When you are cited for speeding in Dare County, the charging officer will sometimes tell you that you can pay off the ticket and avoid a court appearance. What they often fail to tell you is that one Dare County speeding ticket can cost you thousands when you consider increased insurance premiums. Let’s do some math!

According to NerdWallet, the national average for car insurance is $1,427 for a driver with good credit. The North Carolina Commissioner of Insurance allows a 3 year increase in insurance premiums based on convictions for moving violations in NC. A simple Dare County speeding conviction of 69 mph in a 55 mph zone would cause an NC driver to incur 2 points for insurance purposes. The NC Insurance Commission allows a three year, 45% increase of a driver’s premium based on a 2 point conviction.

So, if a driver’s annual premium is $1,427, then over 3 years it is $4,281. A 45% increase would cause that driver to pay a total of $6,287.45 over 3 years – an additional $1,926.45 in premiums!

Let’s say a person decided to represent themselves in Dare County court and pleaded guilty to a 76 mph in a 55 mph zone. The NC Commissioner allows an 80% increase for that conviction. Not only would the driver be subjected to a suspension of their license in this case, but would also go from paying $4,281 over 3 years to paying $7,705 – a $3,424.80 increase!

If you are accused of speeding in Dare County, please consider hiring a reputable criminal defense lawyer. If you have a lawyer in the area, use them. If you need a lawyer, please give us a call so that we might help you avoid some of these unintended consequences of a Dare County speeding ticket.

Since 2010, Donahue Defense has had the honor of providing legal representation to Outer Banks locals and visitors in traffic ticket cases, DWI cases, drug possession offenses, and other criminal matters.

The Typical DWI Arrest (If There is Such a Thing)

In a textbook NC DWI case, a person is first pulled over and investigated for suspicion of DWI. The officer makes contact with the driver, looks for signs of impairment and administers standardized tests to determine whether there is probable cause to arrest for driving while impaired. If the officer determines that the suspect is probably impaired, the officer makes an arrest.

After a DWI suspect is taken into custody, they are taken to a magistrate’s office to be processed. Prior to being taken in front of a magistrate, the law enforcement officer advises the suspect of certain rights and then offers a breath test on a machine called the EC/IR II. Before requesting the test, the officer advises the suspect that if they refuse the “voluntary” test, their license will be revoked for a one year period. This law is known as an “implied consent” law and is intended to create an incentive for drivers to willfully comply with the request of law enforcement so that they won’t be subjected to a forced blood draw or other involuntary form of testing.

Despite the warning from officers, oftentimes people refuse the test. This is usually because the suspect does not fully understand their rights, is very nervous, and doesn’t fully comprehend the consequence of the refusal. Other times, there are other reasons such as medical issues that cause the suspect not to be able to provide a sufficient breath sample.

I Refused, Now What?

If you are facing a refusal and hope to keep your license, you have to jump through hoops that a typical DWI defendant does not. Not only do you have to face a prosecutor and judge in criminal court, you have to deal with an administrative hearing conducted by a DMV officer for the refusal.

Shortly after an arrest and refusal, DMV will send the driver notice stating that their license is revoked for 12 months, effective on the tenth calendar day after the mailing of the revocation letter/order unless, before the effective date of the order, the person requests a hearing before a DMV officer. If the person does not request the hearing in a timely manner, the fight is over – the driver’s license will be revoked for 12 months. If the driver does request the hearing (and pays the $450 hearing fee), then a hearing will be scheduled in the county where the charge was issued. The driver will retain his/her license while awaiting the hearing.

The NC DMV hearing officer schedules and conducts a hearing is similar to a court hearing. The hearing officer subpoenas witnesses or documents that the hearing officer thinks are necessary. He or she also subpoenas the law enforcement officer (and chemical analyst at the defendant’s request). The hearing is limited to 5 questions:

1. Whether the person is charged with an implied consent offense (or had an alcohol restriction on their license.)
2. Whether the officer had reasonable grounds to believe that the person had committed an implied consent offense (or violated an alcohol restriction on license).
3. If alleged in the affidavit, whether the offense charged involved death or critical injury to another.
4. Whether the defendant was notified of his/her rights under the law (G.S. 20-16.2(a): and,
5. Whether the person willfully refused the chemical analysis.

If the hearing officer finds that the conditions above are met, the officer must sustain (support and agree with) the revocation and DMV later notifies the defendant that the license must be surrendered. If the DMV officer finds that the above conditions are not met, the officer rescinds (cancel) the revocation.

