Searches, Tests and Interrogations: Understanding Your Rights (and Obligations) After an NC Drunk Driving Arrest
When you get pulled over by the police, understanding your legal rights (and your legal obligations) can be critical to minimizing the consequences of your traffic stop. If the police meet their obligations, any information your supply voluntarily can be used against you – even if you mistakenly believed that you were required to answer the officer’s questions or submit to a search – and this can lead to a conviction with steep penalties and long-term ramifications.
On the other hand, if you fail to comply with the law during your traffic stop (for example, by refusing a breath test), this can lead to additional charges and additional penalties. So, what do you need to know when you get pulled over for drunk driving in North Carolina? Here is a brief summary of the laws that apply:
1. Searches and Seizures
The police must have reasonable suspicion to pull you over, and they cannot arrest you without probable cause. If the police pulled you over without justification, this could be grounds to have any evidence obtained as a result of your traffic stop excluded from your trial. Likewise, if the police arrested you without probable cause, any evidence flowing from your arrest may be inadmissible in court.
This “probable cause” standard applies to searches during DUI/DWI traffic stops as well. If the police have probable cause to believe that you were drinking and driving, they can conduct a search of your vehicle and your person without violating your Fourth Amendment rights. The Constitutional search and seizure principles that apply to traffic stops are far more complicated than most people realize; and, even if you were drinking and driving, a violation of your Constitutional rights could still protect you from a DUI/DWI conviction.
2. Breath Tests
Under North Carolina’s “implied consent” law, when the police stop you on suspicion of drunk driving, you are obligated to submit to a breath test. If you refuse to take the Breathalyzer, the prosecution can use your refusal against you (to establish a “negative inference” that you knew you were impaired), and you can face an additional charge for your implied consent violation.
3. Field Sobriety Tests (FSTs)
Unlike the Breathalyzer, you are not required to submit to field sobriety tests (FSTs) during a DUI/DWI traffic stop. If the officer who pulled you over asks you to perform the horizontal gaze nystagmus (HGN) test, the walk-and-turn test or the one-leg stand test, you are well within your rights to politely refuse.
Once you have been arrested, the police are required to read you your rights. These include the right to remain silent and the right to speak with an attorney. However, while you do not have to answer any questions, this doesn’t mean that the police aren’t going to ask. To avoid saying anything that the prosecutor’s office can use against you, it is important that you exercise your right to legal representation promptly after your arrest.
Speak with a Raleigh DWI Lawyer in Confidence
If you are facing DUI/DWI charges in Raleigh, our attorneys can protect your rights and help you fight to avoid a conviction at trial. To get started with a confidential consultation, please call (919) 833-3114 or send us your contact information today.
A recent victory by Raleigh white collar criminal defense lawyer Elliot Abrams in an asset forfeiture case was the subject of a front page article in NC Lawyers Weekly last month.
As Elliot Abrams and his co-counsel Samuel Hartzell told Lawyers Weekly, “Th[e] ruling will protect innocent people and businesses and is a strong step toward restoring the balance of power between
the government and the accused.”
The decision was issued by the entire Fourth Circuit sitting en banc. (Full text of opinion). It overruled decades’ old precedent that allowed the government to seize assets from individuals even though the government acknowledged that those assets were not earned illegally.
As the government’s response to the opioid epidemic continues to make national headlines, law enforcement authorities in North Carolina are taking aggressive action to combat the over-prescription and diversion of opioid medications within the state’s borders. In addition to the federal Opioid Fraud and Abuse Detection Unit created by the U.S. Department of Justice earlier this year, over the summer, Governor Roy Cooper announced a new statewide Opioid Action Plan that will focus on combatting the rising number of annual opioid-related fatalities in North Carolina.
