Where Can I Take A Service Dog?

Perhaps you have a service animal or support dog, or maybe you manage a business – have you wondered where the law allows these animals to go? You may be surprised to know there is a difference between “service animals” and support animals or therapy animals. Only true service animals have legal protection.

The federal Americans with Disabilities Act (ADA) and the NC equivalent require that service animals be permitted in virtually all places where the public is allowed. Most often these are service dogs. The dog must have been individually trained to take a specific action when needed to assist the person with a disability. For example, a person with diabetes may have a dog trained to signal when blood sugar is low. A person with depression may have a dog trained to remind her to take medication. A blind person may have a dog that assists with safe mobility. There is no legal requirement to have an ID card or a specific collar, harness, or vest to identify a service animal. There is no requirement that a service animal be registered. The NC Department of Health and Human Services has a voluntary registry. One way (but not the only way) to establish that an animal is a service animal is to show this registration card.

Emotional support, therapy, comfort, or companion animals are NOT considered service animals under the ADA. These terms are used to describe animals that provide comfort just by being with a person. Because they have not been trained to perform a specific job or task, they do not qualify as service animals under the ADA or under NC law. Because the public often doesn’t understand that there is a difference between service animals and support animals, some businesses choose to err on the side of customer relations in allowing support animals as long as they do not cause a disruption.

If someone’s dog calms them during an anxiety attack, it may or may not qualify as a service animal. The ADA distinguishes between psychiatric service animals and emotional support animals. If the dog has been trained to sense that an anxiety attack is about to happen and take a specific action to help avoid the attack or lessen its impact, that would qualify as a service animal. However, if the dog’s mere presence provides comfort, that would not be considered a service animal.

If it is not obvious if a dog is a service animal, a business may ask only two questions: (1) is the animal required because of a disability? and (2) what specific work or task related to a disability has the dog been trained to perform? Staff are not allowed to request documentation for the dog, require that the dog demonstrate its task, or inquire about the nature of the person’s disability.

If a particular service animal is out of control (e.g., aggressive behavior, jumping, running around, uncontrolled barking) and the handler does not take effective action, or if the animal is not housebroken, staff can request or insist that the animal be taken out. The handler is responsible for any damage the animal causes. Service animals are specifically permitted in the public areas of restaurants; this ADA requirement trumps local health regulations about animals in restaurants.

The ADA allows damages in federal court and/or enforcement action by the Department of Justice. Under state law, NC Persons with Disabilities Act makes it unlawful to disguise an animal as a service animal, and unlawful to deprive a person with a disability or a person training a service animal of any rights granted by law or to charge any fee for the use of the service animal; violation is a Class 3 misdemeanor.

Kim K. Steffan is an attorney with Steffan & Associates, P.C. in Hillsborough. She can be reached at 919-732-7300 or kim.steffan@steffanlaw.com.

2018 Judicial Election Recommendations

In mid-term elections, fewer people tend to vote, meaning your vote is more important than ever. Early voting starts October 17, with election day on November 6.

I am writing with my recommendations on judicial elections and on the constitutional amendments that affect judicial issues.  You’ve heard me say before that I don’t care whether a judge is a Republican or Democrat, and in fact, I don’t want to be able to tell a judge’s politics by the decisions he/she makes.  I favor judges who are well-qualified, who have a judicial temperament, who will give each party in each case a fair shake, and who will treat all parties and attorneys with respect.

Judicial Election Recommendations:

Supreme Court – Anita Earls

Court of Appeals – Toby Hampson, John Arrowood, and Allegra Collins

I am pleased to tell you that I have known Toby Hampson personally for years and have had cases with and against him over time.  He practices in Raleigh.  Among other qualifications, Toby is a Board Certified Appellate Law Specialist.  His demeanor is well-suited for serving as a judge.  I am glad he is running for Court of Appeals, as he will do an excellent job.

John Arrowood is an incumbent on the Court of Appeals.  As his opinions reflect, his work before the Court involved representing both individuals and businesses in many different areas of law.  He has done a good job.

Allegra Collins is an appellate practice specialist and a professor of appellate law.  She has served on the State Bar’s Appellate Rules Committee.  Her experience is much stronger and more broadly based than her opponents’.

