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J. Bradley Smith

J. Smith’s Answers

25 total

  • I got a drinking citation and have to go to court. what is most likely going to happen in court?

    This is my first time getting in trouble besides a speeding ticket and I didn't pay my ticket on time so I got my license taken. I'm in the process of trying to get them back now. I had this situation happen and now I have court tomorrow for the c...

    J.’s Answer

    You should probably consult with an attorney before going to court. If you plead guilty to additional charges while your license is suspended, it may further impact your ability to get your license back. Good luck.

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  • Is there any way to avoid the installation of an IID after my first DUI?

    I was arrested yesterday for a DUI. I was standing at the gas pump filling my car when a police officer approached and said they had received a tip that a car matching my description was driving erratically. I asked if they had the right car, but ...

    J.’s Answer

    The only way to avoid the IID is to fight you DWI charge and win. If you were arrested while standing at a gas station pumping gas, it sounds like one of your defenses may be operation. It will ultimately be the state's burden to prove each of elements of Driving While Impaired. Call an attorney to discuss your case. Good luck.

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  • Just a question

    Since north Carolina has been doing a lot of dui checkpoints I want to ask yall out 10 checkpoint cases how many normally get dismissed?

    J.’s Answer

    The United States Supreme Court has determined that DWI checkpoints are constitutional when the primary purpose of the checkpoint is to check for impaired drivers, and the checkpoint is reasonable. Our Supreme Court has developed a three prong test to determine the reasonableness of the checkpoint. (1) the gravity of the public concerns served by the seizure, (2) the degree to which the seizure advances the public interest, and (3) the severity of the interference with individual liberty. The second prong of the test is the most commonly litigated issue with respect to checkpoints. The government has the burden of showing why there was a particular need for a checkpoint in this particular area of town on the specific date of the checkpoint. Border checkpoints are on the border because that's where our government is most likely to find undocumented aliens attempting to enter the country. Airport checkpoint points are at the airport, because that's where we the government is most likely to find individuals attempting to get on planes with weapons. If the police cannot provide evidence to support the decision to place a checkpoint in a specific location on a specific date and time, the checkpoint is unconstitutional according to our appellate decisions. It is of course difficult to explain the complexities of checkpoint litigation with a comment. You should absolutely consult an attorney. Good luck!

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  • I got citation and a court date for shoplifting cloths worth of $400.

    I got caught shoplifting on Friday 19th May 2014 for goods worth of $400 from a mall. It was a stupid thing to do and haven’t been able to sleep since that incident. I was not arrested by cops but given a citation and a court date. I am an immigr...

    J.’s Answer

    You should definitely speak with an attorney. A lawyer will be able to advise you of several different options that could help get the case to dismissed in some circumstances. Good luck!

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  • What do I do since at my first hearing I told the judge I wanted to represent myself for DWI?

    I had my first preliminary hearing which was to determine representation. At which I stated I wanted to represent myself. Which at the time I was unemployed and had no means to afford an attorney or public defender. Now I have a job and steady inc...

    J.’s Answer

    Tell the judge your story. He or she will likely give you more time to hire an attorney. Good luck tomorrow.

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  • Are DWI charges more or less likely to get dropped if they are issued at a checkpoint?

    I blew a .15 in the checkpoint bus after waiting the allotted 30 minuets to decide if I wanted to blow or not. I was read my rights and as far as I know it was mostly by the book. What are my chances if any of not being convicted?

    J.’s Answer

    Whenever an individual is stopped at an impaired driving checkpoint or any type of vehicular checkpoint, there several constitutional hurdles that the state must first overcome to avoid having the case dismissed. First, the state must show the court the primary programmatic purpose of the checkpoint. According to the United States Supreme Court impaired driving checkpoints are a permissible reason for the government to conduct a checkpoint. If your attorney challenges the constitutionality of the checkpoint, a good DWI attorney will challenge whether the primary programmatic purpose of the checkpoint was to check for impaired drivers. Often times checkpoints are set up in certain parts of town under the guise that the purpose of the checkpoint was to check for impaired drivers when in fact the police are actually looking for drug and gun offenses. Questions to consider are, was this checkpoint set up in a location close to restaurants and bars that sell alcohol? Do crime statistics suggest that in the weeks before the checkpoint a large number of drivers had been arrested for DWI? Was there a vehicular fatality in the area where the checkpoint was conducted just prior to the date of the checkpoint? Appellate courts have consistently said the court must conduct a thorough analysis to determine the primary programmatic purpose of the checkpoint.

