YOUNG ADULTS AND ALCOHOL LAWS

YOUNG ADULTS AND ALCOHOL LAWS

By Kim K. Steffan, Attorney

 

Here are four terms that are important to understand criminal liability of adults and underage (under 21) persons.  How many of them do you know: “no exceptions state,” “zero tolerance,” “Good Samaritan,” and “400%”?

  1. As a “no exceptions state,” NC makes it a crime (a misdemeanor) for an adult to provide alcohol to someone under 21 for any reason, anywhere. There is no parent-child exception, at-home exception, or a dinner-table exception. Penalties include fines, community service, and possible jail time.
  2. North Carolina is a “zero tolerance” state for underage drinking and driving. It is illegal for an underage person to drive with any alcohol in his system, or while drinking alcohol. If alcohol is detected when the young person is stopped, his license is immediately suspended for 30 days, with a $100 fee to get it back; if convicted, he has a one year license suspension (and if under 18, no limited driving privilege), community service or jail time, a fine of up to $1,000, court costs of at least $190, plus his attorney’s fees.  This conviction may have to be disclosed on college applications, job applications, rent applications, etc.
  3. There are two places where the “400%” appears in this column. If convicted of underage drinking and driving, expect vehicle insurance to increase by about 400% for three years.
  4. If someone under 21 is convicted of purchasing or trying to purchase alcoholic beverages, it means a one year license revocation (which may be surprising, since the offense doesn’t involve driving) with no limited driving privilege, community service or jail time, court costs of $180, a fine, and attorney’s fees if a lawyer is retained. Vehicle insurance rates go up as well.  Penalties for underage drinking include community service or jail, a fine, court costs, and possible attorney’s fees.  Any criminal conviction can cause problems with applications for employment, college, or apartment rental.
  5. NC has a “Good Samaritan” law protecting from criminal prosecution someone who calls for emergency medical help for another person who appears to be having a drug-related overdose, including alcohol poisoning. To get this protection, the caller must give her name to the 911 operator, and must stay with the victim until help arrives.  The victim also receives immunity from criminal prosecution.  If a medical emergency like this happens at a party, fear can cause deadly inaction.  It is important to know that you can and should call 911.
  6. What’s the other “400%” reference? Orange County District Court records show that, from 2010 to 2015, prosecutions for adults who gave alcohol to someone under age 21 have gone UP by 400%.  Orange County law enforcement and courts take this offense seriously.  Alcohol contributes to the three leading causes of death among youths 12 -20 years old (unintentional injury, homicide, and suicide).  Alcohol consumption by high school students tends to spike around prom and graduation.  The most common place teens get alcohol is parents’ homes (theirs’ or their friends’).

 

Knowing the law may help keep you and those you love out of trouble, and from suffering potentially life-changing consequences.  Thanks to Gayane Chambless of the Orange Partnership for Alcohol and Drug Free Youth for assisting with resources for this column.

 

EXPUNGING CRIMINAL RECORDS FOR YOUNG DEFENDANTS

You may know someone who committed a youthful mistake resulting in a criminal record.  That someone may even be you.  Even if you’ve had a clean record since, this history can interfere with getting a job, renting an apartment, obtaining a professional license, or establishing favorable child custody rights.  Wouldn’t it be great to make this record go away?  For many charges and/or convictions of juveniles or young adults under 21, it is possible to make them go away by a process called “expungement” or “expunction.”