What if I Think The DMV Officer is Wrong?

If a person loses their challenge to the revocation at the DMV hearing, they can petition the superior court (within 30 days) for a recorded hearing in open court. The superior court reviews whether there is sufficient evidence to support the hearing officer’s conclusion and determines whether the hearing officer committed an error of law in revoking the license.

I Did Fully Refuse, Should I Even Fight It?

The simple answer is, lawyer up. DWI law is dense and complex and it takes an experienced practitioner to assess a DWI case and craft a plan to deal with the charge. Even when a person is “guilty as hell,” there are sometimes issues present in the facts of the case that can help the person keep their privilege to drive, or even better, avoid a DWI conviction.

If you are charged in or around the Outer Banks of North Carolina and are looking for a DWI defense lawyer, consider giving us a call. Our number is (252) 715-5785.

Becoming a Board Certified Specialist in State and Federal Criminal Law

Non-lawyers are often curious how one becomes a legal specialist. Below is information about the standards that must be met to become board certified as a specialist in state and federal criminal law. The rigorous application and testing process helps explain why of the 28,302 lawyers in North Carolina, only 63 are state and federal criminal law specialists – a mere .22%.

As the NC State Bar Board of Legal Specialization states, “Hiring a board certified legal specialist helps to ensure that your lawyer is proficient in the specialty legal field in which you have a legal need. When you are looking for a lawyer, you can use board certification to identify lawyers who are qualified to represent you.

Board certification is an indication that the lawyer has intentionally focused his or her legal practice to improve the proficiency and quality of the lawyer’s legal services and to stay current in the specialty field.

Board certification, unlike the self-laudatory information in advertising and marketing, is a credential that you can rely upon because it is based upon objective criteria.”

Read more about the Board of Legal Specialization here.

Summary of Standards

Licensure

Licensed and in good standing to practice law in North Carolina as of the date of application.

Substantial Involvement in Criminal Law

During the five years preceding application:

• Average of at least 500 hours a year.
• Minimum of 400 hours for any one year.

Practice equivalents may be accepted for the following:

• service as a law professor for one year
• service as a federal, state or tribal court judge for one year.

Additional information required regarding: (A) representation during the applicant’s entire legal career in criminal trials concluded by jury verdict; (B) representation as principal counsel of record in federal felony cases or state felony cases (Class G or higher) (C) court appearances in other substantive criminal proceedings in criminal courts of any jurisdiction; and (D) representation in appeals of decisions to the North Carolina Court of Appeals, the North Carolina Supreme Court, or any federal appellate court.

Continuing Legal Education

During the three years preceding application:

• At least 40 hours of accredited CLE in criminal law, which must include the following:
  • at least 34 hours in skills pertaining to criminal law, such as evidence, substantive criminal law, criminal procedure, criminal trial advocacy, and criminal trial tactics;
  • at least 6 hours in the area of ethics and criminal law.

Peer Review

Must provide the names of ten lawyers or judges who practice in the field of criminal law and are familiar with the competence and qualification of the applicant in criminal law.

Must also provide a list of opposing counsel and judges in eight recent cases tried to verdict or entry of order.

All references must be licensed and in good standing to practice law.

A reference may not be related by blood or marriage to the applicant nor may the reference be a colleague at the applicant’s place of employment at the time of the application.

Exam

6 hours long (two 3-hour sessions).

The examination shall cover the applicant’s knowledge in the following topics in criminal law, and/or in the subspecialty of state criminal law, as the applicant has elected:

(A) the North Carolina and Federal Rules of Evidence;

(B) state and federal criminal procedure and state and federal laws affecting criminal procedure;

(C) constitutional law;

(D) appellate procedure and tactics;

(E) trial procedure and trial tactics;

(F) criminal substantive law;

Tested Topics Include the Following:

State Topics:

• Admissibility of testimony
• Justice Reinvestment Act
• Admissible evidence
• Jury considerations
• Automatic appeal
• Jury selection
• Business record introduction
• Lesser-included offenses
• Collateral consequences (to include license and insurance consequences)
• Motion for joinder
• Confidential communication between Attorney and client
• Offense classification and sentencing enhancements (emphasis given with multiple questions)
• Criminal history categories
• Pretrial release
• Criminal record
• Probation
• DWI (emphasis given with multiple questions to include pertinent case law)
• Search warrant
• Ethics
• Sex Offender Registration
• Evidence Rule 803(4)
• Structured sentencing act
• Good faith reliance
• Subpoena for witness
• Grand jury testimony
• Trial procedure
• Impeaching a witness
• Validity of search
• Infractions
• Witness interview procedures
• Insanity/diminished capacity

