Criminal Defense FAQ
(Question): Can I get a DWI conviction expunged from my record?
(Answer): In North Carolina, if you are convicted of driving while impaired (DWI), whether by entering a plea or being found guilty at trial, you will not be eligible to have the conviction expunged. Under the current expungement laws in North Carolina, you are able to have nonviolent misdemeanor convictions expunged after a five year waiting period. While a DWI would be considered a nonviolent offense, there is no specific DWI expungement law making these convictions eligible for expungement.
(Question): Is a DWI a felony or misdemeanor?
(Answer): In North Carolina, a DWI can be charged as either a misdemeanor or a felony. While the vast majority of people charged with DWI face misdemeanor charges, if certain factors exist, the charge automatically becomes a Class “F” felony and is termed Habitual Impaired Driving. In order for a DWI in North Carolina to be charged as a felony, the person must have three (3) prior DWI convictions all within ten (10) years of the current charged offense of impaired driving. In the event that a person is charged with Habitual Impaired Driving, they face a minimum of twelve (12) months in prison, which cannot be suspended and a permanent revocation of their driving privileges in North Carolina.
(Question): What will happen to my license when I am charged with a DWI?
(Answer): In North Carolina, upon a refusal to the breath test or a reading of a .08 where you are charged with a DWI, you will have your license revoked for a period of 30 days from the day you are charged. Provided you meet certain requirements; we can get you a limited driving privilege after 10 days of that revocation are up so that you can drive from day 11-30 of your civil revocation. After that time, you can pay a restoration fee to the courthouse to have your hard license restored.
(Question): What will happen to my license if I am convicted of a DWI?
(Answer): If convicted of a DWI in North Carolina, your license will be revoked for a period of 12 months. There are certain requirements that you need to meet to get a limited driving privilege. This privilege starts on the day of conviction and takes you all the way until you are eligible to receive your license. In the event that you have an out of state license, North Carolina cannot revoke you license, but your privilege to drive in the state of North Carolina will be revoked. You would still be eligible for a limited driving privilege.
(Question): Are there different types of misdemeanors?
(Answer): Misdemeanors are divided into four different categories (A1, 1, 2, and 3), depending on the seriousness of the offense.
A Class 3 misdemeanor, the least serious type of misdemeanor, carries a maximum penalty of twenty days in jail and a $200 fine. Class 3 misdemeanors include simple possession of marijuana, concealing goods in a store, and city code violations.
A Class 2 misdemeanor carries a maximum penalty of sixty days in jail and a $1,000 fine. Class 2 misdemeanors include simple assault, disorderly conduct, resisting a police officer, and carrying a concealed weapon.
A Class 1 misdemeanor carries a maximum penalty of 120 days in jail and a discretionary fine. Class 1 misdemeanors include possession of drug paraphernalia, larceny, possession of stolen goods, damaging real or personal property, communicating threats, and prostitution.
A Class A1 misdemeanor, the most serious type of misdemeanor, carries a maximum penalty of 150 days in jail and a discretionary fine. Class A1 misdemeanors include assault with a deadly weapon, assault inflicting serious injury, assault on a female or a government employee, violation of a restraining order, and sexual battery.
(Question): What penalties could you face if you are convicted of a misdemeanor?
(Answer): You could face three different types of penalties if you are convicted of a misdemeanor crime. They include the following:
- Active Punishment. Active punishment involves a jail sentence that you would serve in a local jail or other confinement facility.
- Intermediate Punishment. You could face an intermediate punishment if the judge sentences you to supervised probation. Terms of your probation could include house arrest with electronic monitoring, drug treatment court, satellite based monitoring, and some small periods of time in a jail or other confinement facility.
- Community Punishment. Community punishment does not include jail time. You would most likely face a fine, possible probation, or community service.
(Question): What are my options if I am charged with a misdemeanor?
(Answer): If you have been charged with a misdemeanor, your case will be heard in District Court. You may have a number of options in your case.
- Your attorney can negotiate a plea deal where plead guilty to a lesser charge.
- Your attorney can show the District Attorney what a strong case you have or why the charges are bad and the DA will dismiss the case.
- If witnesses do not show up to court the case can ultimately be dismissed if the witness never shows up.
- Depending on your criminal record, you may be eligible to participate in a community-service or substance-abuse counseling program that will result in dismissal of your case. This is called a deferral program.
- You can plead “not guilty” and request a trial.
(Question): Will a misdemeanor show up on my record?
(Answer): Unfortunately, whenever anyone is charged with a crime, the record remains forever unless it is expunged.
(Question): What sentence could be imposed if you are convicted of a felony?
(Answer): North Carolina’s classification of a felony and its sentencing schedule is complicated. Like misdemeanor charges and sentences, each felony crime is assigned a class which is compared to the person’s criminal history to determine the sentence level. All felony convictions come with the possibility of a jail or prison sentence.