Anita Earls has a background in private practice (much of it in appellate work) and as a Deputy Assistant Attorney General in the U.S. Justice Department.  She is also a law professor.  As for her main opponent, I’ve never quite gotten over incumbent Justice Jackson dismissing an appeal in 2006 (Stann v. Levine) because the appealing party’s font size was too small – still readable, but too small.  That’s not right, and is an example of Justice Jackson’s temperament and approach.

I will offer my recommendations on Constitutional Amendments 5 and 6 because they relate to judicial issues:

Vote NO on the Judicial Vacancies Amendment (#5) – It would allow the legislature to pick the judges who will end up ruling on the validity and constitutionality of the laws the legislature passes, i.e., permitting the fox to guard the hen house. Despite the title, there is no merit selection involved, just legislature selection.

Vote NO on the Board of Ethics and Elections Amendment (#6) – It would harm the historic separation of powers between legislature and governor, and it would create an 8-member board which, if deadlocked, could literally do nothing to investigate ethics and elections laws violations.  The current 9-member Board is more effective.

All prior NC Governors and past Supreme Court Justices, Republicans and Democrats, urge voting no on these two amendments.

If you live in Orange County, here’s a link to early voting sites: http://www.orangecountync.gov/1116/Early-Voting

However you decide to vote, please exercise your right to do so.

SCAMMERS FROM THE LEGAL WORLD

By Kim K. Steffan, Attorney

 

It seems that scammers are everywhere.  The legal world is no exception.  Here are some to be aware of.

The Jury Duty Scam:  Please know that the Clerk of Court or Sheriff will never call or email you demanding money if you’ve missed jury duty. In the scam, a caller or an email says that you have missed jury duty.  They threaten to arrest you if you don’t pay your “fine” by credit card over the phone or by sending a prepaid debit card the next day.  In reality, if you don’t appear after you’ve been properly served with a jury duty summons, the Clerk’s office will serve you with a follow-up notice requiring that you appear for a contempt hearing at which a fine is possible. However, if you contact the Clerk’s office with a good reason and ask them to reschedule your service, that will usually resolve the problem without a fine.

The New Business Scam:  When a new corporation or LLC is formed by filing Articles with the NC Secretary of State’s office (which is a public record), scammers contact the new businesses telling them they are required to have a “certified copy” of their Articles, which the company will do for a fee.  You don’t need that.  You will automatically receive a file-stamped copy of your Articles directly from the Secretary of State, and that makes your business official.

Tax Scam:  A phone call or email pretends to be from the IRS. You are told that you’ve failed to pay taxes that are due, and you’ll be arrested if you don’t pay now by credit card or prepaid debit card.  Please know that if you owe unpaid taxes, the IRS will send you multiple letters explaining the problem and asking you to get in touch with them.  They will not call or email you out of the blue.  Scammers are good at making the phone number on caller ID or the email address look official.

Speaking of taxes, although the companies that advertise heavily about dealing with the IRS on your behalf are legitimate businesses and not a scam, there may be a better option. Before hiring one of them, consider the free IRS Taxpayer Advocate office. They can be found at www.taxpayeradvocate.irs.gov or at 336-574-6119 for their NC office located in Greensboro. It is a special department within the IRS that does nothing but assist taxpayers who have common problems like not being able to pay their taxes or not filing returns. They are not IRS collection agents. If you are not satisfied after talking to the IRS Taxpayer Advocate, consider hiring an individual accountant or tax attorney to represent you to the IRS, depending on the nature of your tax problem.  Clients tell me they generally get better customer service with one of those individuals than with the large companies who advertise heavily.  By the way, I’m not a tax lawyer, so I don’t represent clients before the IRS, but I can refer you to a tax lawyer who will treat you right.

 

Kim K. Steffan is an attorney with Steffan & Associates, P.C. in Hillsborough.  She can be reached at 919-732-7300 or kim.steffan@steffanlaw.com.

HIRE AN ATTORNEY OR DIY?

One common question is when a lawyer is really needed versus when someone can/should handle a matter on their own (perhaps with online resources or borrowing a friend’s document).