According to a press release from the Office of the Governor:
“Opioid overdose has claimed more than 12,000 lives in North Carolina since 1999, with opioid-related overdoses deaths up more than 800 percent in the state through 2016. Gov. Cooper today joined Department of Health and Human Services Secretary Mandy Cohen, M.D., to announce a plan to fight opioid abuse and overdose deaths. The plan is the product of input from many partners and sets strategies to reduce the number of deaths and measure progress.”
North Carolina’s New Opioid Action Plan
North Carolina’s Opioid Action Plan includes measures that are focused on treatment and community awareness as well as those that are focused on law enforcement. As outlined on the North Carolina Department of Health and Human Services’ website, some of the key strategies that the state will be using to combat opioid fraud and abuse include:
- Coordinating the state’s infrastructure to tackle the opioid crisis.
- Reducing the oversupply of prescription opioids.
- Reducing the diversion of prescription drugs and the flow of illicit drugs.
Over the next five years, the State’s goal is to reduce the number of unintentional opioid-related deaths and opioid emergency room visits by 20 percent, and to spur a decreasing trend in:
- The total number of opioid pills dispensed,
- The number of patients who receive opioid prescriptions from multiple providers, and
- The number of patients who receive at least one opioid and one benzodiazepine prescription in the same day.
What the Opioid Action Plan Means for Healthcare Providers in North Carolina
From Medicare audits to state and federal law enforcement initiatives, healthcare providers in North Carolina are already subject to intense scrutiny with respect to their prescription and billing practices. With the current national focus on combatting the effects of overdose and illegal use of opioid medications, healthcare providers who prescribe and dispense opioid medications need to be cognizant of the risks of facing a law enforcement investigation, and they must be prepared to demonstrate their compliance with the law in the event of a state or federal inquiry. The law imposes both civil and criminal penalties for Medicare fraud and prescription drug-related offenses; and, with penalties including fines, recoupments, treble damages, program exclusion and even incarceration, providers who are facing audits and investigations for opioid-related issues need to take their circumstances extremely seriously.
Speak with a Raleigh Drug Crime Lawyer in Confidence
Cheshire Parker Schneider & Bryan, PLLC is a Raleigh law firm that represents healthcare providers and other clients in state and federal criminal matters. If your business or practice is under investigation for prescription drug fraud or any other opioid-related offense, we encourage you to call (919) 833-3114 or contact us online promptly for a confidential consultation.
Earlier this month, U.S. Attorney General Jeff Sessions announced that the federal government would be implementing a new pilot program designed to target fraud and abuse involving prescription opioid medications. The Department of Justice’s (DOJ) new Opioid Fraud and Abuse Detection Unit will initially target twelve regions around the country, including Central North Carolina.
According to a press release issued by the DOJ:
“[T]he new Opioid Fraud and Abuse Detection Unit will focus specifically on opioid-related health care fraud using data to identify and prosecute individuals that are contributing to this prescription opioid epidemic. . . . [The DOJ] will fund twelve experienced Assistant United States Attorneys for a three year term to focus solely on investigating and prosecuting health care fraud related to prescription opioids, including pill mill schemes and pharmacies that unlawfully divert or dispense prescription opioids for illegitimate purposes.”
Federal Health Care Fraud and Opioid Prescriptions
Also according to the press release, the DOJ intends to target two specific forms of prescription drug fraud involving opioid medications: (i) physicians issuing illegal opioid prescriptions for profit, and (ii) pharmacists dispensing opioid medications pursuant to fraudulent prescriptions. The prosecutors on the Opioid Fraud and Abuse Detection Unit will be relying data analytics and working with agents from the Drug Enforcement Agency (DEA), the Federal Bureau of Investigation (FBI), the Department of Health and Human Services (DHHS) and local law enforcement to identify targets for investigation. Healthcare providers and pharmacists found responsible for illegally distributing opioid medications can face severe civil and criminal penalties, including: fines, damages, loss of government program eligibility, and even federal incarceration.
