Charlotte Criminal Lawyer Blog

Federal, state governments flooding American society with “crimes”

Published on: January 29, 2015 | On behalf of Arnold & Smith, PLLC

Charlotte DWI Lawyer Brad Smith answers the question: What are the long term effects of being convicted of a crime?

On average, American professionals commit several crimes per day, according to lawyer Harvey Silverglate. He wrote a book on the subject titled Three Felonies a Day. Silverglate and many others—including the National Association of Criminal Defense Attorneys—think Americans have to contend with too many criminal laws, so many in fact that most Americans are unaware of what, exactly, is illegal.

At common law, in order to be found guilty of a crime, a prosecutor had to demonstrate that a person possessed both a guilty mind—that is, he or she intended to commit the crime—and that the person did indeed commit the crime. American criminal law developed out of the British common law system, which in turn developed out of the Roman Civil Law system. The Romans called the guilty act “Actus reus” and the guilty mind “Mens rea.” A prosecutor needed to prove both to convict.

At the time of the founding of the United States, the federal government was vested by the Constitution of the United States with certain limited powers. The power to police common-law crimes was reserved to the states. The states employed the common law in order to provide and maintain order, and over time, states passed criminal codes or statutes—written laws—that superseded, replaced or were in addition to common-law crimes.

Eventually the federal government got into the act of policing crimes. The Congress passed laws creating certain agencies—the Federal Bureau of Investigators, the Drug-Enforcement Agency, the Bureau of Alcohol, Tobacco and Firearms—and gave to these agencies the authority to arrest, prosecute and imprison people for violating new federal criminal statutes.

Depending on how they are used, self-administered breath tests may be valuable

Published on: January 27, 2015 | On behalf of Arnold & Smith, PLLC

Charlotte DWI and Criminal Defense Attorney J. Bradley Smith of Arnold & Smith, PLLC answers the question “Are breath test results always accurate?”

New, portable breath-testing machines sold by Breathometer, Inc. and other companies are making waves in the public marketplace, particularly among college-aged and twenty-something adults. Users of the device in North Carolina should beware: it will probably not help you if you are pulled over for drunk driving.

What is it?

In plain terms, the Breathometer and the newer “Breeze” products are portable, handheld devices that people can use to test their own breath-alcohol content. Entrepreneur Charles Michael Yim founded Breathometer, Inc. in 2012 in order “to build the world’s first portable breath analysis platform to help people make smarter decisions, improve healthcare and save lives.”

The original Breathometer machine plugged directly into the audio jack of a smartphone. The latest “Breeze” product works in a similar fashion, using “a next-generation electrochemical fuel cell sensor[.]” It is an “FDA registered, law-enforcement grade product,” according to Breathometer, Inc.

New hacking legislation could make criminals of us all, say insiders

Published on: January 22, 2015 | On behalf of Arnold & Smith, PLLC

J. Bradley Smith of Arnold & Smith, PLLC answers the question “Can I be arrested without evidence against me?”

Tech industry insiders are guffawing at new cybersecurity initiatives unveiled by the Obama administration. According to insiders familiar with the proposals, new cybersecurity-targeted criminal laws will make criminals of us all.

According to Paul Wagenseil of Tom’s Guide US, the proposed changes to the 1984 Computer Fraud and Abuse Act would “make many commonplace security research practices—and media reporting on those practices—federal crimes.”

Nate Cardozo, an attorney with the Electronic Frontier Foundation in San Francisco, California, told researchers and intellectual property professionals at a Washington, D.C. conference that sharing passwords for online accounts or even sharing an HBO “GO” password with a friend could constitute felonies under the proposed legislation. HBO—short for “Home Box Office”—is a cable-television based distributor of movies and entertainment programs.

In sum, the proposals “broaden the definition of computer crime and stiffen penalties for existing crimes,” with maximum penalties for violations being pushed from ten years to twenty years.

Ignorance of law, legal rights at issue in North Carolina-related Supreme Court case

Published on: January 20, 2015 | On behalf of Arnold & Smith, PLLC

J. Bradley Smith of Arnold & Smith, PLLC answers the question “Should I talk to the police?”

A recent United States Supreme Court has some legal observers complaining that police officers are entitled to mistakes of law, while ordinary citizens are not. The decision underlines, however, the ignorance many citizens have about their own rights under the Fourth Amendment to the Constitution of the United States.

As Maynor Javier Vasquez drove a Ford Escort north a little before eight o’clock in the morning on April 29, 2009, on Interstate 77 in Dobson, North Carolina, Sergeant Matt Darisse of the Surry County Sheriff’s Department—who was observing northbound traffic—thought the Vasquez looked “stiff and nervous.”

