What You Need to Know About Misdemeanor Drug Offenses
Jan 4, 2018
Being charged with a misdemeanor drug offense can be a scary situation. This podcast episode is here to help.
North Carolina Attorney Bill Powers has been defending misdemeanor drug offenses for 25 years. In this episode, Attorney Powers answers the questions that matter to you when you when you've been charged with a... Read More.Modified Transcript of “What You Need to Know About Misdemeanor Drug Offenses” for the Hearing Impaired
Announcer: You're listening to Law Talk with Bill Powers. Your resource for answers to your most pressing legal questions. Attorney Bill Powers sits down with some of today's leading legal minds to discuss everything from legal issues and legislation to practice tips and policy. Now, here is your host an MBTA board certified criminal law specialist, former president of the North Carolina Advocates for Justice and renowned trial lawyer, Bill Powers.
Robert Ingalls: Welcome back to another episode of Law Talk with Attorney Bill Powers. I am Robert Ingalls and I will be your guest host for this episode. I am sitting here with Bill Powers and we're going to be talking about misdemeanor drug offenses today. How are you, Bill?
Bill Powers: I am well.
Robert Ingalls: Alright. Good to be here, man. Thanks for having me involved again. I love this. I know you have been doing criminal defense for a number of years. How long have you been dealing with misdemeanor drug offenses?
Bill Powers: You mean as an attorney? I've been practicing since 1992, so I guess it's relative to when someone is listening to this. So, right now it's 2017, about the end of the year.
Robert Ingalls: It's a good minute.
Bill Powers: A couple of decades.
Robert Ingalls: You're dating yourself a little bit there. One of the questions that I know is in my mind, not that this is something I deal with, but what do you in that moment that you have been pulled over and they found something, perhaps in your car, or they've come to your house, they've searched your person. Now, you are either holding a citation or you have found yourself in an orange jumpsuit. What do you do?
Bill Powers: Stop talking. The first thing you do is stop talking. In fact, the thing you do before you stop talking is stop talking. I wish people would exercise their fifth amendment right to remain silent. It's like the saying, "I have the right to remain silent, but not the ability," and I borrowed that term. I think the best thing is to when you're in Dutch, when you're in some trouble is to stop talking.
If you've got a citation, if you've been arrested, it's time to realize that talking thus far has not helped you in any way most likely. I guess it's possible. Let me think of some situation, but generally speaking, you don't want to be talking about what took place further with the police offer while you're riding down to the jail, or if you're in the jail, you don't want to be talking to your new best friend, the cellie, about what happened.
You don't want to be talking on the phone or the video chats that they have now with our jails, because those are often times recorded. The person you want to speak to and talk to is an attorney, because we have something called attorney client privilege. It actually should be called client attorney privilege, because it's your privilege and the attorney enforces it or protects it. The things you tell me as your lawyer, I keep confidential.
I don't talk about it. I don't discuss it, and by affording that privilege under the law, the idea behind it is that lawyers can provide sound advice or counsel to the best way for you to proceed. There's a reason they call us attorneys and counselors at law. We counsel you. The only person, really, you should be talking to about your case is your lawyer. That's something I found over years, is I wish so many times people had stopped talking. It would have made their lives and my job easier.
Robert Ingalls: Gotcha. It sounds like, perhaps, the first thing you should do after you stop talking is call an attorney.
Bill Powers: Sure, and that's assuming you're not still in the hoosegow. That's assuming that you're out of jail. I would say half our cases, especially the more serious cases, are family members calling. We tell the family the same thing, "Don't talk about the case. If you go into the jail, don't talk to them about the facts of the case. Do not discuss the facts of the case on the telephone or video conference channel. Don't talk about the case."
Robert Ingalls: Is that stuff when it gets to court, if they had talked about it, it could be used in that moment?
Bill Powers: Sure. I have seen it. They roll the cart out ... I didn't even know they made boomboxes anymore, but they rolled out a boombox and played the tape, and I'm showing my age, they played the DVD or CD. I've had cases where they introduce the letters that people have written back and forth to one another. You don't really have a lot of rights to privacy in jail.
Robert Ingalls: When the inmate writes a letter out, it gets read on the way out?
