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Coronavirus, Courts, and Continuances in North Carolina - Part 3



Raleigh Criminal Defense Attorney John Fanney joins Law Talk with Bill Powers to discuss criminal charges and the courts during the Coronavirus Outbreak.


John Fanney: Oh no, oh no. Yeah, not at all. We have to advise people with that all the time. In fact, we have had to work with folks on the other end, representing folks who want protective order issued, explain to them that the process involves us looking at the evidence, that maybe a crime gets committed in the future. I referenced earlier someone threatening to put pictures of an ex-girlfriend on the internet. That's a crime in and of itself now if the photographs contain sexual activity or private parts of the body as defined by our [inaudible 00:22:25], excuse me, our statutes. We've been able to send letters of caution to folks saying, "Hey, please don't do this. We don't want to see you charged with a crime, but please understand that we will seek to have you charged with a crime if you continue to do certain things." That kind of goes back also to the 50B at times forms the basis for people to end up being charged later, be it months, I don't say years, but months, weeks later we see folks getting charged.

Bill Powers: That's not that you wouldn't have a valid, I guess, cross examination question on the issue: "Why did you do this? Was it a vindictive prosecution? Are these false allegations?" That may be a basis to challenge something in a criminal charge. Again, there's no statute of limitations on felony charges. With grand juries not having convened in some jurisdictions, you said Wake County has be convened, I think Charlotte's about to spool back up, there may be very good reasons why something has not been indicted or holding off on probable cause. Let's-

John Fanney: That's exactly right.

Bill Powers: Let's pivot a little bit because there's more going on than just these DVPO kind of cases. We're getting questions about traffic tickets and things like that, which I'm sure you handle. Is there an administrative way where you're contacting the DA's office and working through speeding tickets? Or what are you working on during the coronavirus right now? Looking at discovery? What's going on?

John Fanney: Well, we're not doing very many speeding tickets. Our DA's office is short staffed, and our courts have decided they're not going to do anything except the absolute basics. There are times when we can negotiate some pleas and some felony cases, like drug charges, because those courts are open, but nobody really wants to do a plea right now. But we are handling traffic cases. We are handling cases where people are trying to get their license restored. I've gotten a lot of calls lately about people... They're now taking time to look at themselves going, "Hey, I've been without a driver's license for a few years. I need DMV conditional restoration hearing," or "I lost my license for DWIs a few years back, and I'm trying to get my license reinstated or get my license back." I get a lot of calls for that lately, and we're working through those cases.

Bill Powers: Those, at least for me, they tend to take a little bit more time. There's a preparation aspect of them. Now that you mention, I hadn't really thought about it, we've had a fair number of calls regarding NC DMV issues, just questions like, "Well, they say I have to have an ignition interlock device, and it's been 10 years. Do I still have to have it?" or, "I need to get my driver's license back." Then our first question is, "Why is it revoked?" We may pull a record check. We had one yesterday where we found out, "Well, you have three pending cases in one county and another in another county. Until those are cleared up, NC DMV's going to continue to suspend or revoke." I personally like to take the time to analyze the record as a whole even though DMV, they're closed down by this as well.

John Fanney: That's correct. I've spoken to a couple of folks this week who have lost their license for driving while license revoked, or moving violations while their license was suspended, driving while impaired charges. They cannot even get a hearing. I had a gentleman who called yesterday about a medical review hearing where a doctor or a law enforcement officer or a family member has contacted DMV and said, "There's a medical issue with this person. We don't feel like they're safe to drive anymore," and DMV has taken action to take their license for a medical problem. Unfortunately, they're just not having these hearings right now. But there is work that we can still do with that. We do a lot of prep work with those issues. We have to meet with clients and gather doctor's information, like in the medical review process, or we have to work with witnesses and DMV conditional restoration hearings or permanent revocation hearings. I even had a guy call me last week for a habitual impaired driving restoration hearing. So folks are trying to get there, and we're trying to help them.

Bill Powers: I don't really think about the medical review ones because we don't see those in Charlotte. I think, is it Raleigh?

John Fanney: They're all held in Raleigh-

Bill Powers: Which is great for you.

John Fanney: ... all medical review hearings. Yes, that is. Unfortunately, folks have to travel, but that's the way it's been deemed by statute. They have to come to the DMV offices here in Raleigh, Wake County, and have to go through the Medical Review Board.