State and Federal Section:

• Consent to Search
• Misdemeanor statute of limitations
• Defense strategies
• Motion for new trial
• Domestic violence
• Motion to Suppress
• DWI (emphasis given with multiple questions to include pertinent case law)
• Plea agreement
• Enhanced punishment
• Post-conviction relief
• State Rules of Evidence
• Rules of professional conduct
• Federal proffered plea agreements
• Satellite-based hearings
• Federal Rules of Evidence
• Sex offender registration
• Federal Sentencing Guidelines
• Trial procedure
• Felony statutes of limitations
• Trial scheduling
• Grand Jury
• Trust accounts
• Jencks Act (18 U.S.C §3500)
• Venue options
• Mandatory minimum sentences
• Witness impeachment

Understanding NC DWI Sentencing

From the Atlantic coastline of the Outer Banks to the Blue Ridge Mountains of North Carolina, under the law, DWI sentencing is treated the same. This article helps explain DWI sentencing and why it is important to have a capable OBX DWI lawyer on your side when facing a drunk driving charge.

A DWI conviction in the Outer Banks will be sentenced at one of six levels. Here are the levels from most severe to least severe:

DWI Sentencing Levels

Level A1 DWI

Also known as an Aggravated Level One, this sentence requires the judge to order imprisonment of 12 months minimum to 36 months maximum. The judge can suspend the sentence if the defendant is imprisoned for at least 120 days as a condition of special probation. Alternatively, the court can allow continuous alcohol monitoring via a “CAM bracelet” for a minimum of 120 days, up to the entire period of probation. The defendant must also obtain a substance abuse assessment and comply with education and treatment. A fine of up to $10,000 is authorized.

Level 1 DWI

This sentence requires the judge to order imprisonment of 30 days minimum to 24 months maximum. The judge can suspend the sentence if the defendant is imprisoned for at least 30 days, or alternatively, the defendant can be imprisoned for 10 days as a condition of special probation followed by continuous alcohol monitoring via a “CAM bracelet” for a minimum of 120 days, up to the entire period of probation. The defendant must also obtain a substance abuse assessment and comply with education and treatment. A fine of up to $4,000 is authorized.

Level 2 DWI

This sentence requires the judge to order imprisonment of 12 days minimum to 12 months maximum. The judge can suspend the sentence if the defendant is imprisoned for at least 7 days, or alternatively, the defendant can required to submit to continuous alcohol monitoring via a “CAM bracelet” for a minimum of 90 days, up to the entire period of probation. If the Level 2 punishment is based on a prior DWI conviction or DWLR for an impaired driving revocation and the prior conviction occurred within five years, the judge must require 240 hours of community service if no imprisonment is imposed. The defendant must also obtain a substance abuse assessment and comply with education and treatment. A fine of up to $2,000 is authorized.

Level 3 DWI

This sentence requires the judge to order imprisonment of 72 hours minimum to 6 months maximum. The judge can suspend the sentence if the defendant is imprisoned for at least 72 hours or, alternatively, the court can allow the defendant to complete 72 hours of community service in lieu of jail time. The defendant must also obtain a substance abuse assessment and comply with education and treatment. A fine of up to $1,000 is authorized.

Level 4 DWI

This sentence requires the judge to order imprisonment of 48 hours minimum to 120 days maximum. The judge can suspend the sentence if the defendant is imprisoned for at least 48 hours or, alternatively, the court can allow the defendant to complete 48 hours of community service in lieu of jail time. The defendant must also obtain a substance abuse assessment and comply with education and treatment. A fine of up to $500 is authorized.

Level 5 DWI

This sentence requires the judge to order imprisonment of 24 hours minimum to 60 days maximum. The judge can suspend the sentence if the defendant is imprisoned for at least 24 hours or, alternatively, the court can allow the defendant to complete 24 hours of community service in lieu of jail time. The defendant must also obtain a substance abuse assessment and comply with education and treatment. A fine of up to $200 is authorized.

