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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.

4. Interrogations

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.

 

Elliot Abrams forfeiture win discussed in NC Lawyers Weekly

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.

 

Elliot Abrams represents individuals and businesses in asset forfeiture matters.  He can be contacted at elliot.abrams@cheshirepark.com.

 

State and Federal Authorities Targeting Opioid Crisis through Law Enforcement in North Carolina

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:

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:

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.

 

U.S. Attorney General: Federal Opioid Program Will Target Central North Carolina

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.

 

Defending Against Allegations of Unlawful Physician “Self-Referrals” and Anti-Kickback Violations

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):

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.

 

Understanding the Legal Terminology in Your North Carolina DWI Case

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:

Arraignment

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.

Implied Consent

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):

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.

Plea Agreement

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

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

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.

 

Potential Defenses in Qui Tam Litigation

For companies facing qui tam lawsuits in North Carolina, building a sound defense strategy is critical to minimizing the potential for government intervention and financial liability. Qui tam cases involve lawsuits filed by private citizens (called “relators”) on behalf of the government; and, once a suit has been filed, the government has a responsibility to investigate and make a determination as to whether to get involved. By taking an aggressive approach to qui tam defense, companies can often influence this determination, and ideally convince both the government and the relator that further litigation is unwarranted.

Qui Tam Defense: Pre- and Post-Intervention Strategies

While it only takes a basic allegation of fraud under the federal False Claims Act for a relator to initiate a qui tam lawsuit, far more is required – both substantively and procedurally – for the lawsuit to move past the initial pleading stages and ultimately lead to a finding of liability. Proving liability under the False Claims Act is a difficult task, and companies accused of government contract fraud, Medicare fraud and other violations will often have numerous defenses available.

Some of the more-common defenses in qui tam litigation under the False Claims Act include:

1. Procedural Deficiencies

As with all types of federal litigation, relators in qui tam actions must comply (and often strictly comply) with the Federal Rules of Civil Procedure (FRCP). Relators should not be given a “pass” on technical and procedural deficiencies, and challenging these deficiencies at the outset of the litigation can often – at the very least – slow down the process and begin raising questions about the relator’s case for the government’s attorneys.

2. Failure to File an Adequate Disclosure Statement

Along with the Complaint (the document filed in federal court to initiate the qui tam lawsuit), the relator must also submit a disclosure statement to the Department of Justice. This statement must include, “substantially all material evidence and information the [relator] possesses.” While the disclosure statement is not initially made available to the defendant, issues later discovered may provide grounds to seek dismissal of the case.

3. Insufficient Allegations to Support Liability

In order to establish liability under the False Claims Act, the relator’s allegations and evidence must support a finding of a certain level of intent. Generally speaking, submitting an inaccurate invoice or claim for payment to the government does not, standing alone, rise to the level of federal fraud.

In order to succeed in qui tam litigation, the relator and the government must typically be able to prove, at a minimum, that the defendant should have known about the false claim. As a result, even in cases involving legitimate allegations of false claims, defendants will often be able to present countervailing evidence to avoid False Claims Act liability.

Contact Cheshire Parker Schneider & Bryan, PLLC in Raleigh, NC

The federal criminal defense attorneys at Cheshire Parker Schneider & Bryan, PLLC provide experienced and strategic legal representation for companies facing qui tam lawsuits in North Carolina. To speak with one of our attorneys about your case, please call (919) 833-3114 or contact us online today.

 

Qui Tam Defense: What To Expect During Your Whistleblower Case

Under the federal False Claims Act, there are two primary ways that the Department of Justice (DOJ) can initiate a civil claim for reimbursement and other penalties. The first is through a government-initiated investigation. The Federal Bureau of Investigation (FBI), the Department of Health and Human Services (DHHS) and numerous other agencies investigate individuals and businesses for submitting false and fraudulent claims to the government; and, based upon the evidence uncovered during these investigations, the DOJ can either file a civil lawsuit under the False Claims Act or press criminal charges.

The second way that individuals and businesses can face liability under the False Claims Act is through a citizen-initiated action pursuant the law’s whistleblower provisions. This is known as a “qui tam” lawsuit, and it has both important similarities and differences to government-initiated enforcement litigation.

Overview of the Qui Tam Litigation Process

The following is an overview of the primary steps involved in a qui tam case under the federal False Claims Act:

The civil penalties in qui tam cases under the False Claims Act can be severe. The maximum penalties under the law include payment of three times the government’s losses (“treble” damages) plus fines of up to $11,000 per false claim. What constitutes an individual “false claim” is construed narrowly, and defendants in qui tam actions can often face hundreds of thousands – if not millions – of dollars in civil liability.

Schedule a Confidential Consultation at Cheshire Parker Schneider & Bryan, PLLC

If you or your company has been named in a qui tam lawsuit, it is critical that you hire an attorney to intervene in the government’s investigation as soon as possible. To schedule an initial consultation with the Raleigh federal criminal defense attorneys at Cheshire Parker Schneider & Bryan, PLLC, call (919) 833-3114 or contact us online today.

