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Federal Judge Enhances Cell Phone Privacy

A federal District Court Judge in Pennsylvania applied the doctrine known as “Act of Production Immunity” to prohibit the U.S. Securities and Exchange Commission (SEC) from forcing defendants accused of insider trading to disclose the passcodes necessary for the government to access their phones.

Act of Production Immunity is an outgrowth of the Fifth Amendment right against self-incrimination.  Under it, a defendant cannot be required to disclose the contents of their mind, even if doing so is not by itself incriminating, but may lead to the government discovering incriminating evidence.

Importantly, the court found that the passcodes were not corporate records, even though the smartphones themselves were property of the defendants’ employer.

The full opinion from SEC v. Huang et al is available here: US v. Huang et al – Opinion.

This opinion is another win for privacy in the technological age.  The 11th Circuit Court of Appeals in 2012 prohibited the government from forcing a defendant to decrypt his computer hard drive.  In both that case and Huang, the court determined that the government did not have particularized knowledge of the contents of the encrypted device to be able to access the device under the “foregone conclusion” exception to Act of Production Immunity.

Under the foregone conclusion case law, the act of providing access to a certain device (or safe or other private space) is not “testimonial” under the Fifth Amendment if the government can show with “reasonable particularity,” “at the time it sought to compel the act of production, it already knew of the materials” being sought, which would make any testimonial aspect of providing access to the device a “foregone conclusion.”  This exception has the potential to swallow the rule, so privacy advocates should take heart that judges have required the government to have specific knowledge of the item(s) it seeks access to in order to avail itself of the foregone conclusion exception.

The Fourth Circuit also recently enhanced the protections of individual privacy in its opinion US v. Graham – Opinion.  In that case, the court determined that the government must obtain a warrant before reviewing historical cell-site location records (records that show approximately where a cell phone has been), at least when reviewing the records for an “extensive” 221 day period.  (See Orin Kerr’s discussion of the case at WaPo: Fourth Circuit adopts mosaic theory, holds that obtaining “extended” cell-site records requires a warrant.)

Each of these cases show courts attempting to apply the Constitution to new technologies, and each of the rulings have important implications for Raleigh criminal defense attorneys in their attempts to protect the privacy of their clients.  If you are being asked to disclose your computer password or cell phone passcode to police, call a criminal defense attorney.


Cracking Down on Drunk Driving

One of the biggest contributors to drunk driving is the fact that each individual driver makes the determination on whether he or she feels sober enough to get behind the wheel, and often after a few drinks, impaired judgment has a hand in making that call.

So many times, a driver thinks he is “not that drunk” or has “only had a couple beers” and will be fine to make it the short distance home. All too often, he or she is making such decisions while drunk or tipsy. Not only does this choice put the driver and others on the road at risk for potential accidents, but it could also land the driver in serious legal trouble.

Because drunk driving is such a problem and such a common crime with high potential for disaster, law enforcement officers and legislators are constantly on the lookout for ways to deter drivers from getting behind the wheel when they are too drunk to safely drive. In North Carolina, legislators have enacted some of the toughest drunk driving laws in the country and most are aimed specifically at repeat offenders with histories of drunk driving.

Laura’s Law and What’s Next for NC
In 2011, the state’s lawmakers passed “Laura’s Law,” which redefined habitual drunk driving offenders and increased penalty options for those who fell into the new definition. Laura’s Law stipulates that anyone who has had four or more DUI/DWI convictions on his or her record is considered a repeat offender. Repeat offenders who were charged with a fourth or subsequent drunk driving offense would be subject to increased penalties, including higher fines, harsher criminal charges and longer prison sentences.

Now, the state’s legislators are hoping to amend these statutes even further. Earlier this year, two bills sponsored by Democratic Representative Darren Jackson of Wake County were introduced and both parties showed significant support. In his introduction, Jackson cited traffic statistics from 2013, which demonstrate that nearly one-third of all traffic and car-accident related fatalities in North Carolina involved drunk drivers.

The first measure, House Bill 31, deals with convicted drunk drivers and sets restrictions on those who have had their licenses suspended as a result. These offenders are typically on their first drunk driving charge and would be prohibited from driving with any amount of alcohol in their systems.

