Attorney

Can a person be convicted of a crime even if he did not know what he was doing was a crime?

Published on: May 29, 2014 | On behalf of Arnold & Smith, PLLC

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

The law is a place where simple questions have complicated answers and where much depends upon the way questions are framed. Many times I have been asked, for instance, whether someone can be convicted of a crime for doing something a person did not know was a crime.

Guilty Charlotte DWI Attorney North Carolina Criminal Defense Lawyer The answer is a resounding yes! Invariably, the next question is, “How is that fair?”

Many modern criminal codes – including those applicable in state and federal courts in North Carolina – include what are known as “strict liability” offenses. All the government has to prove in those cases is that a person did a certain act. Regardless of the person’s intent, if the act was done, the person is guilty.

An easy example is the offense of driving while impaired. If a person is shown to have been impaired and to have driven a motor vehicle while impaired, he or she is guilty of the offense regardless of one’s intent to be impaired or to drive.

Another easy example is the offense of statutory rape. Statutory rape does not necessarily involve a rape by force. A victim in a statutory rape case may consent to sexual relations. If the victim is under a certain age and the sexual partner is over a certain age, the mere act of engaging in sexual contact exposes the sexual partner to criminal liability. Whether the sexual partner knows the victim’s age is irrelevant. Likewise, whether the sexual partner and victim are boyfriend and girlfriend is irrelevant.

Supreme Court: Illegal for police to search your phone without a warrant

Published on: May 27, 2014 | On behalf of Arnold & Smith, PLLC

Charlotte DWI and Criminal Defense Attorney J. Bradley Smith of Arnold & Smith, PLLC answers the question “Can the police search my car without a warrant?”

Of course police want everything off your phone. They want to take it, analyze it, and try to use it to prove you committed a crime.

In their eyes, your phone is like anything else. Anything you say and do – text, email, connect with old friends on social networking sites – can and will be used against you.

Until yesterday.

In a June 25, 2014 unanimous decision (and I don’t mean your menu choice for lunch from Moe’s Southwest Grill), the nine justices of the United Supreme Court ruled that police have to get a warrant before they can troll through the contents of your phone.

The case – Riley v. California – began when an officer pulled David Riley over for driving in a car with an expired tag. Things went downhill fast for Riley when the officer learned his license had been suspended and he found two handguns in Riley’s car.

The officer took Riley’s smartphone and searched through the portion of his contacts titled “Crip Killers.” Photos and videos on the phone showed Riley was a member of the Bloods gang and had participated in a shooting weeks before his arrest, officers alleged.

After a trial, Riley was convicted and sentenced to 15-years-to-life in prison.

He appealed, arguing that the Fourth Amendment to the United States Constitution required officers to get a warrant before searching the contents of his smartphone. Some powerful sources lined up against Riley, including the Obama administration, which argued that police have always had free reign to search people’s “letters, diaries, briefcases and purses,” so they should be able to troll through people’s cell phones.

Chief Justice John Roberts appeared to laugh off that assertion in the Court’s opinion, writing that the comparison was “like saying a ride on horseback is materially indistinguishable from a flight to the Moon.”

North Carolina Says Giving Diet Advice Online Could Lead To Criminal Charges

Published on: May 22, 2014 | On behalf of Arnold & Smith, PLLC

Attorney J. Bradley Smith answering the question: “What are the long term effects of being convicted of a crime?”

You might think that in the hierarchy of criminal acts, giving diet and nutritional advice online wouldn’t seem to rank very high. Though dieting and recipe tips may not seem especially insidious, that hasn’t stopped one North Carolina man from running into legal trouble.

The issue, which was recently uncovered by the conservative think tank, The Heritage Foundation, began when Steven Cooksey began offering his personal views concerning diet and eating habits online. Cooksey started a blog several years ago about his struggle to manage his diabetes. On the blog, Cooksey told his readers how a new diet had helped him not only survive, but also thrive and felt like he owed it to others to spread the good news.

Though Cooksey felt confident about his dietary advice, he did make clear that he was neither a doctor nor a nutritionist, telling readers that he was simply a man interested in sharing his personal experience. Though the warning might seem to be sufficient to inform those who happened upon his site that any advice should be taken with a grain of salt, North Carolina authorities did not feel the warning went far enough.