Yes, we lawyers know that legal services not cheap (but we did go through three years of law school and suffer through the bar exam to acquire our expertise).  If a legal need arises unexpectedly or isn’t in your budget, it can be tempting to try to save money by not hiring a lawyer.  Sometimes that works better than others.

What about a traffic ticket?  If it is a simple speeding ticket after a pretty clean record, in NC, you can usually successfully seek a reduction in court yourself.  Having a lawyer is a convenience so you don’t have to miss work and wait in court.  On the other hand, if you have a more serious ticket, if you have a record, or if you are a young driver, a lawyer can give you important advice about your choices, and help implement the best one.

What about a divorce?  In NC, if you and your spouse have been separated over a year and you are absolutely sure that there are no issues of property, debts, or spousal support, then a do-it-yourself divorce is likely fine. In those cases, a lawyer is a convenience to save you time and effort. However, without particular wording included, in NC the divorce judgment cuts off the right to have the court deal with property, debt, and spousal support.  I have seen the after-effects of a DIY divorce where a party learns too late that she could have had her husband’s retirement benefits divided or could have claimed alimony, but she lost those rights by not having a lawyer prepare the divorce judgment.  Retirement plans and cash value life insurance are the most commonly overlooked assets in DIY separations and divorces.  I am sometimes asked to try to “fix” a signed DIY separation agreement that didn’t include everything it should have or was ambiguous about important details.  Sometimes there is a remedy, but this is usually more expensive than if a lawyer had prepared the agreement originally. However, sometimes the person is stuck with the unhappy results of their own work, and no change is possible.  I sometimes see DIY separation agreements that clients think are valid but aren’t, because the person didn’t realize that NC requires signatures on these agreements to be notarized.

Online resources market to small business owners for incorporations, LLCs, and contracts.  The same is true for wills for individuals.  The risk is that, without talking with a NC attorney in detail, you don’t always know what you don’t know.  In these matters, you aren’t paying a lawyer to be your typist; you are paying a lawyer to ask questions or to offer alternatives you would not have known about otherwise.  Particularly when preparing wills or business contracts, clients frequently tell me that I’ve raised important questions or options that they did not know about even if they have read online or library resources.

Also, it is worth considering how bad the worst-case scenario is. If a small, short-term purchasing contract goes badly, it may be easy enough to deal with another supplier next time. On the other hand, if you have a faulty incorporation and someone sues your business, you may see a judge pierce the corporate veil, meaning the claimant can go after your personal assets.  With a poorly drafted will or separation agreement, the legal fees involved in litigating it or trying to straighten it out can dwarf the cost to have had a lawyer prepare the document properly – and some problems cannot be fixed after the fact.

If you are an executor of a small estate where you are the sole beneficiary, handling it yourself may work out fine.  However, if you are not the only beneficiary and you do something wrong, you may have liability to the other heirs; you may not be comfortable with that risk.

Copying a friend’s documents is the most dangerous way to think you are getting “help.”  Your friend’s situation may have been different from yours in ways that you don’t realize.  Using an online resource that is not state-specific to North Carolina comes in second.  Differences in state laws matter.  Also, the quality of online resources varies greatly.  The problems are not always apparent when you look at the document you plan to use.

Online resources can help you ask your lawyer better questions. Think of it like this.  WebMD will help me ask my doctor better questions, but I won’t be using WebMD to diagnose myself.

It is appropriate to ask a lawyer about fees before deciding to hire him or her, and to ask about fees for an initial consultation before scheduling your appointment.  At our office, we offer a no-charge first appointment to prospective clients who are new to our firm.  That way we can discuss what you need and what it will cost before you make any decisions.

 

Kim K. Steffan is an attorney with Steffan & Associates, PC in Hillsborough.  She can be reached at 919-732-7300 or kim.steffan@steffanlaw.com.

SO YOU WANT TO BE AN UBER DRIVER?