Some of the most-commonly-prescribed opioid medications include:
Factors the Opioid Fraud and Abuse Detection Unit will consider in deciding whether to prosecute providers include: “which physicians are writing opioid prescriptions at a rate that far exceeds their peers; how many of a doctor’s patients died within 60 days of an opioid prescription; the average age of the patients receiving these prescriptions; pharmacies that are dispensing disproportionately large amounts of opioids; and regional hot spots for opioid issues.”
Federal Efforts to Be Supplemented by New North Carolina Prescription Pain Killer Law
In June, North Carolina Governor Roy Cooper signed the Strengthen Opioid Misuse Prevention Act (the “STOP Act”) into law. The STOP Act establishes new limits on opioid prescriptions and enhances the reporting requirements for physicians who prescribe opioids in the state. The law also creates new obligations for pharmacies, hospices and other providers, and imposes civil penalties for certain reporting violations. In addition, physicians can risk losing their medical licenses if they fail to report violations of the new law.
Contact Cheshire Parker Schneider & Bryan, PLLC
The health care fraud and drug crime attorneys at Cheshire Parker Schneider & Bryan, PLLC provide experienced legal representation for providers facing audits, investigations and prosecution. If your business or practice is being targeted by state or federal law enforcement, call (919) 833-3114 or contact us online to speak with a lawyer in our Raleigh, NC offices today.
Each quarter, the North Carolina State Bar (“NC Bar”) publishes its most-recent disciplinary actions against attorneys licensed in the state. Here is a summary of some of the most noteworthy actions from Spring 2017:
The NC Bar’s Disciplinary Hearing Commission (DHC) disbarred four attorneys during the quarter. Three of the disbarments were based, at least in part, on misappropriation of clients’ entrusted funds. All three of the disbarred attorneys had been in practice for at least 30 years. In one case, the attorney had misappropriated well in excess of $80,000 from multiple clients. In the other two, the misappropriated amounts were smaller, but the attorneys were also found to have mismanaged and misrepresented the handling of their client trust accounts, including intentionally misidentifying the source of trust funds.
In the fourth disbarment action, the attorney consented to resignation of his law license while facing an investigation for sending sexually-suggestive emails and engaging in sexual relations with immigration clients who were “especially vulnerable.”
Ten North Carolina-barred attorneys received suspensions and stayed suspensions from the DHC during the spring. The grounds for suspension included:
- Failing to maintain client communications and participate in the NC Bar’s fee dispute resolution program.
- Failing to perform quarterly trust account reconciliations, failing to return funds mistakenly wired from an unknown source, and improperly disbursing client deposits held in trust.
- Submitting a document bearing a false signature to the NC Bar’s Grievance Committee.
- Failing to communicate with clients and making inaccurate statements to a client about work purportedly performed.
- Failing to adequately supervise the attorney’s assistant (who misappropriated clients’ trust deposits) and adequately monitor the firm’s trust account.
- Practicing law on a suspended license and neglecting a client’s case.
- Engaging in conduct prejudicial to the administration of justice by making “frivolous claims and misleading statements” during the representation of criminal defendants. The misleading statements included falsely telling one Assistant District Attorney (ADA) that another had promised amnesty for crimes committed prior to the subject offense, and “impl[ying] to the court that [the ADA] had agreed not to prosecute [her client]” for earlier offenses.
3. Censures and Reprimands
Six attorneys received censures and/or reprimands during the quarter. The grounds for discipline included making misrepresentations to the court, practicing on a suspended license, failing to take action as appointed appellate counsel for indigent clients, charging excessive fees, failing to communicate with clients, failing to make timely filings on behalf of clients, and failure to timely comply with the Grievance Committee’s requests.
Representation for Attorneys Facing Disciplinary Action in Raleigh, NC
The lawyers in Cheshire Parker Schneider & Bryan, PLLC’s professional license defense practice represent attorneys who are facing disciplinary action by the NC Bar. If you have received a Letter of Notice from the Grievance Committee, we can help you assess your situation and seek to protect your license. To speak with an attorney at our Raleigh, NC offices in confidence, please call (919) 833-3114 or inquire online today.