Why It’s Important to Have a Competent DWI Lawyer on Your Side

When a judge determines which sentence is appropriate after a DWI conviction, the court must consider all grossly aggravating factors, aggravating factors, and mitigating factors. As required by the DWI sentencing statute, the judge must then weigh all of these factors in determining the sentence. The prosecutor must present all grossly aggravating and aggravating factors to the judge, while it is up to the defendant and his or her lawyer to counter with mitigating factors.

With so much at stake, it is clear to see why anyone charged with a DWI needs a lawyer by their side to ensure the best outcome possible. If you need to talk to a lawyer about a DWI in the Outer Banks, Currituck, or Elizabeth City area, please feel free to give me a call.

Nothing ruins a vacation like a DWI arrest, especially when the arrest includes the loss of a driver’s license. When someone has been charged with DWI in Dare County, NC, you need to know what you can do about the automatic license revocation. This post helps to explain your options.

In the Outer Banks of North Carolina, being charged with a DWI has immediate consequences. Behind the mortifying arrest and bonding out process, the second most severe consequence is the loss of your license. This is known as a “civil license revocation.”  Notice that crafty name includes the word “civil.”  That is because it is purportedly intended to “prevent unsafe and unfit drivers from operating vehicles and endangering the citizens of North Carolina” – not as punishment. If the pretrial license revocation was called a criminal revocation, it would trigger Constitutional protections like the presumption of innocence and would not be upheld in a legal challenge.

So, after a defendant has made it out of custody, what can be done to get back on the road? The answer (like most legal questions) is that it depends.

When a person is taken into custody and brought to a town police station or to the Dare County Sheriff’s Department for testing, law enforcement must inform a defendant of the following:

Your driving privilege will be revoked immediately for at least 30 days if you refuse any test or the test result is 0.08 or more, 0.04 or more if you were driving a commercial vehicle, or 0.01 or more if you are under the age of 21. “

Breath Testing

For those whose license is revoked because they did submit to breath testing, law enforcement does not tell you that you may apply to the court for a pretrial limited privilege after 10 days of revocation. In other words, if your license is civilly revoked for 30 days, you must not drive for the first 10. After 10 days, you can petition the district court to grant you limited privileges to drive for 20 days. In order to be eligible, you must jump through a number of hoops before appearing before a judge. If the privilege is granted, when the 20 days are up (30 days from the date of arrest) you can simply go to the Dare County Clerk of Court and have your full license restored by paying $100 civil revocation fee.

Refusal

For those who accused of a refusal of breath, urine, or blood testing, NC DMV will notify the defendant by mail that the person’s license to drive is revoked for 12 months, effective on the tenth calendar day after the mailing of the revocation order unless, before the effective date of the order, the person requests in writing a hearing before the Division of Motor Vehicles. If you have any desire to challenge your refusal as not being “willful,” this time period is critical. You should certainly consider hiring a lawyer at your earliest convenience to plan to challenge the revocation.

Federal

If you are charged with DWI by a federal Park Ranger on Cape Hatteras National Seashore, including in Ocracoke, your license suspension is going to be controlled by a U.S. District Court Judge. To have your privilege restored, you must file a written motion with the court. This will very likely have to be done by an experienced lawyer. Please give us a call to discuss federal DWI charges.

If you are charged with a DWI, it is always a great idea to contact a lawyer very early in the process. It is our job to walk you through the process and explain all the potential outcomes. Knowing what kind of penalties you are facing and your chances of avoiding a conviction will help to ease much of the stress caused by the DWI arrest. If you are charged with a DWI in Dare County, call us at (252) 715-5785 and let’s see if we’re the right fit for your case.

Photo Credit: Lenny Ignelz

By Bill West, The Daily Advance

CURRITUCK — The N.C. Court of Appeals has reversed and vacated the guilty plea of a former Currituck County emergency medical technician convicted in 2014 of hiding recording devices in an alarm clock in the women’s bunk room at the Lower Currituck Fire Station in Grandy.

In a unanimous ruling on Tuesday, the court concluded Timothy Allen Ladd Jr. did not give his consent to Currituck law enforcement officials to search the contents of a computer’s external hard drive found in a nylon bag. The search revealed video images of four or five women who either were undressing or naked.

The appeals court appears to have sided with arguments made by Ladd’s defense attorney in Superior Court, Danny Donahue of Elizabeth City. Donahue had argued the Currituck Sheriff’s Office violated Ladd’s Fourth Amendment right to be free from unreasonable searches.