You may know from the news, or from using the service yourself, that Uber has permanently changed how we hire transportation. In the past, a need for a ride usually meant calling or hailing a taxi. Uber, which launched in 2012 in the US, had its one billionth rider in 2015. In 2016 Uber estimated it had 40 million riders per month worldwide. Uber (and the similar service Lyft) offers customers quick access to rides from drivers (who operate their own vehicles on their own schedules) who are nearby. Because Uber drivers tend to drive in areas close to their homes, suburban and rural residents may have easier access to alternative transportation, where taxis are not as practical.
Riders and drivers each have their own Uber smartphone app, which links those who want rides with available drivers. When a customer requests a ride, available drivers in the area are alerted, and can either accept or decline.
Some people become Uber drivers because they want to make extra money. Usually these people like driving and conversation. They like the freedom to sign in to the app and be available to drive whenever they want, on their own schedule. If you want to be an Uber driver, what do you need to know?
In 2016, North Carolina passed its own law regulating Transportation Network Companies (TNCs) like Uber. It was prompted by a sad case from California where a 6 year old girl was killed by a negligent Uber driver. The case exposed some shortcomings in how insurance works with Uber. Since then, Uber has incorporated some of these additional protections into its corporate policies.
To be an Uber driver, you must own or be able to use a 4-door vehicle that is less than 10 years old, which can seat 4 or more passengers in addition to the driver. The vehicle must have valid plates and registration. In NC, the car must pass the annual state safety inspection.
You must have a valid drivers’ license, but it does not have to be a commercial or special license. You must be at least 21 years old with one year driving experience (or 3 years’ experience if you are under 23).
What about background checks on drivers? NC law requires national and local criminal background checks. No one can drive for Uber with more than 3 moving violations in the past 3 years, or one major violation in the past 3 years (like evading police, reckless driving, or driving with a suspended or revoked license). Also, having a conviction for DWI, fraud, sex offenses, theft, or acts of violence in the past 7 years makes you ineligible.
Uber requires each rider to set up an account. There are no “anonymous” riders, which helps keep drivers safe.
In NC, Uber drivers must have at least $50,000 per injury/$100,000 per year insurance for bodily injury, with a matching amount of uninsured/underinsured motorist coverage. (Note that this is higher than the NC minimum limits to drive your own vehicle, which is $30,000.) When driving an Uber passenger, Uber must provide a $1.5 million bodily injury policy in addition to the driver’s policy. When an Uber driver is logged onto the app but not carrying a passenger, the driver’s insurance is primary, and Uber has a $50,000 excess insurance policy in place. When an Uber driver is not working, of course, the only coverage is the driver’s coverage.
To avoid a bad surprise, keep in mind that a driver’s ordinary vehicle insurance policy may not provide any coverage (to people the driver injures, to the Uber driver, or for the vehicle used for Uber). This is because most ordinary policies specifically don’t allow coverage when the vehicle is being used for commercial purposes, like hauling paying passengers. It is possible to purchase extra coverage (an “endorsement”) to your ordinary policy to cover commercial use of the vehicle; if you do this, you can rest easier about having coverage in place. NC statutes require that you notify your insurance company and your lender (if you have a car loan) that you are going to drive for Uber.
NC law is clear that Uber drivers are independent contractors, not employees. That means their drivers are not entitled to workers’ compensation or unemployment compensation from Uber, nor are they subject to wage and hour laws. Uber drivers will have to pay their own taxes directly, since there is no tax withholding.
How do you get paid? Most riders pay their fare by Uber’s app, and Uber credits the driver’s share to his/her account. If a rider pays in cash without exact change, the Uber app will make change to put into the rider’s account, so that drivers do not have to carry cash.
After each ride, riders rate their drivers, and drivers rate their passengers. Uber uses this information to avoid matching parties who haven’t had a good experience before. If ratings problems are bad enough, a rider or a driver may be blocked from using the Uber service in the future.

Kim K. Steffan is an attorney with Steffan & Associates, PC in Hillsborough. She can be reached at 919-732-7300 or kim.steffan@steffanlaw.com.

TURNING 18? GOT YOUR POA’S LINED UP?

TURNING 18? GOT YOUR POA’S LINED UP?