House Bill 32 is the second part of the initiative. The measure plans to set further limitations on the criteria for labeling a driver as a “habitual” DUI offender. Although under Laura’s Law, the habitual drunk driving label is assigned after four convictions within a ten-year period, House Bill 32 wants to lower this to three convictions within the same 10 years.

Habitual drunk driving will be treated as a felony offense. Convicted persons would be required to spend a minimum of one year in jail and complete a substance abuse program either during the jail sentence or after as part of their paroles.

At Cheshire, Parker, Schneider & Bryan, we represent anyone who has been charged with drunk driving in North Carolina. To discuss these new measures, and how they may affect your case, contact a Raleigh DWI lawyer at the firm for a consultation today.


Driving on a Suspended License

If your license has been suspended, legally, you are required (and expected) not to drive until that suspension has been lifted. Still, as most of us know, just because an individual’s license is suspended, it does not physically prevent him or her from driving if the individual chooses to ignore the suspension period. Keep in mind though — when you ignore a license suspension, you risk increased penalties that could aggravate existing traffic or criminal charges against you.

What Happens When Your License Gets Suspended?
Typically, a person’s license is suspended because he or she has been caught engaging in unsafe driving practices or breaking the state’s traffic laws. Common reasons for having your North Carolina driver’s license revoked include:

• Unpaid court fees and costs
• Failure to show up for a scheduled court date in any county within the state
• Driving under the influence of drugs or alcohol
• Accumulating 2 speeding tickets over 55 mph in the same year
• Accumulating 12 DMV points in 3 years
• Accumulating three DMV points in three years with a license suspension on your record

As you can see from the list above, points on your license can be stacked over a lengthy period to create a more severe penalty. You may be thinking that one or two speeding tickets and a minor traffic violation, like running a red light, may be small transgressions, but when the points start adding up, your license could be revoked for up to a year as a result.

What Happens When You Get Caught?
If your license has been suspended and you are still driving, you are risking heavy fines and penalties, not to mention an even longer suspension period. Pleading guilty to driving on a suspended license will earn you an extra year of suspension.

Thanks to changes in North Carolina legislature in December of 2013, driving on a suspended license is now considered a Class 3 misdemeanor and can be penalized with up to 20 days in jail, as per N.C.G.S. 20-28(a). Prior to December 2013, this was considered a Class 1 misdemeanor, so the laws have been bent a little to reduce sentencing.

However, this change occurred in conjunction with the introduction of a new offense — driving while your license is revoked or suspended due to a DUI/DWI charge. This is considered a Class 1 misdemeanor and you could be penalized with up to 120 days in jail, extended revocation or suspension periods, and it could be extremely difficult to obtain a valid license once your suspension period has expired.

Similar to the complications of a combination DUI/suspended license charge are any situations where you have a pending criminal charge and you have been caught with a suspended license. Depending on the type of charges you are facing, you could be looking at increased penalties, additional suspension timeframes or more.

At the North Carolina law firm of Cheshire, Parker, Schneider & Bryan, we represent anyone who has been charged with criminal activity, including driving on a suspended license. If you are facing license suspension, or if you have been caught driving with an invalid license, you may be able to have your charges reduced or dismissed depending on the circumstances of your case. For more information, contact a Raleigh traffic offense lawyer at the firm for a consultation today.


Amy Britt Updates the NCBA’s Family Law Section History

In 2014, the North Carolina Bar Association published an updated History of the Family Law Section spanning from 1980 to 2013. Co-authoring the history was one of Cheshire Parker’s Raleigh family law attorneys, Amy Britt. Attorney Lynn Burleson of Tharrington Smith provided the original history spanning the years from 1980 to 2003, while Ms. Britt provided the data and narratives for the following decade. The report includes a history of section membership, officers and council members as well as the range of services and legal education seminars the NCBA has provided to family law attorneys across the state. This collaborative document exemplifies the changes that have taken place in matrimonial law in the last 35 years.

You can view the History of the Family Law Section online at the North Carolina Bar Association’s website here with an NCBA membership login: https://www.ncbar.org/media/444946/history-of-the-family-law-section-with-alb-additions-1162015.pdf

The Family Law Section of the North Carolina Bar Association promotes improvements in family law practice and jurisprudence by legislative changes, legal education, practice guides, pro bono legal services and mentoring programs. The Family Law Section provides information on legal and policy developments relating to children and families. The section also sponsors CLE programs on equitable distribution and an intensive seminar in family law in alternate years, thereby furthering the knowledge of its members in all matters relating to family law. The section provides members with a substantive newsletter and helps mold the association’s legislative agenda for presentation to the General Assembly.