Cheshire Parker Raleigh Family Law Attorneys named 2017 Top 100 North Carolina Super Lawyers and Rising Star
Family Law Attorneys John Parker and Kimberly Bryan were also named 2017 Top 100 North Carolina Super Lawyers.
CPSB is pleased to announce that Family Law Attorney Amy Britt has been named 2017 North Carolina Rising Star, six years in a row.
Congratulations to this years recipients!
Some noteworthy changes to the professional ethics and conduct rules for Certified Public Accountants (CPAs) in North Carolina went into effect on May 1, 2017. The amended rules include the following:
1. 21 NCAC 08N .0203 Discreditable Conduct Prohibited
Rule .0203 prohibits CPAs from engaging in conduct that is “discreditable to the accounting profession.” Under the revised rule, listed examples of “discreditable conduct” now include:
- acts that reflect adversely on the CPA’s honesty, integrity, trustworthiness, good moral character, or fitness as a CPA;
- stating or implying an ability to improperly influence a governmental agency or official;
- failing to comply with any order issued by the Board;
- failing to fulfill the terms of a peer review engagement contract;
- misrepresentation in reporting CPE credits;
- entering into any settlement or other resolution of a dispute that purports to keep its contents confidential from the Board; or
- failing to participate in a peer review program pursuant to 21 NCAC 08M .0105.
Failure to participate in a peer review program is an addition from the previous version of the rules.
2. 21 NCAC 08N .0208 Reporting Convictions, Judgments, and Disciplinary Actions
Section (c) of Rule .0208 has been revised to clarify the conditions under which a CPA must notify the State Board of certified Public Accountant Examiners (the “Board”) of a settlement with a client or firmer client. The revised language states:
“A CPA shall notify the Board within 30 days of any written settlement in which a client or former client releases the CPA from liability that is grounded upon an allegation of professional negligence; gross negligence; dishonesty; fraud; misrepresentation; incompetence; or violation of any federal, state, or local law, regardless of whether the client or former client has filed a civil suit or criminal charge.”
3. 21 NCAC 08N .0305 Retention of Client Records
The revisions effective May 1 include substantial changes to Rule .0305, which governs the retention of client records. The changes affect CPAs’ obligations with respect to the delivery or return of work product, and also acknowledge that state and federal regulations may impose obligations to deliver work papers to clients even when such obligations are not imposed by the Board. The revisions also clarify that CPAs may charge fees for their time spent in retrieving copies of work papers at a client’s request (in addition to charging any copying costs incurred). CPAs are not required to convert records into electronic format; however, “[i]f the client requests records in a specific format and the records are available in such format within the CPA’s custody and control, the client’s request should be honored.”
Contact the Raleigh CPA License Defense Attorneys at Cheshire Parker
The professional license defense attorneys at Cheshire Parker Schneider & Bryan, PLLC provide experienced representation for CPAs facing disciplinary action in North Carolina. To speak with an attorney at our offices in Raleigh, please call (919) 833-3114 or request a consultation online today.
The Stark Law and Anti-Kickback Statute are federal laws that impose civil and criminal penalties for a wide range of practices in the context of providing Medicare and Medicaid-reimbursed health care services. While these statutes are extraordinarily complex, much of their focus is on prohibiting transactions that result in referral fees and other forms of compensation being paid out of federal health care benefit programs. This includes payments made in connection with “self-referrals,” where a physician refers a patient to a health care provider in which he or she owns a financial interest or maintains a financial relationship.
Federal law enforcement and health care agencies such as the Department of Justice (DOJ) and the Department of Health and Human Services’ Office of Inspector General (OIG) have taken a strong stance against Stark Law and Anti-Kickback Statute violations. With the potential for penalties including civil fines, loss of Medicare and Medicaid eligibility, and even federal imprisonment, any health care provider facing an investigation or audit under these statutes must take its situation very seriously. An investigation does not have to lead to a conviction, or even federal charges. Providers accused of paying or receiving unlawful compensation will often have several defenses available.