By Kim K. Steffan, Attorney

 

High school graduations make me think about kids becoming adults, leaving the nest, or making their way in the world. You may not have thought about why a financial power of attorney (POA) and a health care power of attorney (HCPOA) are important for young adults upon turning 18.

As our teenagers happily remind us, turning 18 makes one legally an adult.  If you are a parent of a 17 year old, you’ve been used to making decisions for him or her, giving permission for activities, maybe opening and managing a savings account for him or her, and receiving medical information.  All of a sudden, once your child turns 18, you as a parent no longer have the automatic authority to do those things, even if your child still resides at home.  A doctor may refuse to provide you medical information about your adult child because doing so would violate HIPAA.  Banks may refuse to allow you to move money from your child’s savings account to his checking account when he is in college, even if you used to do that for him.  How can we avoid these problems?

Young adults, like any other adults, should consider having a financial power of attorney (POA) and a health care power of attorney (HCPOA).  The financial power of attorney appoints someone else to handle their financial matters.  This includes getting their bills paid, moving money from one account to another, and signing contracts.  The POA can be set to appoint someone to act only if the young adult is physically or mentally incapacitated (e.g., due to accident or illness) or it can be set to allow someone he/she trusts to do these things anytime for his/her convenience (e.g., when he/she is away at college, traveling before starting a job, etc.).  A POA should be made effective anytime only if the person being appointed is someone the young adult fully and completely trusts, because it means that person can take actions about his/her finances, credit, and bank account even when the young adult is perfectly capable of handling these things for himself/herself.

A health care power of attorney (HCPOA) appoints someone to make medical decisions only if the person making the document cannot make those decisions for himself/herself.  If a young adult appoints a parent on her HCPOA, it means that if she has an injury or illness making her unable to make medical care decisions, the parent would be authorized to receive information from the doctor or hospital, and to make decisions based on that information.

Young adults most commonly appoint one or both parents (or, if raised by someone else, that person) to serve on their financial and health care powers of attorney.  Over time, the young person may develop other relationships making it logical to change the person appointed, like when he/she marries or has a long-term relationship.  The documents can always be updated later.

Many attorneys will prepare financial and health care powers of attorney for young people who have recently turned18 at a courtesy (inexpensive) fee that doesn’t cover the lawyer’s time.  Lawyers often do this just to help out, because they know it lets the family rest easier.  It is always acceptable to ask for fee information from a lawyer’s office either before scheduling an appointment or before the lawyer begins work for which you could be charged.

 

Kim K. Steffan is an attorney with Steffan & Associates, P.C. in Hillsborough.  She can be reached at 919-732-7300 or kim.steffan@steffanlaw.com.

 

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.

 

STANDBY GUARDIAN LAW

          Suppose you have been appointed by a Clerk of Court as the guardian (meaning either a general guardian or a guardian of the person) of an adult relative who is incompetent because of dementia, intellectual disabilities, or developmental disabilities. What if you then develop progressive or debilitating health problems of your own? How can you protect your loved one if your health problems at some point make you unable to serve, or even cause your death? A section of Chapter 35A of the NC General Statutes added in 2015 allows you to name a “standby guardian” to take your place if necessary.  It expands upon an existing statute allowing seriously ill parents of minor children to name a standby guardian for their children, to serve in the event of the parent’s death or disability.

          The standby guardian is someone who acts as a back-up guardian, ready to assume the responsibilities of a guardian of the person or a general guardian upon a triggering event, including the current guardian’s death, mental incapacity (as determined by the Clerk), or sooner upon the current guardian’s written consent (which may be a decline in physical health).  Without naming a standby guardian, if the current guardian died or became incapacitated, there would be a gap leaving no one serving as guardian until the Clerk is able to hold a hearing to appoint a new guardian.  Also, in that situation, the Clerk would not have the advantage of knowing whom the original guardian thinks would do a good job next.

          However, the standby guardian process is only available when the current guardian suffers from a progressive chronic or irreversible fatal illness.  It is not available when the current guardian is healthy.  You may be thinking that it should be available to any guardian since even a healthy guardian can be “hit by a bus” and killed – and you’d have a good point.  At some point in the future, a further expansion may permit this for any guardian, but not yet.