Laura’s Law

In North Carolina, drunk driving charges are ranked in severity according to grossly aggravating factors, aggravating factors and mitigating factors. Before 2011 and Laura’s Law, any drunk driving instance was subject to five different levels of sentencing, the highest of which was a Level 1.

A Level 1 offense consisted of two grossly aggravating factors or the single aggravating factor of carrying a passenger under the age of 18 in the car at the time of the DUI offense. At Level 1, a DUI charge would carry a minimum of 30 days in jail and a maximum sentence of 2 years.

In 2011, North Carolina’s General Assembly passed Laura’s Law, an ordinance that has changed how drunk driving is categorized and sentenced throughout the state. The statute was named for Laura Fortenberry, a 17-year-old from Gaston County who was killed after a drunk driver collided with the car in which she was a passenger in the summer of 2010.

The driver at fault had been cited and sentenced for several drunk driving instances before and was heavily intoxicated at the time of the accident. To cut down on repeat offenders driving drunk and to more heavily penalize drivers who have multiple DUIs in their history, the state enhanced their drunk driving sentencing process.

Aggravated Level 1
Under Laura’s Law, the state has added a sixth level of sentencing designed specifically to penalize repeat drunk drivers. The Aggravated Level 1, or Level A1, involves any case where three or more grossly aggravating factors have been found. Level A1 sentences can only be applied to drunk driving charges that occurred after December 1, 2011, when the law took effect. These charges can be penalized more severely with a maximum term of three years in jail and a minimum sentence of one year — longer than the state’s penalties for certain felony crimes.

A driver who has been convicted of a DWI at the A1 level cannot reduce or shorten the active jail sentence by choosing alternative penalties such as inpatient treatment, rehabilitation or driver’s education courses. The set amount of time in jail is predetermined and cannot be adjusted.

The only exception for this is in cases where the driver who has been charged agrees to use a Secure Continuous Remote Alcohol Monitoring (SCRAM) bracelet. The SCRAM bracelets, worn at the ankle, are designed to act as on-the-go breathalyzers and monitor the wearer’s blood alcohol content by collecting samples from the air around the body.

If the person has consumed any alcohol, the SCRAM will be able to detect the change in blood alcohol content through the person’s sweat glands. The device collects samples at designated times, usually once or twice an hour, to keep the wearer in check.

At Cheshire, Parker, Schneider, and Bryan, we represent people charged with a drunk driving offense, including those charged at aggravated levels under Laura’s Law. If you have questions regarding your charges, or need legal representation, contact a Raleigh DWI lawyer at our firm today.


Age and Criminal Activity

Criminal charges are filed in one of two places—juvenile or adult court. Where you end up depends largely on your age and the severity of the crime you have been accused of committing. In most states, minors under the age of 18 are considered juveniles and are handled according to specific statutes and sentencing requirements that typically include a probation or rehabilitation period designed to turn the accused person’s life around at a young age.

In North Carolina, however, state law currently requires 16- and 17-year-old offenders to be tried as adults, even if they have committed misdemeanors or other minor offenses. Now, legislators and advocates are pushing to change this law and provide better options for minors to serve their punishments and get their lives back on track. Currently, North Carolina and New York are the only states that treat 16 and 17 year olds as adults automatically.

HB 399 – Young Offenders Rehabilitation Act
Support for the proposed measure is coming from all sides, including lawmakers and law enforcement officials who spend a lot of time catching young people in the act of committing minor crimes. New Bern’s former police chief Frank Palombo shared his support in a statement: “If you don’t change this law, those kids out there, bunches of them are going to commit misdemeanors and they’re going to be subject to a lifelong commitment of a stupid mistake they made.”

The bill, HB 399, is known as the Young Offenders Rehabilitation Act. It focuses on providing options more appropriate to the accused person’s age and offense, options that focus less on punishment and more on rehabilitation. The bill would establish a juvenile jurisdiction advisory committee and create a civil citation process for juvenile offenders that includes anyone aged 16 and 17 who have committed misdemeanor crimes. In short, the bill would “raise the age” that separates adult and juvenile misdemeanor offenders from 16 to 18 years old.