Bill Powers: I haven't seen that as much as I have seen incoming mail. Now having said that, as soon as I said that, I did have a case where it was an outgoing letter, but it was more of a conspiratorial type of thing. They may have [inaudible 00:05:05] and since gotten a warrant, but don't just assume that because you put an envelope that some United States Postal Service right protects you.
Robert Ingalls: Err on the side of caution. Don't put things down in writing that you don't want to be read later in the court of law.
Bill Powers: Perfect. I couldn't have said it better.
Robert Ingalls: One of the most common ones that I hear about is small charges, and people seem to almost feel like since it's not against the law in other places, maybe it's not that big of a deal here anymore, something like having marijuana or having a pipe on you. What does that set you up for? Is that something that you need to take seriously?
Bill Powers: Absolutely. I always try to preface my comments by saying that we offer advice not judgemental, kind of getting on people. We're not trying to be judgemental at all. This is me giving information on the state of the law in North Carolina as it is, not as opposed to what I think it should be or what it may be in other states.
So, I tell people, "I am not telling you what I think the law is or that it is fair. I'm just telling you what the law is," and unfortunately, I don't think people take these charges seriously enough for a host of different reasons, but even if you're not looking at jail, and misdemeanors, the likelihood of you getting jail is slim if not impossible in some instances, but there are consequences other than court.
Now, you mentioned a very common type of citation we see. Someone's got some weed on them and then in order to introduce the weed into yourself, they've got something we refer to as paraphernalia. I always forget how to spell that, but it's got a lot of vowels in it, but basically we're talking about rolling papers, pipes, bong, the baggies, scales, grinders ... I show my age, apple. The paraphernalia, believe it or not is a more serious charge than the weed itself with a asterisk or [calcaviette 00:07:22] on the side. It depends on how much marijuana you have or weed you have.
There's exceptions to every rule, but generally speaking, you and I are talking about a simple weed case, and you've been issued a citation for weed and paraphernalia. Paraphernalia is a class one misdemeanor. It carries 120 days max in jail. Weed is a class six level or category six level drug. It's low. It's as low as it gets, really.
Robert Ingalls: So, if you're carrying around a little bit of weed in your pocket, you're not going to be in that much trouble, but if you put that weed into a pipe and put something on and light it, now you're in quite a bit more trouble.
Bill Powers: Right. I have actually seen it like, unless you're carrying your weed around in your pocket outside a baggy, which I don't know many people that do. Normally, they put it in a ... sometimes you see some creative things ... a shaving cream can. The container itself, the modality of transporting your weed can be deemed paraphernalia. I never really understood that, but the the method of introducing it, or storing, or holding it, or keeping it is more serious of a criminal offense than the drug itself.
Robert Ingalls: So, is the public policy that you should carry weed around in your pocket?
Bill Powers: I guess if you don't mind lint. As a practical matter, it's very rare now to see a weed case without some other accompanying paraphernalia. I guess it's possible. The interesting question is, if you roll it in a joint, does that joint suddenly become, the marijuana is part impartial as opposed to the paper itself is that the paraphernalia? Technically, under statute, it probably is.
Robert Ingalls: So you say that's an interesting question. In practice, when this comes up, how does the judge deal with that?
Bill Powers: In practice, it never comes up. I can't ... we occasionally get paraphernalia cases where there's not weed. Officer pulls up, they use a car stop and they smell the odor of burnt marijuana and they find a pipe, or they find a bong or something and there's no weed left in it, maybe there's some residue or something, and we're dealing with that solely, but most of the cases we see is someone's got a bag of something. Then they're charged with the primary charge of the marijuana.
[inaudible 00:09:54] in North Carolina is I really haven't seen a whole lot of ... I thought it became legal out west, basically in California, Colorado, Washington, I thought I would see a lot of edibles in North Carolina and I haven't. I haven't seen a ton of edible charges. So, I haven't seen any paraphernalia related charges with edibles that I can think of.
We tend to see maybe a grinder. We tend to see more pipes. We don't see bongs anymore. I guess they've fallen out of favor. We see rolling papers, pipes, and then a baggie of some weed.
Robert Ingalls: It sounds like maybe mixers and spoons and baking pans are coming next.
Bill Powers: Oh, you mean for brownies and things like that? I guess. I mean you make any oils and whatever, but that starts to ... we start talking more production, manufacturing. If you're going to get a grade for the course, that's going to be an F and F stands for felony. That's more serious.