          If you are a guardian with a progressive chronic or irreversible fatal illness, you have two options to appoint a standby guardian.  One is by petition.  Until more specific forms are developed, use AOC Form E-209, which is the form for guardians of minor children.  The Clerk will hold a hearing to confirm both the guardian’s progressive illness and the suitability of the person nominated as the standby guardian.  Then the Clerk will enter an order appointing the standby guardian and issue him/her letters of appointment that list the conditions upon which the power becomes effective. When the standby guardian receives documentation of the triggering event (like a death certificate for the original guardian), he/she must file it with the Clerk.

           The other way to name a standby guardian is by a written designation witnessed by two adults.  When the standby guardian receives any of the documents listed in the statute for a triggering event, his authority begins.  However, he still must file a petition with the Clerk within 90 days of receiving documentation of the triggering event. If the Clerk finds the statutory requirements have been met, the Clerk will enter an order appointing the person and issuing guardianship letters to him/her.

          While the statute does not address all problems involved in managing guardianships of adults, it does solve one.  For more information on standby guardianships, contact the Clerk of Court’s office or consult an attorney.

 

 

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.

ARE RETIREMENT ACCOUNTS PROTECTED FROM CREDITORS?

ARE RETIREMENT ACCOUNTS PROTECTED FROM CREDITORS?

By Kim K. Steffan, Attorney

 

            Job losses during difficult economic times caused some people who had always paid their bills to become delinquent on debts like credit cards and consumer loans.  In some cases, creditors got judgments against them, or threatened to.  A common question in those cases is whether their creditors can take their retirement accounts.  Many of those clients have put a little away each year for a long time, and would hate to lose this retirement nest egg.

            The good news is that retirement accounts which you fund while you are working are generally safe from most creditors.  N.C. General Statute section 1C-1601 covers what assets creditors can seize and sell to satisfy judgments – a topic which is entirely separate from filing bankruptcy, by the way.  Under that statute, money in your 401(k), traditional IRA, Roth IRA, and/or 403(b) is protected.  Whether you file bankruptcy or not, NC law applies to allow an unlimited dollar amount of protection for qualifying retirement accounts.  Your contributions to your employer’s pension plan (like the N.C. State Retirement System) are also safe, but for a different reason – because they are held by the pension plan and are not assets in your name. 

            In fact, if you see creditor problems coming up, you might choose to contribute as much as you can (subject to annual limitations by law, which depend in part on your age) to protect those dollars from creditors too.  If those same funds are left in your bank account or used to purchase an extra vehicle, for example, a creditor can easily take the funds or the vehicle to satisfy a judgment entered against you.

            The rule I’ve described governs consumer debt like credit cards, furniture store loans, deficiency judgments on vehicle loans, personal loans, etc.  As you might guess, there are some non-consumer creditors that can seize your retirement accounts – e.g., when the United States, North Carolina, or a County is the creditor, or when needed for paying alimony or child support.

            Some clients follow up with this question:  Didn’t I hear news about a U.S. Supreme Court case making retirement accounts fair game for creditors?  The Clark case in the summer of 2014 held that when you inherit an IRA from someone other than a spouse, your inherited IRA funds are not protected from your creditors.  Why treat IRAs inherited from someone other than a spouse differently than retirement accounts you have funded?  Those accounts are treated differently for tax purposes than the retirement accounts you fund for your retirement.  Inherited IRAs (from other than a spouse) don’t have to be left untouched until you retire.  In fact, the IRS requires that you take the money out of these inherited IRAs within a few years anyway (because they want to tax you on the income).  That makes these inherited IRAs more like money market accounts than like true retirement accounts.  A special rule still protects IRAs inherited from a spouse, because the law recognizes that most couples plan together for retirement using both spouses’ accounts.  A lot of news coverage that was just too summary made it sound like the USSC had held all retirement accounts were fair game for creditors, which is not accurate. 

            So, if you’ve fallen into trouble with consumer debt, you can usually rest easy that your retirement accounts you’ve worked hard to put away for your future are safe.  They will withstand consumer creditor claims and still be there to help support you and your spouse during retirement.

 

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