Unfortunately, the bill does not seem to be going anywhere this session.

Why We Support Raising the Age
Scientific studies regarding the adolescent brain continue to illuminate how the brains of juveniles (those under 18 years old) differ from adults’ brains. This science is beginning to explain how those physical differences in the brain often lead juveniles to make bad decisions that they will come to regret.

In other words, science shows us that the bad actions of juveniles often do not reflect the character and judgment the young person will possess later in life. For that reason, juveniles should be treated differently by our criminal justice system than adults, and science further suggests that this leeway should be extended to 16 and 17 year olds.

People often deserve a second chance—a chance to show that they have learned from a mistake. Juveniles deserve this second chance even more than adults, though, because they are simply not yet fully-formed humans, and thus their character is not yet formed. They are therefore more likely to change their behavior.

So, rather than automatically treating 16 year olds as adults—often by sending them to prison, training them to be career criminals, and imprinting upon them the label “criminal” for life—we should be working to steer young people away from crime and help them learn from their mistakes and become productive adult citizens.

Raising the age legislation accomplishes these rehabilitative goals by allowing judges to decide whether to treat 16 and 17 year olds as juveniles, while still allowing them to treat certain 16 and 17 year olds as adults depending on the history and characteristics of the accused and the nature of the offense.

At Cheshire, Parker, Schneider, and Bryan, a Raleigh criminal defense law firm, we represent teens and young adults who have been charged with minor or serious crimes and may be facing a trial in adult court.

Juvenile offenders are more likely to commit additional crimes if they have spent time in adult prison, studies show, while rehabilitation and probation centers tend to correct bad behavior and establish better habits. By trying children as adults for even minor crimes, our criminal defense attorneys fear that the state will foster more criminal offenders.

If your child has been charged with a criminal offense of any kind and will be facing a hearing in adult or juvenile court, contact an attorney at Cheshire, Parker, Schneider, and Bryan to discuss your options today.


Facing Both State and Federal Court Charges

Many defendants face charges in both federal and state courts. When this happens, complex issues arise involving jail credit, the development of defenses and sentencing, and skilled Raleigh federal criminal defense attorneys can help navigate these issues to protect the accused from pitfalls that can lead to increased sentences or even double punishment.

When a case is charged in state court in North Carolina, it means that the state has brought the charges. Similarly, cases in federal court are brought by the United States Attorney’s Office and the person charged has been accused of breaking a federal law. Charges can be brought at either the state or federal levels or both, depending on the circumstances and the criminal activity involved.

A federal charge is not necessarily more serious than a state charge (although the potential punishments are often greater in federal court), but when a person is charged in both state and federal court, the person often faces complications not present in a normal case. For example, the accused may face a wider variety of charges requiring the development of additional defenses, and the penalties in state and federal court may or may not overlap, meaning that the real possibility exists that the accused may face double punishment for the same offense.

Other complications arise from the different sentencing procedures. Below are a few of the complications that need to be worked out by a criminal defendant and the defense attorney in a case where the accused is charged in both state and federal court.

Custody Issues
The first step to take when facing federal and state charges in a case where the defendant is in jail is to determine which jurisdiction will exercise primary custody. Primary custody determines whether the accused will get credit against any sentence for time served in jail prior to trial or plea. If the accused is first arrested on the state charges, it is unlikely that he or she will received credit for time served in jail to reduce an eventual federal sentence.

When possible, it is important to consult with Raleigh federal criminal defense attorneys early on in a case to try to ensure that any time spent in custody will count towards a sentence in the event of a conviction.

Sentencing Issues
The federal and state sentencing structures differ dramatically, as do the practices in those courts regarding plea bargaining. For example, in state court in North Carolina, the Structured Sentencing provisions control and require that a sentence be within a certain range based on the class of the offense—with Class A felonies requiring life in prison or the death penalty and Class H and I felonies requiring probation or short prison sentences for those with light criminal records.