Robert Ingalls: Gotcha.
Bill Powers: We're talking about just basic, you're at the pavilion. You're smoking some weed. Someone sees you and grabs you, and they grab the remnant, the roach or whatever and the next thing you know, you've got a citation and you're kicked out of the concert.
Robert Ingalls: Gotcha. To go back to what I said earlier where people as the kind of national view on it seems to be shifting, people seem to feel like it's not quite as bit of a deal. What are long term ramifications? If you are at that concert and you get caught with it, you get kicked out, and now you're dealing with a police officer. You've got a charge. What are the long term ramifications in your life?
Bill Powers: Court is the tip of the iceberg and the consequences are what are below the waterline. I spend a tremendous amount of time trying to help people get through what's happened to them as a result of the citation. Again, I'm not defending this practice, but there has been now in North Carolina and it's very recent. In the last, less than a year, I'd say even since the school this past fall, where the UNC system is aggressively pursuing activities outside of what took place on the campus.
Heck, just this week, I had someone in honor board or council, whatever they do at that particular school, even though the behavior did not take place at the school, they got a letter and said, "We want you to answer questions and we'll talk about kicking you out of school." I'm not talking about Title IX, necessarily. I'm not talking about scholarship athletes, which is a whole other practice area which we help people with.
I'm talking just some guy out at UNCC was somewhere where two or three people, everyone got citations and he really didn't know a whole lot about it, and now he's got this honor council thing. This week as well, it's been the week for these things. I have a kid that's applying to the different schools where he wants to go to state, or Carolina, or Appalachian, or ECU, and every school has asked for not just some explanation about a pending charge, but they want great detail.
This is before he's even been admitted into the university. In fact, one school has said that they will not forward your application onto the dean's office until this student, whatever student affairs, student council reviews it. I'm probably using the nomenclature wrong, but the point of the matter is, we used to worry as criminal practitioners about explaining a bad choice to a school due to a conviction or something.
Now, we very much have to front in or front load what we're doing and how we're going to address this issue and are we going to be proactive with the schools as kids are applying for them and attending them. First, there's college. Second are jobs. I don't want to disparage any particular type of job, but I have had cases where clients have called up and said, "I got something when I was 18. I was 19 and had a weed case. I just paid it off."
It's not really a ... they're not working for department defense type of deal. They want to be a manager at a restaurant or a clothing store, and the company says, "Sorry. You have a criminal conviction." I'm like, "Are you kidding me?" I was 18 years old. I was 16 years old. There are consequences now with work. It doesn't always have to be, you're driving a truck, or you got a school bus full of kids, or flying a 747. It could be working at just a normal company.
We're seeing much, much more of this. It's become exacerbated by the fact. You and I were joking earlier about this new thing called computers, but it's been exacerbated by the ubiquity of information in your hand as we sit here with our intelligent devices. There's more information available in the palm of my than there has been in the history of the entire world that I can access instantaneously. These records are public records.
It's very easy for employers to look and see what your involvement has been with the court system. I will tell you another thing. These kids, it drive me crazy, they don't realize this, social media. I've had murder cases before where involved substances alcohol, drugs, whatever, and they pulled the social media accounts. The things people are posting voluntarily about themselves partying, and smoking weed, and joking about what they're doing, popping bars and things like that to use some of terms.
It truly is the iceberg below the waterline. First of all, it's unseen. It's unknown in scope. It's unpredictable where it's going to particularly hit you, and while you may not think, "It's no big deal." It could have a Titanic effect on you, and I use that term intentionally, because it can sink your ship for a really ... life, very quickly and for a long time. You're not going to resurrect yourself in some instances. I'm not trying to be a Debbie Downer here.
We in the hierarchy of cases, I have mentioned a simple little weed all the way up to a second degree murder type of case and the courts recognize that, but it is frustrating to me to see the 16, 18, 20 year old kid coming in here going, "It's no big deal. It's legal in California." I'm like, "Hold on, Sparky. It can be a big deal. Let's be careful about how we proceed."
Robert Ingalls: All right. Someone has picked up that charge and they're sitting in your office. What are we doing next?
