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Attorney Carilyn Ibsen's Blog

about Criminal Defense in North Carolina and South Carolina

 

Friday, July 31, 2009

The North Carolina mom's traffic ticket story- two years later

My busy friend was not aware that an attorney could of gone to court for her, appeared for her, and negotiated the ticket with the prosecutor or judge. Many times the District Attorney's Office will lower the mph violation or cite you for a non moving violation that won't affect your insurance premium. On some cases they will allow you to go to a defensive driving school. There were many options available to her that she simply didn't know about. Moreover, she could of taken care of this without ever have gone to court.

Almost two years later now, she is cited in York County for speeding 9 miles over the speed limit. How many times do you drive 44 mph in a 35 mph. York County recently enacted a Traffic Education Program. Depending on a number of factors, including the severity of your ticket and your driving history, you can go to a 4 hour course and get your ticket dismissed. You must, however, qualify for this program. If you don't automatically qualify, an attorney could possibly assist getting you into the program. Moreover, an attorney can advise and negotiate on your behalf.

The bottom line is that we drive every day and take for granted how difficult our daily lives would be without a drivers license. I have represented many clients accused of driving while license revoked; you do not want to be cited for this. Not only would you have a criminal misdemeanor pending, you now have the DMV controlling your ability to drive. This creates a hornet's nest that the average law abiding citizen cannot imagine, putting aside the issue with maintaining car insurance.

So should you hire an attorney- Yes. In most cases the attorney will appear for you. You never have to see a courthouse. You have to ask yourself how much your time is worth and how competent you are in criminal law.

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A Carolina working mom traffic ticket story

A friend of mine recently called and said she received a ticket in York County, South Carolina. She wanted to know what her options were. Almost two years ago she recieved a ticket in Gaston County, North Carolina. Being a busy working mom with two kids and under time constraints, she just sent the money in for the Gaston County ticket. Her insurance immediately went up; her insurance company told her that the increase was due to her admission of guilt to a speeding violation that was over a certain miles per hour. This is a person with a very good driving record! Many blogs can be written on the various reasons insurance companies raise your premiums.

However, the DMV did not suspend her license. This brings up another point. When you get a moving violation, not only do you need to be concerned with your insurance premium, but also what the DMV will do with your license. They can suspend your license in North Carolina for violations which many would view as minor. For example, the NC DMV can suspend your license for driving 15 mph over the speed limit when driving at a speed higher then 55 mph. So, if you are leaving Charlotte to head for the beach for the weekend, your license could be suspended if you are caught doing 70 mph on the Interstate. Some police will also cite you for reckless driving.

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Do I need an attorney for a traffic ticket in Mecklenburg County?

The most common question asked when a person receives a traffic ticket is "Do I have to hire an attorney?". Do you have to hire an attorney- No. Should you hire an attorney-Yes.
Traffic laws have become incredibly strict in recent years. Every violation is assigned a point value. Point value is one of a number of factors that determine whether your insurance will increase or whether the DMV will suspend your license. For example, in North Carolina, a person's license will automatically be suspended for thirty days if convicted of driving 15 mph over the speed limit. Here is the link to the North Carolina DMV handbook. You will be shocked to see how easily it is to have your license revoked.
http://www.ncdot.org/dmv/driver_services/drivershandbook/Chapter3/Suspensions.HTML

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Tuesday, July 28, 2009

Why I like working on Guardianship cases

These cases have been very rewarding to work on. I have met families, friends and individuals that care very deeply about people who face challenges that many of us would view as insurmountable. It makes a person appreciate life and acknowledge the joy in life that is often taken for granted.

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How do you establish a guardianship in North Carolina

In North Carolina, a guardianship proceeding is initiated by filing appropriate documents with the Clerk of Court. If the alleged incompetent person resides in Mecklenburg County, that is where the guardianship proceeding should be filed. In Mecklenburg County, the Clerk can appoint counsel, a guardian ad litem, to act upon the individual's behalf during the proceeding. A hearing date will be set. At that hearing, the clerk will decide whether to dismiss the petition or declare the individual incompetent.

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What does a guardian of the estate or person do?

A guardian will always act in the best interest of the person. A good guardian will take into account the wishes of the person when making decisions about residence location, medical treatment, or even a job opportunity. You might question the necessity of a guardian if the person is capable of working. This can happen often.
An example would be a child with Down Syndrome. Upon turning 18, a child becomes an emancipated adult under the law. After turning 18, parents no longer have the right to make decisions for their child or the legal right to sign documents on their behalf. While many with Down Syndrome can make informed decisions and simply need guidance from others, some cannot. A guardianship can be appropriate in some situations to protect a young adult from having their rights violated or ignored.

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When a guardianship becomes necessary

I have spoken to many who care for individuals with serious mental conditions such as Alzheimer's; they have stated that their decision making authority is heavily questioned even with a power of attorney. Oftentimes health care institutions or general institutions will require that the power of attorney be reviewed by their attorneys before they will honor it. This can be incredibly upsetting when faced with an immediate medical or economic decision. At a certain point, a guardianship needs to be considered.

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What is a guardianship in North Carolina?

A guardianship is a legal process where one person obtains decision making authority over another person. It is appropriate when a person can no longer make sound decisions about themselves or their property. It can also be applied if a person is susceptible to fraud or undue influence by others because of infancy, incapacity, or disability.

Courts are given the power to appoint a guardian for an individual who needs such protection. The type of guardianship vary; a person could be appointed guardian of the estate or guardian of the person. Since a guardianship removes the right of an individual to make their own decisions, it should only be used when other alternatives, such as power of attorney, joint checking accounts, living wills, among many others, have been considered.

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Monday, July 27, 2009

When can the police search my car?

The United States Supreme Court recently handed down an important opinion that narrows the ability of a police officer to search the passenger area of a car after a person in the car was arrested. In Arizona v. Gant, the Court found the Fourth Amendment of the United States Constitution requires police to have an actual and continuing threat to their safety or a reasonable belief that there is evidence in the car that directly relates to the crime the person was arrested for. Without this, a search could be unlawful and any ‘fruits’, i.e. anything the officer found in the car, could be excluded from evidence. These types of searches are commonly called searches incident to arrest. This is different than an inventory search, a search of the vehicle when the vehicle is impounded. This is also different than probable cause to search standard; an officer can justify a search when there is a reasonable belief that a person has committed a crime and the officer searches an area where he believes evidence of the crime exists.

How does this change things?


Prior to this decision, law enforcement relied heavily on the decision in New York v. Belton. In Belton, the court held that a police officer may search the entire passenger compartment of a vehicle when they have made a lawful arrest of a person inside the vehicle.

Bottom line- anytime an officer searches you or your property, you should question it. This decision is a definite win for right to privacy rights advocates. This decision should impact many pending cases in the courthouses and certainly reaffirms the rights of individuals to be free from unreasonable search and seizures.

As a practical matter, watch out for the increase in inventory searches. When the police impound a vehicle, they become liable for the contents. To protect against civil liability, the police are permitted to examine the vehicle and create an inventory of its contents before sending the car to the impound lot. Many officers have avoided this in the past because of the time and paperwork it requires. Police Officers are now going to need the inventory search exception to justify their searches.

I assume owners of impound car lots who collect those enormous fines are cheering now.

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