In federal court, on the other hand, the judge must consider the United States Sentencing Guidelines in fashioning the sentence, but the judge, in most cases, can sentence the defendant to whatever sentence the judge determines is appropriate under the facts up to a maximum set by law (usually 5, 10 or 20 years). Moreover, in state court, the government does not generally conduct a detailed pre-sentence investigation (except in Chatham County where a pilot program is underway).

In federal court, the pre-sentence investigative process is lengthy, detailed and very important for the outcome of the sentencing. It is therefore important to consult with Raleigh federal criminal defense attorneys when faced with possible charges in both state and federal court.

Select the Right Attorney to Represent You in Both Courts
A variety of custody and sentencing issues can crop up when a person has been charged with criminal activity at both the state and federal levels. An attorney who is familiar with both courts can help you prevent pitfalls and can provide a thorough defense in both arenas. At Cheshire, Parker, Schneider & Bryan, our Raleigh federal criminal defense attorneys represent clients in both the state and federal courts and help determine how best to navigate complexities involved in dual jurisdiction cases.


Video Sweepstakes on the Radar

With the help of federal officers, the state’s Alcohol Law Enforcement (ALE) teams are leading the charge against video sweepstakes by launching several recent raids on businesses throughout eastern North Carolina. These efforts are aimed at shutting down illegal operations and seizing sweepstakes and other similar machines.

According to Don Connelly, spokesman for the U.S. Attorney, there are ongoing investigations and searches in “multiple locations” throughout the Eastern District of North Carolina, which runs from Granville, Wake, Harnett, Cumberland, and Robeson counties to the coast. And earlier this month, multiple warrants were served at sweepstakes establishments by the federal agents who were assisting the regional team.

It is currently unclear whether charges are forthcoming, but it is known that the federal government has seized millions in assets from businesses using the federal asset forfeiture procedures in its anti-sweepstakes efforts.

What’s the Legal Issue?
Video sweepstakes and video poker players usually purchase an online access card or a phone card to play these games, and with the card, they can gain game time on the sweepstakes machines. These machines offer an opportunity to win cash prizes. Throughout the state, there are many sweepstakes halls, some of which regulate the games with zoning rules and tax assessments that they claim legalizes the practice.

For many years, North Carolina’s Attorney General has been pushing for an end to video poker and video sweepstakes games throughout the state, and he is a vocal supporter of the state laws that ban these machines. Other critics of the video games say that players are paying money to gamble and that the additional products purchased to obtain game time are unnecessary and often unused as a result.

In December of 2012, the North Carolina Supreme Court ruled that a law passed in 2007 banning video sweepstakes games is constitutional and must be enforced. In some counties, law enforcement agencies responded immediately, shutting down gaming centers and confiscating machines, while other counties have been slower to react, leaving the games and machines untouched. However, legal battles continued over various enforcement actions.

Then, in April 2015, the North Carolina Supreme Court declined to review two Court of Appeals opinions upholding the criminal convictions of business owners for violating the anti-sweepstakes law. Law enforcement authorities have interpreted this court action as a green light to begin strongly enforcing the law.

Call an Attorney
As law enforcement officials continue to crack down, business owners offering video sweepstakes, video poker and other gaming activities should be wary. To discuss your case with a Raleigh criminal defense attorney, contact the team at Cheshire, Parker, Schneider, and Bryan for a consultation today.


North Carolina Court of Appeals

If you have been found guilty in a criminal trial or liable in a civil action, the judge usually imposes a sentence or civil judgment based on the severity of your crime or civil wrong and the laws and penalties associated with that crime or civil wrong. When this happens, you may feel like you are out of options. You may believe that your case was mishandled or the jury wrongly convicted you of a crime you did not commit or held you accountable for a civil wrong you were not responsible for.

But a criminal sentence or civil judgment is not the end of the road for many people, according to Raleigh criminal appeal attorneys. The North Carolina Court of Appeals can give convicted felons who are dissatisfied with their sentence, trial or any other aspect of their due process right to present their cases one last time.

Created in 1967, the North Carolina Court of Appeals is the only court of its kind in the state. The constitutional amendment that instituted the Appellate Court designates it as “an intermediate court of appeals to relieve pressure on the North Carolina Supreme Court.” The 15 members of the appellate court take turns sitting in groups of three to hear cases.