Sgt. Darisse pulled out and followed Vasquez, ultimately signaling for him to pull the car over. After he pulled Vasquez over, Sgt. Darisse explained that as long as Vasquez’s license and registration checked out, he would be let off with a warning ticket. Sgt. Darisse had pulled Vasquez over, the officer explained, because one of the brake lights on the Ford Escort was out.

That one shuddered brake light became a pesky issue on the years of appeals that arose out of the encounter that began between Sgt. Darisse and Vasquez. In the end, the North Carolina state appellate courts agreed that the brake-light statute, using the language “a” stop lamp, only requires one working brake light on a motor vehicle.

Road rage, forgery convictions no obstacle to employment in Family and Children Services

Published on: January 15, 2015 | On behalf of Arnold & Smith, PLLC

Charlotte DWI Lawyer Brad Smith answers the question: A past conviction is keeping me from finding work what can I do?

The State of Georgia has employed a woman to protect its most vulnerable children despite her convictions for forgery and on charges stemming from a 2011 road-rage incident.

The woman—Paige Newsome—was employed last May in Cherokee County by the Georgia Division of Family and Children Services as a child-protection investigator. Applicants for employment by the State of Georgia are required to report any convictions or pending criminal charges on their employment applications. Newsome reported four traffic convictions, and she noted that charges were pending against her related to defrauding her father out of more than $1,700 by forging his name on checks.

Newsome failed to report that she pled guilty to charges in Louisiana stemming from a 2011 Interstate 20 road-rage incident in which Newsome allegedly pointed a revolver at another driver after cutting in front of him. The State of Georgia discovered the road-rage conviction but hired Newsome anyway.

A month after Newsome began working for the Division of Family and Children Services, she pleaded guilty to two counts of forgery for signing her father’s name to checks without his permission. She was fined $250 and placed on probation for a year.

Trooper says accident not bus driver’s fault, charges her with reckless driving anyway

Published on: January 13, 2015 | On behalf of Arnold & Smith, PLLC

J. Bradley Smith of Arnold & Smith, PLLC answers the question “Can I represent myself on a traffic ticket?”

A 38-year-old Gaston County woman has been charged with reckless driving after a school bus crash that injured 23 middle school students, despite the fact that a North Carolina State Trooper said the crash was not caused by “something she was doing.”

The driver—Annette Phillips—was charged Thursday after the school bus she was driving flipped on its side on a curvy stretch of Chapel Grove Road in rural southwestern Gaston County. Phillips was transporting students home from Southwest Middle School in Gastonia. According to WCCB, Phillips own son was riding on the bus at the time of the accident.

Trooper John Burgin told WBTV that an overhead storage compartment door fell open, causing a distraction and blocking Phillips’ line of site. When Phillips tried to clear her line of site, she ran the bus off the right side of the road, then overcorrected to the left, tipping the bus on its side.

Troopers say the bus was traveling anywhere from 30 to 40 miles per hour before the crash. The posted speed limit in the area is 45 miles-per-hour, but the stretch of Chapel Grove Road where the crash occurred bends sharply over a creek and up a steep hill. Warning signs advise drivers not to exceed 25 miles-per-hour around the curves, but troopers conceded those warnings are only suggestions.

Jury clears officer who shot and killed unarmed backseat passenger during traffic stop

Published on: January 7, 2015 | On behalf of Arnold & Smith, PLLC

J. Bradley Smith of Arnold & Smith, PLLC answers the question “If I have an outstanding warrant, what should I do?”

The “Hands up, don’t shoot!” moniker is all the rage in the United States, with prominent professional athletes in the National Basketball Association and National Football League, as well as well-known celebrities, politicians, political pundits and media figures adopting the meme—some displaying the same on tee shirts proclaiming the phrase.

Long before the rage—before Michael Brown was shot to death by Officer Darren Wilson in Ferguson, Missouri, and before New Yorker Eric Garner died after being wrestled to the ground by a small team of New York City police officers—an unarmed backseat passenger in Billings, Montana was shot to death for failing to raise his hands during what began as a simple traffic stop.

Officer Grant Morrison said that on the night of April 14, 2014 he saw a car “turn quickly and decided to follow it.” After following it, Morrison said, he pulled the car over because of a “light violation.” Richard Ramirez was a passenger in the car.

Morrison testified at a hearing that after pulling the car over, he noticed that the back right passenger was pushing against the door. Morrison ordered all of the car’s occupants to raise their hands, but the 38-year-old Ramirez kept fumbling for something in his pocket.