 

A Look at Police Mistakes That May Provide a Defense to DWI

Just like individuals who have been arrested for DWI can make mistakes that will harm their defense, arresting officers can make mistakes that will harm the State’s chances of a successful prosecution. In fact, even in cases where individuals who have been arrested have been drinking and driving, police mistakes will often provide defenses that can be used to avoid conviction at trial.

The following are four common examples of police mistakes that can provide defenses to DWI charges in North Carolina:

1. Lack of Reasonable Suspicion to Pull You Over

All police officers are subject to a number of Constitutional standards. One of these standards is that they cannot initiate a traffic stop unless they have reasonable suspicion that someone in the vehicle has been involved in the commission of a crime. If you were pulled over without reasonable suspicion, any evidence that the police obtained as a result of your traffic stop may be inadmissible at trial. Without evidence, the prosecutor’s office will be unable to build a case against you.

Keep in mind, however, that the reasonable suspicion does not have to relate to your drunk driving. If the arresting officer had reason to believe that you committed a different offense and then only discovered that you were intoxicated after pulling you over, you can still be prosecuted for DWI even though the officer lacked reasonable suspicion to stop you for driving while intoxicated.

2. Lack of Probable Cause to Make an Arrest

The Constitution also protects U.S. citizens from being arrested without probable cause. Probable cause is a higher standard than reasonable suspicion, so the police can lack probable cause to make an arrest even after a valid traffic stop. If a reasonable person would not have believed that you were driving while intoxicated, your arrest may have been invalid, and any evidence obtained following your arrest may be inadmissible to prove that you are guilty of DWI.

3. Improper Administration of Field Sobriety Tests (FSTs)

One way that the police can establish probable cause is by administering field sobriety tests (FSTs) after they pull you over. However, only certain FSTs have been scientifically proven to be reliable, and they are only reliable when they are administered appropriately. If the arresting officer used an unreliable test or did not follow the necessary procedures, his or her failure to do so may provide a defense to your DWI.

4. Improper Administration of Breath Test

The same also holds true for breath tests (breathalyzers). There are a number of factors that can contribute to faulty breath test results, and failure to calibrate testing equipment and other issues can taint breath test results as well. If police mistakes resulted in an inaccurate measurement of your blood alcohol content (BAC), the prosecution should not be able to use the tainted results at trial.

Arrested for DWI in Raleigh, NC? Speak with a Lawyer Today

In order to assert these defenses, you will need an experienced Raleigh DWI lawyer on your side. At Cheshire Parker Schneider & Bryan, PLLC, we bring decades of experience to defending clients against drunk driving charges in Raleigh, NC. To learn more about what we can do to protect you, call (919) 833-3114 or request a consultation online today.

 

What are Some Common Examples of Medicare Fraud?

Following the Department of Justice’s national $900 million Medicare fraud takedown earlier this year, the Department of Justice, the Medicare Fraud Strike Force and other federal law enforcement authorities are continuing to aggressively pursue cases of suspected Medicare fraud. Medical providers and others in the healthcare industry throughout North Carolina are increasingly at risk for becoming targets in federal investigations, with civil and criminal prosecutions having the potential to lead to huge financial liabilities, loss of eligibility for Medicare reimbursement and even time behind bars.

But, what exactly is Medicare fraud? More importantly, what can practitioners in North Carolina do to help protect themselves from facing federal charges?

Common Allegations in Medicare Fraud Investigations

“Medicare fraud” is a broad term that encompasses violations of a number of different federal statutes. Some of the most common examples of Medicare fraud allegations include:

The list goes on and on, and with the enormous complexity of the Medicare regulatory structure and billing system, it is not uncommon for physicians and others to face allegations when they have no knowledge of impropriety. Lack of knowledge can be a key defense in many Medicare fraud investigations, and you will want to promptly discuss your defense options with an experienced attorney.

Protecting Yourself (and Your Practice) in a Medicare Fraud Investigation

If you are facing a Medicare fraud investigation in North Carolina, there are several steps you need to try to take right away. Your goal should be to prevent the investigation from leading to civil or criminal charges, and the best way to do this is to hire an attorney to intervene in the investigation as soon as possible. Your attorney will be able to:

Contact the Raleigh Criminal Defense Attorneys at Cheshire Parker Schneider & Bryan, PLLC

If you would like to speak with an attorney about your Medicare fraud investigation in confidence, contact the Raleigh, NC law offices of Cheshire Parker Schneider & Bryan, PLLC. To schedule an appointment as soon as possible, call (919) 833-3114 or contact us online today.

 

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Cheshire Parker Schneider & Bryan, PLLC 133 Fayetteville Street Suite 500 Raleigh, NC 27601 | Phone: (919) 833-3114 Fax: (919) 832-0739