Bill Powers: Let's talk a little bit about... What we're talking about today is during this shut down... Presently, the governor has a stay-at-home order, which there are all kinds of exclusions. The North Carolina Supreme Court has issued an order regarding courts. There are local... At least we have one in [Meckler] County. We have a Meckler County order. Is there one in Wake County going on right now?

John Fanney: There is a Wake County stay-at-home order, if you will. I think there's been some modifications this week allowing folks to get out a little more. I think they've mildly increased the number of folks who can gather together, and there's [inaudible] out for folks to go to church or mosque or whatever it is they feel like they need to do other than sit at home.

Bill Powers: The governor's order, my understanding is, that says that if there's a local order that's more restrictive or more comprehensive, it's in addition to the statewide stay-at-home order.

John Fanney: Yes, that's true. In fact, earlier this week there was a little dust up, if you will, about which order is important, and this is goes back to what was talking earlier about how important criminal defense lawyers are in this time period. There was a protest here in Raleigh early this week against these stay-at-home order, and the Raleigh police first allowed the protests to take place. Then after an hour or two hours or so, someone decided that they were in violation of the stay-at-home orders. These are at the state level or the local level. The Raleigh police shut down the demonstration and later actually tweeted that your rights to free speech, not necessarily in those words, but the ability to demonstrate was a non-essential activity. Actually, one person got charged with a crime as a result of a violation of these orders.

Bill Powers: I have not seen one of those yet in Charlotte. I would expect and I anticipate we're about to see some action taking, reintroducing or gradually opening up Charlotte, but if that had not happened, I would anticipate more of these type of charges coming down the pike where people-

John Fanney: I think that, yeah.

Bill Powers: ... are going to challenging that.

John Fanney: Failure to disperse. I think that's the charge that this individual was charged with, a failure to disperse. There's also a crime for actually violating an emergency declaration-

Bill Powers: It'll be interesting to see-

John Fanney: ... [crosstalk] here in North Carolina.

Bill Powers: It'll be interesting to see if the governor's order can be enforced with the criminal law, whether it's constitutional. I think it's fair to say, if people want to be a civil disobedience type of person, there are consequences to that, and there are some people who are going to get arrested.

John Fanney: That's true. That's true.

Bill Powers: I would not tell clients, "You should assume a dismissal." That's something else that I think it's real important clients realize that. I think clients-

John Fanney: Yeah, yes. I've been following this closely, and I'm not sure how the court system... We've only got one case so far, and I hope there won't be more. I hope all these issues can be worked out and people can exercise their constitutional rights to assemble or redress grievances or petition the government, anyhow you want to phrase that, without there being court action against them. But it is important to remember that law enforcement, if they're told to perform an activity, they don't have much choice but to perform that activity. Unfortunately, if that means someone gets arrested, they need a good lawyer to help them through the process because I just don't know at this point whether it's going to be a, "Hey, sorry, we got it," and just dismiss your case. You do need to seek legal counsel if some of these things have happened to you, or if you think you're going to be involved in some activity, you might want to consult with an attorney before you do that.

Bill Powers: That brings up another point. I don't know if irritant is the right word to me, but I regularly get emails, inquiries saying, "How do I get my dismissal?" Meaning, "Well, I've never had any trouble before." This is true whether they're going 100 miles an hour or charged with trafficking cases. I don't know when it happened, but people seem to think that because they've had no prior record, it's an automatic dismissal. It's a guarantee. It's a matter of right. I know what I think about that but, John, your experience, I mean heck, you're a board certified [crosstalk 00:32:14].

John Fanney: Well, in my experience it's the same. I get a lot of this particularly in DWI cases: "Well, I'm a good person. I've never even had a speeding ticket. Can't you just go to the DA and show them my record, and they'll dismiss the case or reduce the charge?" Unfortunately, that doesn't happen. I see it all the time. I see folks goes, "Well, why can't I have my thing automatically dismissed?" It doesn't work that way. I have a lot of clients, particularly right now, who are calling wanting to know if I can go and negotiate a dismissal of their pending cases because this coronavirus shut down is going on. Unfortunately, for the folks who aren't in custody or aren't sitting in jail, that's just not a consideration. At some point the process is going to have to pick up again. We're going to have to go back to court. We're going to have to go through our due process procedures, criminal procedure, and resolve cases. I just don't see it being... It's not a mulligan or a gimme that you're going to get your case dismissed.

<< Part 2 | Part 4 >>

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