Bill Powers: First thing I would say in response to that question is, you may not be sitting in my office. In the last few years with the availability of technology, and we really want to make it easy on clients to consult with us, to work with us is we do a lot of stuff by video by secure remote video conferencing which means you can do it on your iPhone. You can do it on Android. You can do it on computer. We can have multiple people, which is really great in drug offenses, especially more minor ones with kids where maybe mom and dad may be together, maybe they're not together.
Maybe dad lives in Washington state and mom lives in Virginia and you're in school in North Carolina. We can do multi party conversations seamlessly remotely on schedules that are easy for everyone. So, the first thing is, you may not be sitting in my office. You may be sitting in jail where I go come see you. The second thing we do is I start asking a lot of questions. Okay? I analyze things in a very linear methodology. I use an analogy of tweetsie railroad. If you're from North Carolina, you know what tweetsie railroad is, but you have an old-fashioned steam engine.
You have a coal car. You have a series of box cars and then you have a caboose or a passenger car as the case may be, and the first thing I analyze is the locomotive is, "What is powering the case?" What kind of case do we have? What am I looking at? Is it a misdemeanor? Is it a felony? Is it multiple misdemeanors or multiple jurisdictions? What's going on? What was the basis of the stop? What was the basis of the encounter with the police officer? What was the probable cause for the arrest?
Then, the coal car I analyze. You can't have a locomotive without something to fuel the locomotive. We're looking at what are the consequences of this offense long term to you? What are options? Then, we look at car, after car, after car, and then caboose is the end and release. I analyze on the front end why did you come to be charged with this offense? By the way, if you receive a citation or are arrested, you're charged. If you get a criminal summons you're still charged. It's a misdemeanor.
The second thing we look at is ... How is there a way or is there a way to avoid a conviction? I often times, I speak in metaphors and similes or whatever, but it's easier for me to explain things to people and I think they understand it more and frankly that's 90 percent of my job is explaining a sometimes complex and crazy legal system to normally sane logical people and make them understand that just because how it works in the real world doesn't mean that it works that way in court, and just because something is not necessarily fair in a big picture, we're dealing with court.
I always say we're in the land of, "I have been charged", and I want to get to the village of "how do I not have a conviction on my record?" Do we go over the top of the mountain? Is there a direct path? Is it more circuitous? We know where we are. We know where we want to go. The question is how we get there. Now, does that mean we take something to trial? Do we go hardcore and argue about the legality of the stop or test the drug itself? Is it actually the drug they say it is?
I think a lot of people, I call it the Matt Locke kind of deal. You're going to go all Matt Locke on this case. Sometimes, we do that and most times we are able to work some other aspect out. Do we go through a deferral program? Do we go through some treatment? Do we get an assessment? Do we so some community service? Then we map out how we want to handle this. I don't like it when I hear people have said, "I'll just sign up for the class. I'm just going to handle it myself through the D.I.Y."
It may have not been the best idea for you. There may have been another option. Before you start taking action, it makes sense to say, "Stop. Timeout. Let's get a snapshot of where we are," and then assess what the most appropriate methodology is or the way it is to go forward with the case. I'm not trying to be stern about it. Again, I'm not trying to be judgemental with my client, but I want to sit down whether it's remotely or in the jail and start asking some basic questions.
I tell people, "I may interrupt you." I'm not trying to be rude, but there may be something I need to know that you don't realize is important, and if you go on, and on, and on about some extraneous fact, I may cut you off and say, "That's really not important. Let's focus on big picture items."
Robert Ingalls: I think that's important as well, because when I was in practice, that was something I saw is someone had done the DIY the first time, and they didn't realize that there has been another option available to them that we could have used the first time, and we could've used the option they used on time number two. Then, they would hae gone through and had no convictions. Instead, we were in a position where we ended having to go the Matt Locke route, because we didn't have that second option available to us.
Bill Powers: There is some things that you can DIY. I use Amazon and I look around and if I want a T-shirt ... I was actually, last night, looking and I loved these, you've heard of these flat Earth people. I want to get a flat Earth T-shirt. I want to be ironic and wear a flat Earth, I think the Earth is flat.
Robert Ingalls: I am aware of them.
Bill Powers: When you're buying a flat Earth T-shirt on Amazon and you see its 100 percent cotton, you're going with do I get free delivery and how much is it going to cost me? Do they have my size? Is it going to take me two days to get it? Am I in Prime or is it going to take me six weeks to get it? Law isn't that way, or it shouldn't be that way. One, I guess you could buy a screen printing machine and make your own T-shirt, which is kind of DIY, but you don't always want to go with the cheapest option, or what you perceive to be the easiest option, because it's not always the same.