Safe Harbors and Exceptions in Stark Law and Anti-Kickback Statute Investigations
While the Stark Law and the Anti-Kickback Statute contain broad prohibitions, they both also include numerous safe harbors and exceptions that physicians and other providers can use to insulate themselves from liability. These provisions include (but are not limited to):
- Bona Fide Employment Exception – Under the Stark Law, physicians who are in a “bona fide employment relationship” are entitled make referrals to their employers and receive fair-market-value compensation for their services, provided that their compensation is in no way tied to client referrals.
- Personal Service Contract Exception – Under the Stark Law, physicians can receive compensation through contractual “personal service arrangements,” provided that their compensation is in no way tied to referrals and certain other conditions are satisfied.
- Nominal Non-Monetary Compensation Exception – The Stark Law also includes an exception for nominal non-monetary compensation paid to a physician who provides referrals, once again provided that the compensation and referral relationship are unrelated.
- Anti–Kickback Exceptions – The Anti-Kickback Statute contains an employment exception similar to the Stark Law exception discussed above, and includes various other exceptions that apply to service and prescription drug discounts, payments to purchasing agents, and risk-sharing arrangements.
- Anti–Kickback Safe Harbors – The Anti-Kickback Statute includes “safe harbor” provisions that establish guidelines for lawful compensation relationships. When these guidelines are followed, a payment will not trigger liability even if it otherwise constitutes a violation of the statute. Safe harbors exist for facility and equipment leases, certain types of investments, personal services contracts, practice sales, referral services, discount and group purchasing programs, and a variety of other contractual relationships.
Raleigh Federal Criminal Defense Attorneys for Physicians and Health Care Providers
If your business or practice is facing a federal investigation or health care contractor audit, we can help. Our attorneys bring decades of experience to representing clients accused of federal health care law violations in North Carolina. To get started with a confidential initial consultation, please call (919) 833-3114 or submit our online contact form today.
If you have been arrested for driving while impaired (DWI), understanding your situation is important, and it can also be extremely complicated. In North Carolina, DWI cases are far more complex than most people realize, and both state law and the U.S. Constitution will play critical roles in establishing your defense.
To understand your rights, you first need to learn the basic terminology. Here is a summary of some of the key legal terms that will play a role in your DWI case:
After a DWI arrest in North Carolina, the first court date is called an arraignment. Arraignments happen quickly, usually within a few days of the arrest. At the arraignment, you will appear before a judge who will read the charges against you, and you will have the opportunity to state whether you intend to represent yourself, hire legal counsel or request a court-appointed attorney. You are also entitled to have legal representation at the arraignment, and hiring a lawyer at this early stage can help mitigate any potential consequences of your arrest.
Field Sobriety Tests
Field sobriety tests (FSTs) are physical examinations that police officers perform in order to attempt to discern whether a driver is intoxicated. There are three “standardized” tests that will most often be used: the horizontal gaze nystagmus (HGN) test, the one-leg stand test, and the walk-and-turn test. While you are not legally required to take the FSTs, if you do, your results can be used against you in your DWI case.
Under North Carolina law, all drivers give their “implied consent” to submit to a breath or blood test when the police have reasonable grounds to believe that they have been driving under the influence of alcohol. If you violate the implied consent law (i.e. by refusing to take a Breathalyzer test):
- The prosecution may be able to use your refusal against you in your DWI case, and
- You can face an additional charge (and additional penalties) as a result of your refusal.
Motion to Suppress
In many cases, the prosecution will attempt to introduce evidence that is legally inadmissible. There are several reasons why evidence may be inadmissible, including lack of relevance, undue prejudice and having been obtained in violation of Constitutional standards. When the prosecution attempts to introduce inadmissible evidence, your attorney can seek to keep it out of your case by filing a motion to suppress.
