NORTH CAROLINA CRIMINAL LAW: FAQs

Q. If I am under investigation, do I have to talk to the police?

A. No. If you are in custody, police officers are required to inform you of your right to remain silent. Any statements made to investigators after you are informed of your rights can, and will, be used against you in court. You can refuse to answer questions at any point and invoke your right to have an attorney present. If you decide to answer questions, however, you cannot give false information or you may be charged with obstructing justice or giving false information to law enforcement officers.

Q. What happens if I am arrested?

A. You will be processed, and probably fingerprinted depending on the charge. Unless you are charged with domestic violence, you will be taken before a magistrate and a bond will be set. (Bond in domestic violence cases is usually set by a District Court Judge. You can be held up to 48 hours waiting for a judge to set the bond. If it is not set within that time period, a magistrate is permitted to set the bond.)

Generally, you can either get someone to pay the bond amount on your behalf or you can hire a bondsman to put up the bond. Sometimes the magistrate will release you on your own recognizance. You may also be released on certain pretrial conditions, without being required to post a bond. If someone is willing to put up the bond for you, the bond amount will be returned to that person upon completion of your case. Bondsmen in Wake County, North Carolina generally charge about 15% of the bond amount. The bondsman keeps that amount regardless of what happens with your case.

If you are in jail, you will be brought before a District Court Judge for your first appearance within twenty-four hours of your arrest (or at the next available court session if you are arrested on a weekend or holiday). If you are charged with a felony and you are able to post bond, you will have to return for your first appearance at the next court session. At that time you will be advised of the charges against you and of your right to have an attorney represent you, and a new court date will be set. Indigent persons may receive a court appointed attorney.

Q. Do I need an attorney for misdemeanor or traffic charges?

A. Only you can make this decision. You have the right to represent yourself if you wish. In North Carolina, the most serious misdemeanors can result in jail time, even if you have absolutely no prior record. For example, first time offenders who are charged with assault with a deadly weapon, assault on a female, or the violation of a domestic violence protective order face up to 60 days in jail. In addition, judges may impose serious fines and/or order probationary sentences for misdemeanors. Certain offenses, such as driving while impaired, can result in lengthy drivers license suspensions and hefty increases in your insurance premiums.

Q. If I am suspected of driving while impaired, do I have to submit to a breathalyzer test? What if I refuse?

A. Before asking you to submit to a breathalyzer, police officers should advise you of your rights with regard to breathalyzer tests. If you refuse to submit to a breathalyzer, a wilful refusal will result in an immediate thirty day suspension and at least an additional one year suspension of your drivers license. This is true regardless of whether you are convicted for driving while impaired. You can get a limited driving privilege in cases of wilful refusal, but you must wait at lease 6 months before you are eligible.

You have the right to have a witness or attorney present at the administration of the test. However, officers are not required to wait more than thirty minutes for such witness. If this time period elapses and you still refuse to take the test, it will be considered a refusal. You also have the right to request that a qualified person of your choice administer a chemical analysis test in addition to any test given by the officers.

If you decide to submit to the breath test and you register a blood alcohol level (BAC) of .08 or higher, or a BAC of .04 or higher in the case of commercial motor vehicle drivers, or any alcohol concentration in the case of persons under the age of twenty-one, there will be an immediate thirty day civil revocation of your drivers license. If you qualify, you can get a limited driving privilege after ten days, or you can recover your license at the expiration of the thirty day period. Keep in mind, however, that if you are later convicted for driving while impaired there will be at least an additional one year suspension of your drivers license.

To ensure reliability of the breath test results, there are complex rules governing the administration of breath tests. Results of the breath test are only admissible in court if there is compliance with such rules. For example, because residual mouth alcohol can alter the results of a breath test drastically, the administrator of the test must observe your activities for at least fifteen minutes to ensure that you have not eaten, vomited, or belched immediately prior to submitting to the test. If you have submitted to a breath test, you should contact an attorney to determine whether the results of such test can be challenged.

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