How cases are handled are not fungible goods. That's a law term meaning that it's just this widget a for price whatever. There's a bit of nuance to it. It's complex. There's a reason why it's a JD, which stands for jurist doctorate. I'm not trying to be a smarty pants here, but we go to law school and have to pass this really hard test for a reason, because this stuff's complicated and hard. Now, the DIY, I would say, and this is completely anecdotal. This isn't based on any statistic. It's based on a statistic I just made up in my head.
On an anecdotal basis, I'd say half the cases I see I'm like, "Why did you do that? That is not what I would have done. There may have been another option." Signing up for a class and they're like, "Oh, I got it dismissed." Well, maybe you got it dismissed, but maybe you wrote a statement as part of the dismissal where you've admitted on such and such a date I did knowingly, intentionally, willfully, and unlawfully possess blah, blah, blah and you signed the bottom of that, and now that's somewhere in the ether of your life on the internet that may or may not be able to be-
Robert Ingalls: Just waiting for someone to find it when you're running for office.
Bill Powers: Right or applying for a job, or wanting to get some sort of housing. I've said this before and I say it on almost an everyday basis, but I really believe it. The saying is, "Don't just stand there. Do something." Law is the exact opposite. Don't just do something. Stand there. Don't make the second mistake. The first mistake is what got you in trouble in the first place. The second mistake is trying to resolve it and not really thinking through the process. I'm not trying to sound like my dad here, but my daddy has put time up. Put his hands up and and say, "Time out. Blow the whistle."
When you do a time out and blow the whistle, that means actions stop. No one's doing anything. No one's dribbling the ball. No one's running back and forth. No one's trying to score any points, and it's not counting against you. The clock stops. It's part of the game. Not to say law's a game, but I'm using the idea that sometimes saying time out on life is a good thing. It's not just how cases are handled in court, but also what got you here. I take this role very seriously, and I don't know if law enforcement always realizes this, but we modulate the messages that clients are sending.
Sometimes we, in a very nice way, say, "That makes no sense." Sometimes people are suffering due to a substance abuse problem. They don't realize it, or sometimes things aren't going well in their life, and they get a citation and it's a snapshot what's going on in their overall life. We really try to help people get through these times. It's not meant to be judgemental, but I spend a lot of time counseling people and saying, "What go you here?" You'd be silly if you have any kind of criminal charge to just say, "Whatever," and not really think about what got you there.
That doesn't mean I'm saying, "Oh, you're a weed smoker. You're a terrible person." That's not my point, but what were the nature of the circumstances that police got involved and was it bad luck or was it something that was a matter of time? It was going to happen and is something worse going to happen?
Robert Ingalls: Right. I want to go back for a second and talk about the deferral options you were speaking about, because I think that sometimes the listener might not know exactly what those options are. They pick up a charge. What are these deferral options and how do they work?
Bill Powers: Sure. Great question. The answer is depends on where you're at, where you're sitting. Meaning where were you charged or where are the charges pending? North Carolina has got a hundred different counties and a bunch of different judicial and prosecutorial districts in those hundred different counties. What is available to you in Charlotte Mecklenburg may not be the same thing that's available to you in a joining county. Let's say Cabarrus Concord. That's a great example, because anyone that's practiced in the two, I'm not discouraging my friends in Concord, but it's a different world out there, a substantially different world.
The larger jurisdictions have more resources. We have more programs available. Heck, in Charlotte, I think we got five different driving schools the last time I checked for speeding tickets, whereas some jurisdictions driving school really isn't maybe even an option, or you have to do something online. There are some deferral programs that may be available in a larger jurisdiction. It may not be available in a smaller jurisdiction. For example, in Charlotte, we've got something called defer prosecution.
We also have a program called deferred light. We have something called CBI, which cognitive behavioral intervention. Then we have other jurisdictions where it's like, "Well, just get an assessment and follow through, and we'll do a dismissal." What works in one jurisdiction or what is available to you in one jurisdiction may not be available at another jurisdiction. There are some deferral type of programs that are limited to drug type of offenses where you have a 90-96 type of thing.