While some DWI cases go all the way through trial, prosecutors and defense attorneys commonly negotiate plea agreements out of court. If a plea agreement is the best option in your case, your attorney will help you understand the consequences of both accepting the plea and going to court so that you can make an informed decision.
Probable cause is the legal standard that applies to DWI arrests. Under the Fourth Amendment to the U.S. Constitution, the police cannot make an arrest in the absence of probable cause. Lack of probable cause is justification to have any evidence obtained after your arrest excluded from your case.
Reasonable suspicion is the legal standard that applies to traffic stops (note that being stopped does not equate to being arrested). Similar to lack of probable cause, lack of reasonable suspicion can be grounds to file a motion to have any subsequently-obtained evidence suppressed at trial.
Speak with a Raleigh DWI Lawyer in Confidence
The criminal defense attorneys at Cheshire Parker Schneider & Bryan, PLLC provide aggressive legal representation for individuals facing DWI charges in North Carolina. To speak with an attorney about your case in confidence, call (919) 833-3114 or request a consultation online today.
Whether your goal is to save on expenses or maintain as much personal freedom as possible (or, as is perhaps most common, a combination of both), operating a virtual law office (VLO) has grown into a viable option within the legal profession. These days, more lawyers are spending the majority of their time working from home, having less direct contact with clients, and relying heavily – if not exclusively – on the Internet in all aspects of their practice.
While virtual law offices are subject to the same ethical requirements as more-traditional law firms, practicing in a VLO raises some unique ethical considerations as well. For example:
1. VLOs and UPL
Thanks to the Internet, a home-based solo practitioner can reach a worldwide audience with the click of a button. While this can be a good thing for demonstrating your competence and capabilities (i.e. through blog articles, third-party publications and other forms of content marketing), it also raises some potential concerns about the unauthorized practice of law (UPL).
With regard to issues of UPL, North Carolina’s Rules of Professional Conduct (the “Rules”) not only address attorneys licensed in the state, but also those licensed in other jurisdictions who are targeting in-state residents and businesses. Other states have similar rules as well. As a result, the North Carolina State Bar advised in a 2006 Formal Ethics Opinion that, “a prudent lawyer may want to research other jurisdictions’ restrictions on advertising and cross-border practice to ensure compliance before aggressively marketing and providing legal services via the internet.”
2. Convenience vs. Competence and Conflict Avoidance
Another potential concern for virtual lawyers touches on one of the most-basic rules of ethical practice: providing competent representation to the client. When communications take place over email, in chats and text messages, and through standardized questionnaires and forms, it is possible for both the lawyer’s and the client’s (or prospective client’s) intent to get lost in translation. While operating a virtual practice gives lawyers the freedom to be available 24/7 (or not), it also raises the risk that the quality of the representation will be inherently impaired.
The same issues also raise potential concerns regarding conflict checks. Identifying potential conflicts often requires an in-depth discussion so that the lawyer can gain a clear understanding of the prospect’s business or personal circumstances. In many cases, prospective clients will need to be educated on the issue of conflicts in general as well. Without adequate communication, lawyers may find it difficult to be confident that they are complying with the Rules’ conflict-of-interest requirements.
3. Electronic Records and Confidentiality
While there are now numerous service providers that offer online document storage specifically designed for VLOs and other law firms, the recent Yahoo data breach and other high-profile cases show that data security remains a significant concern. Internet-based law firms must not only make sure that their file storage systems meet the necessary standards, but that their email applications and other communication tools sufficiently protect their clients’ confidential information.
Contact Cheshire Parker Schneider & Bryan, PLLC
Cheshire Parker Schneider & Bryan, PLLC is a law firm with offices in Raleigh, NC that represents attorneys in matters involving ethical issues and professional license defense. If you have questions about establishing a virtual law office, or if you are facing an ethical issue in your practice, call (919) 833-3114 or contact us online for a confidential consultation.