when an employee receives an adverse employment action such as termination, demotion, etc. for participating in a protected activity. Protected activities include filing a complaint with the EEOC, complaining about discrimination, filing a workers compensation complaint, refusing to break the law and reporting your employer to OSHA.
The easiest way to prove that you were wrongfully terminated is through direct evidence. If there was a conversation, email or document that shows you were fired due to your race, religion, age, national origin, sex or being a member of some other protected class, then you can prove wrongful termination. If there is no direct evidence, it may be possible to show that the circumstances around your termination indirectly prove you were wrongfully terminated.
Wrongful termination is often confused with the concept of being unfairly fired. In North Carolina, fairness has nothing to do with wrongful termination. In order for your termination to qualify as wrongful termination, you must show that you were either discriminated against, retaliated against for participating in a protected activity, refusing to commit an illegal or unsafe act or other reasons that violates North Carolina public policy.
Simply put, employment “at-will” means that an employer can terminate an employee without just cause and without any warning. Conversely, an employee is permitted to quit a job without giving notice for any reason. Practically speaking, “at-will” employment makes it possible for employers to terminate employees for any non-discriminatory reason without having to fear legal repercussions