(Question): What types of crimes are felonies?
(Answer): In North Carolina, the types of crimes considered to be felonies include:
- Armed robbery
- Serious drug offenses --- possession, drug smuggling, drug trafficking
- White collar crimes --- money laundering, racketeering, embezzlement, structuring, security fraud, tax evasion
- Fraud --- healthcare fraud, bank fraud, mail fraud, welfare fraud, wire fraud, internet fraud
- Domestic violence
- Tax evasion
- Driving while impaired (DWI)
- Drug crimes --- possession, manufacture and trafficking of a controlled substance
- Traffic violations --- speeding tickets, moving violations, hit and run, driving with a revoked license
(Question): What are the classes of felonies and their sentence ranges?
(Answer): North Carolina has a sentencing grid to determine the sentencing range for felony convictions. It utilizes the class of felony, level of the person’s prior convictions, and disposition ranges in setting the sentence. Felonies are organized into 10 different classifications from Class A to Class I, with Class B felonies divided into Class B1 and B2. Class A felonies are the most serious and include murder, while Class I felonies, such as larceny of a dog, credit card fraud, and domestic violence, are the least serious. The prison sentencing range is as follows:
- Class A: Life without parole or death
- Class B1: 144 months in prison to life without parole
- Class B2: 94 to 393 months in prison
- Class C: 44 to 182 months in prison
- Class D: 38 to 160 months in prison
- Class E: 15 to 63 months in prison
- Class F: 10 to 41 months in prison
- Class G: 8 to 31 months in prison
- Class H: 4 to 25 months in prison
- Class I: 3 to 12 months in prison
(Question): What is the disposition range?
(Answer): The disposition range is the possible length of the sentence to be imposed. To determine it, the judge uses the person’s prior record level and felony classification, and potential aggravating or mitigating factors to arrive at a range. These are the possible disposition ranges:
- Presumptive range. This is the standard sentencing range and will often be imposed unless there are mitigating or aggravating factors.
- Aggravated range. Aggravating factors include that the crime was especially atrocious or cruel, that the victim was very young or old, or that the person was hired to commit the crime. If aggravating factors exist, the aggravated range of sentences would be used.
Mitigated range. The judge can consider a number of mitigating factors, such as the person’s financial support of his family, his taking of responsibility for his crime, or his belief that his actions were legal in imposing a sentence in the mitigated range.
(Question): What criteria do I need to meet to qualify for expungement?
(Answer): The criteria is:
- Met the required waiting period for the record you want to expunge
- Paid all your court-ordered costs and provide proof that you did
- Cannot be on parole or probation with any court, anywhere
- Have no warrant for your arrest or a criminal summons
- Have no open criminal cases
- Have no pending criminal charges
(Question): How long is the waiting period to qualify to get a misdemeanor or felony conviction expunged?
(Answer): A misdemeanor conviction can be expunged after 5 years. A felony conviction can be expunged after 10 years.
(Question): Will expunged charges show up on a background check for jobs?
(Answer): No. However, non-expunged charges and/or convictions will show up on an employer’s background check. This includes any dismissals, infractions, prayers for judgement, pending charges and non-guilty verdicts.
(Question): What offenses may not be eligible for expungement?
(Answer): A resident who has committed any of the following offenses may not be eligible to receive an expungement:
- Offenses that involve the operation of a commercial motor vehicle
- Offenses that are constituted as hate crimes
- Offenses that involve the possession, sale or distribution of controlled substances
- Offenses that involve assault in any form (child abuse, aggravated assault, domestic violence, sexual assault etc.)
- Offenses that obligate a person to have their name placed on the state sexual offender registry.
(Question): Is it mandatory that I appear in court for a traffic ticket?
(Answer): Most tickets require that you appear either personally or through an attorney. In some cases, you may be able to pay the ticket online, however, if you do this then you are pleading guilty to the charge and you may end up finding your insurance has gone up by doing so.
(Question): Are traffic ticket fines the same throughout North Carolina?
(Answer): Yes, fines, along with court costs are uniform throughout NC.
(Question): Will my car insurance rates increase if I plead guilty to a traffic violation?
(Answer): Check with your car insurance company. Each insurance provider in North Carolina maintains different policies regarding traffic violations. You should also compare auto insurance rates online to ensure you're getting the best deal.
(Question): How many driving points can I accumulate on my driving record before the state suspends my driver’s license?
(Answer): If you accrue 12 points or more on your driving record within 3 years, the state may suspend your driver’s license.
It’s important to note that getting 8 points on your record in NC in the 3 years following the reinstatement of your suspended license could result in another suspension.
(Question): I received a NC traffic ticket. I live in another state. Is the North Carolina ticket going to affect my insurance?
(Answer): While the Department of Motor Vehicles in your home state will probably become aware of the North Carolina traffic citation, the question of how the citation will affect your insurance depends on your local DMV and how your NC traffic ticket is handled.