Almost three years after the blog was first launched, the North Carolina Board of Dietetics and Nutrition warned Cooksey that he had no right to offer advice on dieting, regardless of whether he was being paid for that advice or not. To offer any such dieting tips and tricks amounted to the unlicensed practice of dietetics, something that is a misdemeanor under state law.

Digging In The Woods Leads To Jail Time For Two North Carolina Men

Published on: May 20, 2014 | On behalf of Arnold & Smith, PLLC

Attorney J. Bradley Smith answering the question: “Can I be arrested without evidence against me?”

Chalk this story up to a bizarre crime that many people would be shocked to learn is actually criminal. Authorities in western North Carolina recently announced that two men who were arrested last October for poaching wild ginseng have now been sentenced for their actions. Not only were the two charged with a very real crime, they will now spend time behind bars for their decision to dig up the root.

The whole mess began last October during the government shutdown. Twenty-six-year-old Daniel Mizell and 33-year-old Derek Vann Whitson were both found in a closed portion of the Blue Ridge Parkway. The two were caught red-handed digging up wild ginseng. In the end, the two had managed to unearth a combined three pounds of ginseng.

Though digging up a root in the woods may not seem like a dastardly crime, the two men were handcuffed by officers and taken to jail for booking. Now, months later, they have been sentenced for their actions that day.

Three North Carolina Teens Arrested For Cyber-Bullying

Published on: May 15, 2014 | On behalf of Arnold & Smith, PLLC

Attorney J. Bradley Smith answering the question: “If I simply intend to plead guilty, why do I need a lawyer?”

Everyone knows that young people can be cruel. Anyone who suffered through middle or high school has likely felt the sting of hurtful comments or the isolation caused by bullying. However, teenagers today have resources at their disposal that previous generations of bullies never did: computers, the Internet and social media.

By taking some of the unpleasantness of growing up online, it means that in some cases children are unable to ever get a break from the painful taunting of classmates. To help solve the increasingly serious problem of cyber-bullying, North Carolina legislators have passed laws that allow police to arrest those who engage in the vicious behavior. North Carolina is currently one of 19 states to have implemented cyber-bullying laws in response to a rise in victims suffering serious emotional trauma from the sometimes-vicious online behavior of their peers.

Earlier this month three teens from Cornelius, North Carolina discovered that cyber-bullying was something to be taken quite seriously as they were arrested and charged with a crime. Their teenage misbehavior had escalated to involve lawyers, judges and possible misdemeanor criminal charges.

North Carolina Legislators Pass Juvenile Offender Bill :: Charlotte DWI Attorney

Published on: May 13, 2014 | On behalf of Arnold & Smith, PLLC

Attorney J. Bradley Smith answering the question: “What are the long term effects of being convicted of a crime?”

The North Carolina House passed a new bill that would help move the state in the right direction in terms of classifying 16 and 17-year-olds as juvenile offenders when facing misdemeanor criminal charges. The juvenile offender bill means that North Carolina now joins the ranks of 48 other states that ensure minors are subjected to the juvenile justice system after being accused of committing crimes.

The bill, known as the Young Offenders Rehabilitation Act, passed the House 77-39. Though the bill officially classifies 16 and 17-year-olds as juvenile offenders for misdemeanor cases, it leaves open the question of what to do about those teens facing felony charges. The bill exempts gang members and gang crimes from this classification, meaning 16 and 17-year-olds could lose their juvenile status if charged with such crimes.

The language of the law says that a new advisory committee would be created to handle the civil citation process for those teens that are charged with misdemeanors in North Carolina. The law was proposed because many felt that existing laws which allowed offenders as young as 16 to face adult punishment for crimes were unfair and counterproductive.

Advocates of change argued that such serious penalties for young offenders would negatively alter the trajectory of their lives and make it that much harder for young offenders to eventually become productive members of society. Under the new bill, young offenders would be given counseling and forced to go through special programs designed to reintroduce young offenders into their communities as productive citizens.

Can You Be Arrested For Drunk Driving In North Carolina Without Actually Driving A Car?

Published on: May 8, 2014 | On behalf of Arnold & Smith, PLLC

Attorney J. Bradley Smith answering the question: “What happens if I am convicted of a DUI or DWI in North Carolina?”

Though it may sound crazy, it is actually possible for people to be arrested and charged with drunk driving in North Carolina without being found driving a vehicle. How could that happen? Keep reading to find out more about what North Carolina law says about drunk driving.

What does the law require?