  • Delinquent or Undisciplined Juveniles (e.g., “found guilty” of skipping school, being where minors are not allowed, driving a car without a license, running away, etc.): You can have these records expunged by applying after you are 18, provided you were not found guilty of any later crimes as a juvenile or as an adult.  It is not available to serious crimes (Class A through E felonies).
  • Juvenile Whose Case was Ultimately Dismissed: If you were charged with a crime or alleged to be delinquent or undisciplined but the case was dismissed (including where you completed a deferred prosecution program), you can apply to expunge the charges any time after you are 16.
  • Conviction of Misdemeanor Under 18:  If you were convicted of a misdemeanor like simple assault or shoplifting when under 18, you can expunge the record if you wait two years to apply, and if you don’t have any felony or misdemeanor convictions within that time (except minor traffic offenses).  You are not eligible if the offense involved impaired driving, however.
  • Conviction of Non-Violent Felony Under 18:  If you were convicted of a non-violent felony when under 18 (e.g., felony larceny, felony drug offenses), and if this is the only conviction on your record, you can have it expunged.  To be eligible, you must also perform 100 hours of community service. Expungement is not available for offenses involving impaired driving. The waiting period to apply is four years after conviction (if no sentence was imposed) or four years after finishing probation or incarceration.
  • Conviction of Misdemeanor Possession of Alcohol Under 21:  This can be expunged by waiting two years from the conviction (or from completing probation) to apply, if you do not have any misdemeanor or felony convictions during that time (other than minor traffic offenses).  Note that driving while impaired convictions are not eligible for expungement, regardless of age.
  • First Offender Conviction of Certain Toxic Vapors/Drug Paraphernalia Charges Under 21:  This conviction can be expunged if you completed a first offenders program for toxic vapors or drug paraphernalia. Alternatively, apply more than 12 months after conviction.  You also must have a clean record of no misdemeanor or felony convictions since the original offense (except for minor traffic offenses).
  • Certain Gang Offenses Under Age 17: Expungement is available if this is your only felony or misdemeanor (other than minor traffic offenses) during the minimum two years between your conviction (or completion of probation if you were placed on probation) and your application. You are also eligible for expungement if your charges were dismissed under a conditional discharge for first time offenders program.
  • Dismissal or Not Guilty Due to Identity Theft:  At any age, if misdemeanor or felony charges were dismissed or you were found not guilty as a result of someone fraudulently giving your name to police, you can have the charge expunged.

 

If you have a charge or conviction expunged, you can and should respond to questions about your criminal background as if this event never happened.  That’s the purpose of expungement.

Some expungements are simple, with forms available from the Clerk.  In other circumstances, expungement is more complicated, and you will likely want an attorney to help you.  Some expungements require a Clerk’s fee, and some do not.  More information is available from the Clerk of Court or from an attorney.  Steffan & Associates, PC can assist you in successfully navigating an expungement.

NC DRONE LAW

NC DRONE LAW
In recent years, more uses for drones (technically “unmanned aircraft”) have been developed. Farmers want them to identify where water or fertilizers are needed. Law enforcement envisions using them in criminal investigations. Private investigators could use them in surveillance. News organizations want to have them photograph dangerous places, like storm aftermath or riots. Amazon would like them to deliver packages to your house. A new state law took effect October 1, 2014 limiting the use of drones.
Note that the Federal Aviation Administration (FAA) has its own rules about drone use. The FAA is still developing rules, but basically a drone cannot be used for commercial or business purposes without an FAA permit. Under both federal and state laws, it is generally lawful for anyone to use model aircraft under 55 pounds in the sight of the operator on property where he has permission, away from manned aircraft, for recreational purposes.
The rest of this article assumes that the drone operator has an FAA permit, and assumes that the operator seeks to use the drone for something other than recreational purposes. A NC Department of Transportation license must be obtained before using a drone for commercial purposes. Under the new law, a person, company, or government agency may use a drone to conduct surveillance of any person, dwelling, or land only with the consent of the person or of the owner of the dwelling or land. Permission of the landowner is required to launch or retrieve a drone from their property. Without permission, no one may use a drone to photograph any individual for the purpose of publishing or disseminating the image. There is an exception for news agencies photographing newsworthy events or places where the public is generally invited.
Special rules for law enforcement attempt to apply existing laws about warrants to drones. If officers get a warrant based on probable cause, they don’t have to rely on these exceptions. Just as a police officer can search in plain sight (e.g., in an open front yard) without a warrant, an officer’s drone can view and photograph in plain sight. Since warrants aren’t required when an officer has a “reasonable suspicion” that quick action is needed to swift action is needed to prevent imminent danger to life or serious damage to property, to prevent the imminent escape of a suspect or the destruction of evidence, to conduct pursuit of an escapee or suspect, or to facilitate the search for a missing person, a drone can also be used without a warrant for these purposes.
Some privacy advocates worry about police using drones to photograph protestors. The new law allows officers to use drones to photograph gatherings to which the general public is invited on public or private land (e.g., if the protestors are gathered on a public street). If the protestors hold a closed meeting at someone’s home in order to plan an upcoming gathering, drones cannot lawfully take those photos without consent. However, consistent with federal law, police may use drones without a warrant to counter a high risk of a terrorist attack by a specific individual or organization if the US Secretary of Homeland Security or the Secretary of the NC Department of Public Safety determines that credible intelligence indicates that such a risk exists. If police gather evidence in violation of the statute, it is not admissible in criminal court unless the court determines that it was “obtained or collected under the objectively reasonable, good-faith belief that the actions were lawful.”
The new law makes it a criminal offense to use a drone to disrupt a manned aircraft, or to disrupt someone who is lawfully hunting or fishing. It is also a criminal offense to distribute images taken by a drone without the consent of the person photographed or the owner of the property photographed. If you are the victim of unlawful surveillance or photography, you may seek a Court injunction to stop it. You may also sue in civil court for actual damages. If the case involves disseminating photos, you may choose to sue for $5,000 per image instead of proving damages. Because technology changes rapidly, we should expect to see further development in federal and state laws concerning drones.