These judges are chosen by statewide elections, and serve for eight years in staggered terms. The Court of Appeals hears all civil appeals, as well as non-capital criminal appeals and direct appeals from administrative groups from the state’s District and Superior Courts.

The Process

In appellate court, the majority of appeals are decided on the basis of briefs that present arguments for why the appellant should get relief and records created in the trial court. Appeals do not conduct a new trial where witnesses testify and a jury makes another decision. Therefore, many criminal appeal attorneys in Raleigh place heavy emphasis on constructing a compelling brief. In order to prepare for an appeal, appellate lawyers need to reconstruct the evidence from the record and present their client’s arguments for relief in a written brief.

Sometimes the Court of Appeals will hear oral arguments from a defendant’s lawyer. In North Carolina, these oral arguments are typically addressed in the Court of Appeals courthouse in Raleigh, although sometimes the court will hold them in a law school or some other appropriate venue. After the oral argument hearing, the panel of 3 judges confers in private and votes on how to decide the case. Their decision is later announced and explained in a written opinion that is sent to the lawyers and published on the Court of Appeals’ website.

Other Duties

The Court of Appeals also hears motions and petitions, including the following:
• Writ of supersedeas – seeking a stay of a lower court’s decision
• Writ of certiorari – seeking review of a lower court decision when a person’s right to appeal has been lost by failure to take timely action and in certain other special circumstances

File Your Appeal

Convicted defendants can file for an appeal if they feel that a mistake has been made at any point in their case, or if they feel they have been unjustly convicted or penalized too harshly. At the Law Offices of Cheshire, Parker, Schneider, and Bryan, we represent convicted persons who have been abused by the system and deserve a second chance in the courtroom.

If your case has been handled improperly, you believe the prosecutor, defense attorney or judge on your case made a mistake, or your rights have been violated at any time during your arrest, the investigation, booking or your trial, contact one of our criminal appeal attorneys today to discuss your options for appeal.


Mediate Your Divorce

The process of divorce can be painful, difficult, and far too public in most cases. Most couples could greatly benefit from mediation services, and many divorce mediation attorneys in Raleigh promote this as a first step—or even the only step—to obtaining a resolution.

Many states require couples who have filed for divorce to attend mediation sessions before they go to trial. In North Carolina, couples must try mediation before their child custody and equitable distribution trials can take place. For most couples, mediation may not have been their first thought when filing their lawsuit, but the process can be much easier, less public and more amicable than a trial in court.

What is Mediation?

Mediation is a dispute resolution option that allows a divorcing couple to air out their grievances and concerns and discuss terms for settlement in front of a neutral third party — the mediator. The mediator can be an attorney or other professional who has been trained in dispute resolution and can help the couple work through their issues.

In mediation, the divorcing couple has the power to make decisions, unlike in a courtroom, where the judge determines the arrangements. Mediation also gives couples an opportunity to “tailor make” their arrangements, hopefully with each side being understanding to the other’s needs.

Raleigh divorce mediation attorneys say the process is typically friendlier because the spouses can state their concerns and fears and work with the neutral mediator who assists them in understanding the other spouse’s perspective. Mediators can help couples determine what would be in the best interest of their children and what would be a reasonable financial resolution.

You Still Need a Lawyer

Although mediation is a great alternative to allowing a judge to decide the issues, a mediator cannot offer you and your ex-spouse legal advice. The mediation process works best when combined with the counsel of an who is well-versed in mediation and negotiations and who can provide the legal perspective for separating assets, determining child custody agreements and evaluating alimony and child support proposals.

If you have opted to use mediation, typically, you are responsible for the fees charged by your attorney, as well as the half of the mediator’s fee. This can be a more economical option for some people, as lawsuits require more resources and time investment.

At Cheshire, Parker, Schneider and Bryan, we have attorneys who serve as mediators to assist you in reaching an agreement with your spouse. We also have years of experience representing clients in the mediation process. Our divorce mediation lawyers urge clients to try mediation as a dispute resolution alternative. Mediation can help couples reach a compromise without dragging their families through a drawn-out, costly and, potentially, ugly court process. Please contact us if you are in need of a mediator or a divorce mediation attorney to discuss your options for alternative dispute resolutions.


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Cheshire Parker Schneider, PLLC 133 Fayetteville Street Suite 400 Raleigh, NC 27601 | Phone: (919) 833-3114