Sometimes you hear the 15A conditional discharge, and I'm not just trying to throw phraseology out here, but it's really complicated. I see people sometimes using a shotgun what a rifle would have done and you only get one shot with a rifle and you should be careful about limiting your options in the future.
Robert Ingalls: Sure, sounds like there's a lot of options and you should be careful making any decisions without talking to a professional first. Very good. One of the things I wanted to hit on before we wrapped up, is something that I'm starting to see more, and more, and more is people who had a charge, they got it dismissed and now they're still having trouble getting a job because that charge is on their record.
Bill Powers: What you're referring to is expunctions or expungement and how do you remove something from a permanent record, and indeed is it a permanent record? This is something that we're seeing more, and more, and more in North Carolina. This is a culture of courts type of system. We have seen some recent changes within the last year, 18 months regarding offenses that were traditionally adult offenses are now going juvenile and part of the justice initiatives program, which I have to compliment the people involved with that. I think it's a great idea to always analyze what we're doing and why we're doing it.
Can we do something better, but expungements, I tell people when I first open the file with them what it is, and then they'll call a year later and say, "I thought it was expunged automatically." I'm like, "No." An expunction ... it's almost like filing a lawsuit against the state. No, it's not filing a lawsuit, but it's more of almost a quasi civil type of preceding where you have to fill our a special form, and the judge assigned to the district orders the state bureau of investigation to do a record check and they send the record check back and it's all certified and looking all nice.
Then, if you're eligible, which the eligibility requirements on these things, I actually have a flow chart. I literally have a chart, and I go through, and it's a series of yes, no questions about whether you are eligible and what are the steps in order to have that happen. It is extraordinarily complex in an area of law that is rapidly developing. They change these things. They tweak these things. I say never assume that it's automatic. I have people who say, "I was convicted of first degree sex offense in 1983. I would like to have my record expunged."
I'm like, "Well, the likelihood of that is pretty slim." Expunctions, generally speaking, understand there are exceptions are, generally speaking, are for more minor offenses for people who have had a relatively clean record during a limited period of time, and there are some times where the age of the offender or the person charged is considered, both good and bad, meaning that you become eligible after a period of time, but not before a period of time. The type of charges matter.
We're looking at the past charge, your past convictions, your past record in North Carolina and other states, and it's a whole other area of law that frankly I'm concerned about. I've seen and I know people's hearts are in the right place, but these DIY clinics where this is how you do it expunsions and it's something that I'm really, really careful about. The only way I can describe it to you, is if you were an estate planning type of person. You'd want to make sure that you weren't inadvertently triggering some huge tax consequences, or you have acute tip trust and you've done something to void it.
You've got to be real careful with expunsions. We give free consultations. So, we'll tell you whether we think we can help. I get nervous when I know it's an extraordinarily complex area of law fought with a lot of pitfalls, and problems, and conditions precedent, and if you mess it up there's really not a lot I can do to help you.
Robert Ingalls: Sure. A follow up question, we were talking about when someone was not convicted and they just wanted the fact that they'd ever been charged off their record. Is there a way for you to actually have a conviction to get that off your record?
Bill Powers: Yes. With a long ... it depends on the type of offense and the age. Those are generally speaking, and the permutations accommodations of options are so numerous, it's kind of hard. I like giving straight answers and this is one where I'm just like, "It depends."
Robert Ingalls: It seems to me like the short answer is if you have a conviction and if you have that question, contact an attorney. There may be a way.
Bill Powers: Right, and to kind of meet people where they are, it depends how old you are. Generally speaking, if you're under a certain age and it's a relatively minor offense, you've had no priors there are some available avenues, but it's limited and it could change.
Robert Ingalls: Perfect. I think we have covered a lot of ground today. Is there any last words on this?
Bill Powers: Talk to a lawyer. We're here to help. We're normal people. We're friendly people. Criminal defense lawyers are generally pretty approachable folk. We enjoy helping people in court. We help. We don't judge, meaning we're not there to give you a hard time about anything. I've seen just about everything. It's sort of like going in the doctor. Don't worry about the mole on your back, I've seen worse.
Robert Ingalls: And stop talking.
Bill Powers: Stop talking, like me.
Robert Ingalls: All right, Bill. Thanks a lot. See you next time.
Bill Powers: All right, brother. Thank you.
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