HOMEOWNER LIABILITY

Falling trees? Holes in the ground? Playground equipment? Have you ever thought about the liability issues you might face as a homeowner? There are many. Insurance helps in some cases, but not all.
A tree on your property falls into the middle of your neighbor’s house. Are you liable? It depends (which is the lawyer’s favorite answer). If the tree was healthy and came down unexpectedly, like by a lightning strike, no, you are not responsible for the damages. You weren’t negligent, and you haven’t done anything wrong. On the other hand, if you knew or should have known that the tree trunk had rotted, you would have had an opportunity to fix the problem. In that case, you would be liable because you have been negligent. Many insurance policies would cover this type of liability. If you see a neighbor’s tree is becoming dangerous, it is best to alert our neighbor politely. Preventing the problem is better than figuring out who must pay for the damage.
What if your friend has a two foot wide hole dug in her yard as part of a landscaping project, and you fall into it, tearing ligaments in your leg? Is your friend liable for your damages? If the hole was clearly visible, then no, because the law says you should have seen the danger and avoided it. If the hole was concealed or hidden, so you reasonably would not have seen it, then your friend was negligent, making her liable. Even if the fall was your fault, there may be a little bit of help for you. Your friend’s homeowner’s insurance may have what’s called “medical payments” or “medpay” coverage. Medpay is a small medical benefit payable to anyone who has medical bills from being injured on your property, no matter whose fault it was. Medpay is usually limited to about $1,000 in reimbursement paid when the injured person submits medical bills to the insurance company.
Your child’s friend comes over to play on your playground set, and takes a fall. If you have kept the playground equipment in a reasonably safe condition and if you are supervising play appropriately for the children’s ages, you aren’t legally responsible.
Intentional acts are usually not covered by insurance. If your college age teen has friends over and a fight breaks out in which he slugs his now-former friend, this is an assault. Other than medpay, your homeowners’ insurance isn’t likely to pay for the damages. If the injuries are serious, the damages may be substantial, and your teen is legally liable for them without any real help from insurance.
Do you have homeowners’ insurance? Sometimes I hear a client say that she plans to cancel her homeowners’ insurance policy to save money now that her mortgage is paid off. Mortgage lenders always require homeowners’ insurance to protect their loan investment in the property. Upon further thought, the client may realize that homeowners’ insurance is still important to protect her own investment in the home even though there is no lender to require it. The policy protects her if someone is hurt on the property, and pays to rebuild in the event of a fire or catastrophic storm. Good insurance coverage can help a homeowner sleep better at night.

Ask The Lawyer: Don’t Let Facebook Sink Your Case

More often than you might think, I’ve seen someone do serious damage to their legal case thanks to Facebook, Twitter, or other online posts.  Many people think of their social media lives as a vital part of their real lives.  They post like they always have, without thinking about the harm they do to their legal case.  Problems are most common in injury cases and in family law cases.  Here’s what to watch out for.

            Social media seems to encourage many people to boast or exaggerate.  This can harm people with legitimate personal injury claims.  Consider what happens if you post a photo that makes it look like you aren’t hurt as badly as your case claims.  Maybe you post a photo that looks like you are playing with your church softball team.  You may have just posed for one still photo at home plate because your leg injury is too painful to play yet.  When the insurance company defending the claim puts the photo into evidence, how will the jurors know the truth?  As another example, suppose you upload your photo with friends sitting on a boat, and you write, “having a great time – water skiing, wings, and good friends.”  With your back injury, you may be the only one not water skiing, but the insurance company will use the post to argue that’s exactly what you were doing. 

            Social media posts and even passwords are fair game in discovery in court cases.  If you’ve posted it or your friends have commented on it, the insurance company can likely find out about it. 

            Online posts can also hurt your separation and divorce case.  Many a cheating spouse has accidentally proven his or her own affair this way.  Some people can’t resist posting photos taken with their new love interest.  Although your accounts may be set as private, it is not uncommon for one of your Facebook friends to share your posts with your ex.  If you aren’t yet separated, a web page or email left open on a home computer can reveal an affair. 

            Custody cases can also be complicated by social media.  Even if you aren’t really a party animal, will your exaggerated posts make it look like you are given to alcohol, drugs, or staying out all night?