“Wings on pigs” post protected by First Amendment, says legal expert

Published on: December 31, 2014 | On behalf of Arnold & Smith, PLLC

J. Bradley Smith of Arnold & Smith, PLLC answers the question “Should I talk to the police?”

Americans are well informed of the facts—and the rhetoric—surrounding the high-profile police killings of Michael Brown in Ferguson, Missouri and Eric Garner in New York City this past summer. Most are just as familiar with killing of two New York City police officers last weekend by a man who said the point-blank shootings were retribution for Garner’s killing.

The man—Ismaaiyl Brinsley—allegedly posted on the website Instagram some three hours before fatally shooting officers Wenjian Liu and Rafael Ramos that he was “Putting Wings on Pigs Today.” The term “pig” is an insulting form of slang that refers to a law-enforcement officer. One gives someone wings—a reference to angel’s wings—by murdering someone. Brinsely’s post, translated, meant he planned to kill some police officers.

Now police in Chicopee, Massachusetts are seeking a criminal complaint against a 27-year-old man who also allegedly used the phrase “put wings on pigs” in a post on his Facebook page. That man—Charles DiRosa—is not accused of killing anyone, but police view the comment as a threat, according to Chicopee Police Department spokesman Michael Wilk.

The complaint, filed by members of the detective bureau in Chicopee District Court, is described as a “show-cause” complaint. A report by the local CBS affiliate described the charge against DiRosa as a “Threat To Commit A Crime.” At the show-cause hearing, the District Court will decide whether the complaint is valid. If so, DiRosa will be entitled to have a trial to answer and defend against the charge.

Jury convicts man who pled “stand your ground” defense

Published on: December 17, 2014 | On behalf of Arnold & Smith, PLLC

J. Bradley Smith of Arnold & Smith, PLLC answers the question “Can I be arrested without evidence against me?”

A 30-year-old Montana man has been convicted of deliberate homicide in the April 27, 2014 shooting death of a German foreign-exchange student.

The man, Markus Kaarma of Missoula, Montana, found 17-year-old Diren Dede in his garage after Dede triggered motion sensors. Witnesses testified at Kaarma’s trial that the man fired four shotgun blasts at Dede. Prosecutors argued at trial that Kaarma paused before taking the fourth shot, allegedly adjusting his aim before firing a blast into Dede’s head. Dede was unarmed at the time.

Kaarma’s neighbors testified that the man was disappointed by the response of local police to previous break-ins at his home. His girlfriend, Janelle Pflager, allegedly told neighbors that Kaarma set out to bait an intruder and catch one himself. Prosecutors argued that Kaarma wanted to do more than catch a burglar; they said he was intent on “luring an intruder into his garage” in order to harm the person. On the night of Dede’s shooting, Kaarma had left the garage door partially open with a purse visible inside.

Kaarma argued at trial that he feared for his life and could not tell whether the intruder was armed or not at the time he fired the shot. His lawyers also pointed out that Kaarma had been on edge after his garage was burglarized at least once in the weeks before the shooting.

Notes of caution sounded on across-the-board police body-camera use

Published on: December 10, 2014 | On behalf of Arnold & Smith, PLLC

J. Bradley Smith of Arnold & Smith, PLLC answers the question “Can I be arrested without evidence against me?”

The move is on—in the wake of riots and protests over police shooting and choking deaths of two unarmed men in Ferguson, Missouri and New York City—to equip police officers nationwide with body cameras. Privacy advocates, police chiefs and at least one police union, however, are expressing concerns about the plan.

The Washington Post reported Wednesday that the Obama Administration has proposed spending $75 million on 50,000 body cameras to be fitted upon law-enforcement officers across the United States.

The Charlotte-Mecklenburg Police Department is well ahead of the curve on body cameras. Earlier this year, CMPD Chief Rodney Monroe announced that all officers in Charlotte would be equipped with body cameras. (See related blog: “CMPD police body cameras may mean Ferguson never comes to Charlotte”).

This, Monroe said, would increase the trust the community has in police and, at the same time, would provide the State with crucial evidence regarding the circumstances of crimes and the conduct of responding officers.

The Post, citing NBC News, which in turn cited St. Louis hip-hop artist and activist Antoine White, said police body cameras might not be all they are cracked up to be. White, who met with President Barack Obama at the White House on Monday to discuss the recent events in Ferguson, told NBC News that “Giving a policeman a camera does not prevent him from shooting me in the head.”