Donahue claimed in court documents that Ladd had consented to a search of his laptop and a smartphone, as well as to the search of a second laptop found on the floorboard of his vehicle. The searches apparently did not turn up any incriminating evidence, but a search by a Currituck sheriff’s detective of the contents of the nylon bag containing the first laptop revealed numerous external storage devices.

Donahue claimed that without Ladd’s consent, the detective and a sheriff’s deputy decided to search the storage devices and then used the material they found to file criminal charges against Ladd.

Reached Wednesday evening about the court’s decision, Donahue said he wasn’t surprised by the ruling. He said Gordon Widenhouse, a Chapel Hill attorney who represented Ladd in the appeal, had notified him of it.

“It all came down to the scope of the consent that was given,” Donahue said. “He (Ladd) consented to the search of his laptop and a cell phone – and the search itself exceeded (the consent that) was given.”

Based on constitutional law, Donahue said, “law enforcement in Currituck probably should have erred on the safe side and gotten a warrant to look at anything else, in and around the bag.”

Reached Wednesday, Currituck Sheriff Susan Johnson said she was not aware of the appeals court’s ruling.

“Well, that’s one step in the process and we probably will appeal that decision,” she said.

Johnson said she would be contacting the District Attorney’s Office on Thursday to learn more about the court’s ruling.

Currituck law enforcement officials began investigating Ladd in December 2013 after a female employee of Currituck Fire/Emergency Medical Services discovered an alarm clock on the windowsill of the women’s bunk room at the fire station in Grandy. Two other female employees also said they had noticed the clock.

The clock was found to contain an audio and video recorder which was activated when the clock’s sensor picked up a motion or noise. Ladd was suspected of placing the clock in the room because he had slept there when he worked the overnight shift.

Ladd was placed on leave and then fired. In February 2014, a Currituck grand jury indicted Ladd on seven counts of felonious use of a photographic device to gratify sexual desires.

Superior Court Judge J.C. Cole later denied Donahue’s motion to suppress incriminating evidence in the case against Ladd. Cole ruled that Ladd had freely given consent to the search of his property and that Ladd had no expectation of privacy for the items he surrendered to the custody of the Currituck Sheriff’s Office.

In a plea agreement with the District Attorney’s Office, Ladd conditionally pleaded guilty to felony secretly peeping into an occupied room. As a condition for his guilty plea, Ladd was given the right to appeal Cole’s decision to deny Donahue’s motion to suppress evidence in the case.

Cole suspended Ladd’s active jail sentence and ordered him placed on supervised probation.

In its ruling on Tuesday, the Appeals Court concluded Ladd had retained a reasonable expectation of privacy to the contents of the storage devices found inside the computer laptop bag.

Donahue said he didn’t blame Cole for not suppressing the evidence when the matter was before the Superior Court.

Donahue said he’s assuming that after the appeals court’s decision is certified, the case will return to Superior Court where ”we’ll dispose of it there.”

Whether Daniel Donahue is a “Harvard-trained lawyer” might be debatable but in late July 2015, Mr. Donahue joined members of the National College of DUI Defense, Inc. for an intensive one week DUI seminar in Austin Hall at the Harvard Law School.  Members from around the country joined for this meeting to discuss the newest, most cutting-edge defenses in the nation.  The focus of the week was making sense of the science that is used in DUI/DWI testing and how to challenge it.

Donahue says, “You cannot make sense of the science because it is all pretty flawed.  It was eye-opening to be part of a large group of professionals who all understood that much of DWI science is “junk-science” geared at convictions and revenue.  I walked away more knowledgeable and proud of the fact that if we lawyers are able to teach judges and juries some of what we know, we can really help the people who deserve it.”

Donahue is now back in northeast North Carolina defending DWI and other criminal cases throughout the Elizabeth City and Outer Banks region.

Daniel Donahue, along with nine other National Association of Criminal Defense Lawyers members and their guests gathered Jan. 19, 2016, in the nation’s capital at the U.S. Supreme Court for NACDL’s group admissions ceremony. NACDL President E.G. “Gerry” Morris made the motion for admission to the Supreme Court Bar. Pictured from left to right are Linda Lee McCausland, Britt Morton Cobb, Robin Sax Katzenstein, Julio A. Jaramillo, Gerry Morris, Daniel P. Donahue, Gabriel Reyes, Don A. Thompson, Cynthia C. Chappell, Sarah Thomas Kovoor, and Jessica N. Carmichael.