            The best advice if you are involved in an injury case or a separation/divorce case is simply not to post to social media sites at all, and never to put photos or videos online until your case is over.  As the old saying goes, an ounce of prevention is worth a pound of cure.  If you find that impossible, be very careful.  Evaluate everything you write and every photo you upload as if the person or company on the other side of your case sees it and draws the worst possible conclusion.  If that worst conclusion is still all right, then you may be safe. Also, don’t post or reply when you are angry, hurried, or tired.  You may not be as careful then as you would under better circumstances.  If you are involved in a case, talk to your attorney about protecting your case from social media disaster.

Be Smart with Lottery Ticket Pools

     Big lottery jackpots prompt many people who don’t usually play the lottery to buy tickets.  Buying tickets in a pool with friends or co-workers can be attractive as a way to increase your chances of winning.  If you want to join in, there are things you can do to prevent problems.  While the common saying, “get it in writing” is a good idea, there’s a little more to it than that.

     “Getting it in writing” is the best starting point.  Have every pool member sign the written agreement.  Be sure all pool members are over 18.  The agreement should state that the group is buying lottery tickets together, and how any winnings will be split.  If there is a schedule for buying tickets with due dates for contributions, specify it.  Then, stick to it.   You will have a problem if you sign an agreement that everyone signing the agreement splits proceeds equally, and then it turns out one person didn’t turn in their money in time for the purchase.

     The next problem is how to know that a particular lottery ticket is a group ticket, rather than the purchaser’s individual ticket.  Here are some options to prevent confusion (whichever one or more you choose should be spelled out in the written agreement):

1.  Have a person buy group lottery tickets who does not buy individual tickets for himself or herself.

2.  Purchase group lottery tickets at one store, and individual tickets elsewhere.

3.  Make copies of the group tickets (or scan and email them) to distribute to all pool members ahead of the drawing.  If it is an office pool, be sure the boss approves using the copier or company email for this purpose; if not, make your copies elsewhere and/or send email from home to personal email addresses. 

     As Grandma said, an ounce of prevention is worth a pound of cure (and is better than litigating with your friends or co-workers).  Good luck!

What is “Alternative Dispute Resolution” and How Does it Work?

“Alternative Dispute Resolution” (ADR) includes methods designed to resolve a legal matter without having a full-blown trial in a courtroom. The purpose is to save parties time and money in resolving disputes. One type of ADR also allows parties a voice in the result, rather than hearing a decision rendered. When I was in law school, ADR was barely thought of; cases were either settled by the lawyers or tried in court. In my 17 years of practice, the importance of ADR has risen dramatically. Now, most courts have rules requiring a formal dispute resolution attempt before trial.

Mediation is a very popular and successful type of ADR. In mediation, the parties and attorneys meet with a mediator to try to reach a settlement. The mediator does not make a decision like a judge. The mediator helps both sides recognize the strengths, weaknesses and risks in their case, and aids in communication. Because settlement is the goal, the parties have control in crafting the solution to their case, rather than having a decision handed to them. Depending on the type of case, court-mandated mediation settles about 70-75% of cases. Mediators can be free (e.g., the Orange County Child Custody Mediator, Judicial Settlement Conference in property division cases) or available at a nominal charge (e.g., the County Dispute Settlement Center). Mediators in some cases can be more expensive, e.g., $125-150/hour for attorney mediators for superior court or workers’ comp cases.

Arbitration is another form of ADR. In arbitration, the lawyers and parties hold a “mini-trial” before the arbitrator, who serves like a judge. Arbitration can be binding (final) or non-binding (subject to further hearing or appeal). The “mini-trial” is shorter and less formal than a regular trial. If the court orders arbitration, the arbitrator may be paid by the parties jointly, or by one party, depending on the case, at rates usually $125-150/hour. In district and superior court non-binding arbitration, if a party is unsatisfied with the decision, he/she can still demand a judge trial. If that happens, unfortunately, arbitration has only increased the parties’ expense, since their lawyers have to try the case twice. If the parties arbitrate because a contract requires it, arbitration with a private agency like the American Arbitration Association can be very expensive. By comparison, filing and court fees for using a courtroom trial are minimal since that system is funded with tax dollars. Thus, depending on the details of arbitration, it may or may not save expense compared to going to court.

With the parties’ consent, judges may allow trial procedures that save time and money. For example, the parties and the judge might agree on a time limit for each side to present evidence.

ADR is here to stay. With a few exceptions, ADR has proven beneficial to parties with legal disputes. With more cases being resolved in ADR, lawyers, judges and parties appreciate the benefit of less crowded court dockets, meaning they are able to hear sooner those cases that really do need a trial.

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