The law in North Carolina clearly says that for a person to be convicted of impaired driving, he or she must be found to operate a vehicle while under the influence of an impairing substance. Though this may seem clear cut, the statutes further specify this broad statement and explain that a person can be found to have “operated” a car if he or she is in actual physical control of that vehicle.

Actual physical control

Actual physical control has been defined by many courts as when a driver has the keys to the vehicle either in the ignition or near the ignition and has the ability to operate the car on short notice. Though the person may not actually be driving, it would not take much effort to put the car into motion, thus endangering others.

Ambien Zombies Face Serious Legal Obstacles When Defending Criminal Cases :: Charlotte DWI Criminal Lawyer

Published on: May 6, 2014 | On behalf of Arnold & Smith, PLLC

Attorney J. Bradley Smith answering the question: “What are the long term effects of being convicted of a crime?”

Many people have heard of the sleep drug Ambien (also known as zolpidem) and may also have heard stories about bizarre behavior linked to taking the prescription medication. Though these stories are usually just oddities, like sleep walking or talking, there have been other reports of more dangerous actions that can lead to serious harm to others.

In some cases those under the influence of zolpidem have been found driving, walking down the street and even preparing food while seemingly asleep. Even more worrying are several reports of otherwise happy people with no previous history of violence brutally murdering loved ones after taking Ambien. These “Ambien zombies” claim to have no memory of their actions and are shocked when they awaken to find out what they have done.

An interesting article by a medical research website discussed several cases of murders committed while defendants were under the influence of Ambien and revealed how difficult it can be to explain how the drug can impact a person’s brain to both judges and juries.

Amazingly, one of the three murder cases discussed in the article took place in North Carolina when a heavily armed man stormed into the nursing home where his estranged wife worked and shot eight people to death. The terrible incident occurred back in 2009 and the defendant later claimed that he was under the influence of Ambien at the time.

North Carolina Man Arrested For Choking His Mother’s Chihuahua

Published on: May 1, 2014 | On behalf of Arnold & Smith, PLLC

Attorney J. Bradley Smith answering the question: “Can I be arrested without evidence against me?”

Police in Lincolnton, North Carolina say they have arrested an 18-year-old and charged him with one count of cruelty to animals after they say he choked a Chihuahua. Jason Hildebran was arrested earlier this week and released on $1,000 secured bond.

According to the Lincoln County Sheriff’s Office, Hildebran was angry because his mother’s Chihuahua was barking at him. Rather than leave the room or try and calm down, Hildebran instead chose to choke the little dog to get it to stop.

Hildebran’s mother was obviously concerned and demanded Hildebran hand over the dog, however, her son refused, which resulted in a call to police. When officers arrived Hildebran was still holding the dog who was thankfully not hurt. The teen was handcuffed and arrested and the dog was returned to its concerned mother.

Now Hildebran faces serious criminal charges all because he lost his temper with the animal. North Carolina General Statutes Section 14-360 says that anyone who injures, torments, tortures or cruelly beats an animal can be punished with either Class 1 misdemeanor or Class H felony charges. So what’s the difference?

North Carolina Teen Jailed After Serving Collard Greens With A Dash Of Insecticide

Published on: April 29, 2014 | On behalf of Arnold & Smith, PLLC

Attorney J. Bradley Smith answering the question: “Do I need to hire an attorney if I have been falsely accused?”

Police in Fayetteville, NC say that one family dealt with an especially unpleasant Easter surprise, a surprise that resulted in criminal charges for one 17-year-old. Authorities say that rather than enjoy a nice family Easter gathering, a teen, Tyt’ana Lisa-Nicole Johnson poisoned her grandmother’s food.

The incredibly sad incident began early Easter Sunday when 51-year-old Gaylon Moody was at church. Her teenage granddaughter did not want to attend services that day and remained at home. When the family and friends had returned to enjoy a big Easter lunch, they soon discovered that Johnson had added something extra to the collard greens.

Investigators say that Moody and a friend began feeling strange soon after ingesting the tainted collard greens. Moody and her friend say they felt numb and mistakenly assumed it was food poisoning. At first the numbness was isolated but it began to spread across their bodies. Eventually, every other food or beverage they consumed tasted differently and the two victims were unable to feel their faces. Both were taken to the nearby Cape Fear Valley Medical Center for treatment where doctors similarly misinterpreted the symptoms as a stomach virus.