Cyber-bullying

Free-speech guardians worry man’s conviction may lead to criminalization of rap music

Published on: December 3, 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 Supreme Court entertained arguments this week in a case that could lead to the criminalization of some rap lyrics.

The case involves a 31-year old “aspiring rapper who likes attention” named Anthony Douglas Elonis. In early 2010, Elonis’s wife left with the couple’s two small children. Not long after, Elonis was fired from his job at an amusement park after coworkers made at least five sexual harassment complaints against him.

Elonis took to Facebook to voice his opinions about his estranged wife, his former employer and his old coworkers.

The statements began with Elonis posting an “I wish” caption beneath a Halloween photo showing him holding a knife to a coworker’s neck. That coworker had filed a sexual harassment complaint against Elonis shortly before Elonis lost his job.

Elonis then began posting statements directed at his estranged wife. In one message, he wrote: “If I only knew then what I know now, I would have smothered your ass with a pillow, dumped your body in the back seat, dropped you off in Toad Creek, and made it look like a rape and murder.”

North Carolina Bank Robber Nabs Supreme Court Review Of His Conviction

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

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

The case of a North Carolina bank robber is set to get national attention over the coming months after the U.S. Supreme Court agreed to hear the matter. The case involved Larry Whitfield, a 26-year-old who is currently in prison and not scheduled to be released until 2022.

The issue in the case concerns something that judges have long argued about and for which a clear rule still does not exist. Though everyone understands that bank robbery is a crime, many may not realize that anyone robbing a bank that is found to have forcibly moved another person, either during the crime or while fleeing, faces even stiffer penalties.

Standard bank robberies involve a possible punishment of up to 20 years, though there is no mandatory minimum, meaning that judges are empowered to reduce the sentences of those they feel are deserving. However, anyone who has been found to violate the forced-movement law faces an additional 10-year mandatory sentence and possibly even life behind bars.

The question that the Supreme Court must now wrestle with is how much movement is necessary to prompt a violation of the forced-movement law. In this case, Whitfield and a partner armed themselves with weapons and intended to rob a credit union in Gastonia, NC. A tough security system prompted them to flee the scene, ultimately seeking refuge in the home of a nearby woman.

Legislators Move To Protect Oil Companies By Criminalizing Disclosure Of Fracking Information

Published on: June 12, 2014 | On behalf of Arnold & Smith, PLLC

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

The North Carolina Senate recently passed a confusing and, to some, troubling measure that would make it a crime for anyone to publicly reveal the chemicals used in hydraulic fracturing, or fracking. According to supporters, the measure, which passed the Senate by a vote of 35-12, is an attempt to protect trade secrets of the oil and gas industry. Critics say that the law represents an attempt to deny the public crucial information concerning the substances being pumped into the ground.

The measure was proposed by three Republican senators who say the law is needed to protect vital secrets regarding how the oil companies are able to extract oil from below the earth’s surface. Experts say fracking happens when water, chemicals and sand are blasted deep into the earth, eventually setting free large deposits of oil and natural gas.

The trouble is that some environmental groups claim that these chemicals can be deadly and can leech into the groundwater supply, potentially posing health risks to those that live in the area. As a result, many have campaigned for the oil companies to reveal the exact composition of the fluids being blasted into the earth, something the recent North Carolina law is aimed to prevent.

As the current bill is written, a geologist working for the state would be the sole keeper of the information regarding the contents of the fracking fluid. That information would be kept secure and only released to healthcare providers, public safety officials and fire chiefs, and only in the event of an emergency.

North Carolina Drunk Drivers Target Of Joint Law Enforcement Efforts

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

Attorney J. Bradley Smith answering the question: “Should I ever plead guilty to a charge?”

Law enforcement officials across the State of North Carolina have agreed to join forces yet again to combat drunk driving. This year marks the fourth anniversary of State Highway Patrol officers working in conjunction with the Wildlife Resources Commission and the Alcohol Law Enforcement division to bust impaired drivers.

The law enforcement groups will work together to crack down on drivers as well as boaters, a campaign dubbed “On the Road, On the Water, Don’t Drink and Drive.” The groups say that alcohol is responsible for hundreds of accidents, both on land and on water, and that the joint collaboration between the agencies can help lead to greater success.

In North Carolina, the law says that it is illegal for a driver in a motor vehicle to drink while operating the vehicle. Additionally, anyone found to be operating a motor vehicle with a BAC greater than 0.08 percent faces drunk driving charges. The law differs slightly with regard to boaters, given that boaters are allowed to consume alcohol while operating their boats. However, boaters are held to a similar standard of intoxication and can be charged with Boating while intoxicated, or BWI if found to have a BAC greater than 0.08 percent.

The agencies say they will work together between Memorial Day and Labor Day, a traditionally busy time for drunk driving arrests. Checkpoints will be put in place across the state, both on land and on water, to ensure that drivers out for a good time are not legally impaired.

Dizzying Number Of Criminal Codes Cause Problems

Published on: June 5, 2014 | On behalf of Arnold & Smith, PLLC

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

When you think of criminal laws some might appear obvious, prohibitions against murder, physical violence, drug use, thefts, etc. Though the list goes on and on, many might be surprised just how far the list actually goes. A recent article discussed the stunning number of criminal laws in North Carolina and concluded that the number of codes can actually be used as a weapon against residents of the state, allowing police to charge almost anyone with some kind of criminal violation.

Experts say that there are currently more than 1,150 individual criminal codes in North Carolina. These include criminal statutes, motor vehicle rules, codes, and other regulations that have the power to be criminally enforced. A paper by the Manhattan Institute found that this criminalization is excessive and needs to be reformed, worrying that the array of criminal regulations restricts freedom.

Interestingly, legislators in some states have begun to realize that continuing to add crimes to the already lengthy list does little to protect the lives or property of residents. Instead, a patchwork of criminal regulations develops leading to confusion among both citizens and law enforcement officials about what kind of behavior deserves criminal prosecution. Legislators in Tennessee and Virginia have specifically taken to the task of removing outdated or unnecessary crimes from their books, hoping to free up courts and ease the already heavy strain on the judicial system.

North Carolina has taken a radically different approach, adding laws rather than subtracting. Between 2008 and 2013, North Carolina actually averaged more than 34 new criminal offenses to the books each and every year. Though some have pointed out that as recently as 2013, legislators downgraded 21 low-level misdemeanors, the truth is that many more crimes were upgraded than were downgraded during that round of reform.

Welfare Fraud Leads To Criminal Charges Across North Carolina

Published on: June 3, 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?”

Though welfare fraud may not sound like an offense worthy of jail time, those who are found defrauding the government in Cabarrus County, North Carolina might soon find themselves behind bars. Officials with the county say that an investigation revealed more than a million dollars in government assistance fraud has taken place in the past two years alone. To combat the problem, prosecutors say they are going to get tough with offenders and start locking up those responsible for wasting taxpayer money.

Officials say that $150,000 out of the million dollars in fraud is directly linked to people lying about their situation, either their income or their number of dependents. Already officials say 15 cases have been referred to prosecutors and six cases were formally brought just this past week. A spokesperson says that the director of Cabarrus County Human Services identified those involving fraud and that prosecutors are now sifting through information related to those case before bringing formal criminal charges.

According to authorities, the instances of fraud were largely revealed thanks to anonymous tips, many received by friends or family members of those responsible for lying. The tipsters would call the Human Services Office and explain how someone had lied to extract more money in benefits. In many cases, those being charged lied about their financial circumstances to get more money in food stamps, Medicaid and other government assistance programs.

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.