    Even if the court determines that the checkpoints PPP was to detect impaired drivers, the court must then consider the reasonableness of the checkpoint. According to the United States Supreme Court reasonableness is determined using a three prong test. First, the court must determine the gravity of the public concern served by the checkpoint i.e. how important is the PPP of the checkpoint. Second, the court must determine the degree to which the checkpoint or seizure advances the PPP. This is perhaps the most challenged prong of the three-part test. A good attorney will challenge the state to show the reasons why the particular location, date and time was picked for the checkpoint. Finally, the court must consider the severity of the interference with individual liberty caused by the checkpoint. Your attorney will need to focus on three things when attacking this prong. How did the officer’s conduct the checkpoint? How much discretion was afforded each individual officer working at the checkpoint? Was the checkpoint carried out pursuant to a plan with neutral, explicit limitations on the conduct of the officers in the field? .

    Remember, the state has the burden of proving to the court that the checkpoint was conducted in accordance with United States and North Carolina Constitution.

    It's important that you talk to an attorney about your case. You may have many defenses available. Good luck.

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  • Is the evidence they took from her vehicle valid under the circumstances

    Hi my girlfriend and I were both pulled over last night. We were in separate vehicles. The officers pulled us over because we changed lanes back and forth about three times, although turn signals were used. When they pulled us both over, they only...

    J.’s Answer

    When officer conducts any type of non-consensual seizure of a person, he or she must comply with the Fourth Amendment to the United States Constitution which prohibits unreasonable searches and seizures. The North Carolina Supreme Court has held that an officer conducting a traffic stop on a vehicle must have reasonable articulable suspicion that some type of criminal activity is afoot. In other words, the officer must observe driving that viewed objectively, would suggest there is a substantially possibility that criminal conduct has occurred, is occurring, or is about to occur. State v. Battle, 109 N.C. App. 367. Changing lanes on a highway with your turn signal activated is not a criminal offense as long as you made the lane changes in a safe manor while otherwise observing all rules of the road. If you were not committing any motor vehicle violation, the officer did not have grounds to pull your vehicle over. If a judge were to determine that the stop of your vehicle was in violation of the 4th Amendment, then all evidence seized as a result of this illegal stop would be suppressed. You should speak with your attorney about filing a motion to suppress.

    If the stop of your vehicle is determined to be constitutional it is likely that the officer possessed probable cause to search your vehicle. The North Carolina Supreme Court has ruled that an odor of marijuana alone can give law enforcement probable cause to search a vehicle. Good luck with your case.

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  • Is deferred dismissal the same thing as deferred prosecution?

    I was arrested for misdemeaner larceny and resisting a public officer on 12/07/11. I have completed all terms set forth by the court system and it has been resolved as a deferred dismissal. I am in the process of getting it expunged, but in the me...

    J.’s Answer

    It sounds like you received a dismissal with Deferred Prosecution. Your lawyer likely sent you a letter detailing the disposition of your case. If you don't have the letter, call the attorney and ask him for the disposition of your case. Good Luck.

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  • The D.A. reduced my ticket down to 9mph over the speed limit. Will my insurance go up?

    I originally got in trouble for speeding 21 mph over the speed limit I was going 86 in a 65 zone, I explained my situation to the D.A. and he reduced my ticket down to 9mph over, I am afraid that my insurance will still go up, is there any chance...

    J.’s Answer

    If the district attorney has already reduced your ticket your case is over. You must now pay the fine and costs of court or your license will be suspended. Make sure you pay the fine and costs of court immediately to avoid suspension.

    J. Bradley Smith
    Managing Member
    Arnold & Smith, PLLC
    jbs@arnoldsmithlaw.com

    Please excuse the brevity of this message and any typographical or grammatical errors, as it was sent via smart phone.

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  • My DUI trail is pending , I have to go back to my home country and will comeback after 6 month .

    My DUI trail is pending , I have to go back to my home country and will comeback after 6 month , can i ask court to put my next court date after 6 month , and what prescausions I should take so that I don't have problem while entering USA again.

    J.’s Answer

    In North Carolina control of the docket or court calendar is given to the District Attorney. Your attorney will need to explain to the District Attorney your travel plans and request that the case be moved to a court date when you return to the United States. Your ability to re-enter the United States will not be effected by this pending charge. Of course other immigration issues could potentially impact your ability to re-enter the United States. Your attorney should be able to answer all of these questions for you.

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