Q: I was charged with a DWI and I need a pretrial privilege.  What do I need to do?

A: Within ten days of being charged with DWI, you need to get a substance abuse assessment and sign up for the recommended treatment. (assessment providers); you need to contact your automobile insurance company and have them prepare a DL-123 verifying that you have liability insurance in effect.  (Your insurance company can FAX the DL-123 to my office at 919-821-5129.)  You need to arrange to obtain a certified copy of your driving record, which we can do if need be.  You should then call my assistant Johanna to schedule an appointment to prepare the petition for the pretrial privilege and the privilege itself.

Q: How do I make an appointment with Duncan McMillan?

A: Duncan McMillan is always in court from 9am to 5pm, Monday through Friday.  Appointments are usually set Monday through Thursday from 5pm to 6:30pm (EST).  Just call this office at 919-821-5124, and set the appointment with the firm staff.  If for some reason, you make an appointment and find out you cannot make it, please be kind enough to call this office and cancel your appointment and re-schedule if necessary.

Q: How much is the initial consultation?

A: There is no fee for an initial consultation.

Q: I was charged with a minor traffic citation, do I need to make an appointment for that?

A: Not necessarily.  You can simply fill out an information form and answer correctly the questions asked.  Follow up by sending a legible copy of your citation(s) by fax (919-821-5129), or via e-mail to johanna1@mspraleigh.com.  Based on this information, someone in this office will call you to let you know the next step, as far as fees, fines, and possible dispositions.

If for some reason you cannot send this information via e-mail, just print the information form, fill it out, and fax it with your citation, and someone will get back to you.

If fax or e-mail fails, call this office, and someone will gladly take your information down.

Q: The police never read my rights.  Can I get my case dismissed?

A: No.  The Miranda rights only assure that the government cannot use your answers to a custodial interrogation against you unless you were first advised of your rights.  You do not have a right to be advised of your rights.  You have a right to exclude from evidence an in custody statement you made, if you were not first informed of your rights.  If the police did not interrogate you after you were taken into custody, your rights have not been violated.

Q: If the arresting officer does not show up, will my case be dismissed?

A: Not necessarily. The judges in Wake County will allow some leeway to the State in continuing cases, just as they will allow some leeway to defendants. If an officer repeatedly fails to come to court, or if an officer fails to appear after the case has passed the 120 day age limit, the judge might very well deny the State’s motion to continue, in which event the District Attorney would dismiss the case.  You should be aware, however, that there is a two year statute of limitations on misdemeanor charges, and a DWI charge could be re-filed and served after such a dismissal.

Q: What should I wear to court?

A: Dress neatly, but not in a suit and tie, unless that is your normal, everyday attire.

Q: Do I need to be in court?

A: For minor traffic violations, a personal appearance is not generally required.  They are regularly handled in absentia.  If you are charged with a felony, your appearance is mandatory at every court setting.  Your appearance is also required for DWI cases, assault cases, and other serious misdemeanors unless specific arrangements to the contrary are made.  You can also check online with the Administrative Office of the Courts.

Q: WHY do I need to be in court?

A: The court is not asking you to come to court.  It is a command of the sovereign State of North Carolina.  Failing to appear in court as ordered is a separate and distinct criminal offense, in and of itself.

Q: What courtroom do I go to?

A: You can check online with the Administrative Office of the Courts (AOC). The courtroom assignment is usually posted two days prior to the court date.  If the AOC calendar shows WCCH, the case has not yet been assigned to a courtroom.  If you cannot determine to which courtroom your case is assigned, call the clerk at 755-4110, or go to Room 102 of the Wake County Courthouse and ask one of the clerks to advise you.  Our office staff can usually advise you of the courtroom on the day before court if necessary. 

Q: What happened with my case yesterday?

A: There is no need to call the day after your court date to ask the result.  We send out notices promptly advising our clients of the disposition of the cases and new court dates.  If you have not heard from us within a week of your last court date, call to check.  Remember that you need to keep us advised of any change of address or change in your phone number.

Q: Why was my case continued?

A: There are many possible reasons.  There might have been an unfavorable judge presiding.  The prosecutor may have been a jerk. The court docket may have been too crowded to dispose of all the cases.  Your attorney may have been involved in the trial of another matter. You may not have finished paying your lawyer, or you may not have forwarded funds in trust for payment of court costs and fines.

Q: How many times can my case be continued?

A: There is no hard and fast rule regarding the number of continuances.  In Wake County District Court, the “policy” dictates that DWIs and criminal traffic violations should be resolved within 120 days of the first court date.  There are many times, (and as many reasons) that cases are postponed much longer than 120 days.  The same policy suggests a 60 day disposition time frame for minor infractions, and the same exceptions apply.

Q: My case has been continued one or more times. Is my case going to be tried the next court date?  What should I expect to happen?

A: It is almost impossible to tell whether a particular case will be resolved on a specific court date.  Unfortunately, the courts do not operate on a schedule designed the convenience of the litigants.  Such is the cost of preserving our freedom, as well as enhancing your chance for a successful resolution.

Q: For my case, how much attorneys’ fee do I need to pay, and, does it include the court costs and fines?

A: Fees are only set by the attorney.  None of the staff of McMillan & Smith will be able to give you this information unless the attorney has already set the fee in your case.  Attorney’s fees do not include court costs and fines.  You will be responsible for paying any and all court costs and fines incurred in your case, unless you send those moneys to our office with your fees.  In this case, those funds will be deposited in our trust account until the case is disposed of in court.

Q: I made an appointment with Duncan A. McMillan, what do I need to bring for the appointment?

A: It is important to bring your citation and any and all paperwork related to the charges you are facing.  Also, any written account of what happened in that incident, to the best of your recollection will be helpful.  If you are charged with any traffic related matter, it would be a good idea for you to obtain a certified driving record from DMV, and bring it to your appointment.  It will help the attorney to determine what the best option is in court regarding your case.

Q: What is a PJC, and what kind of charges can I use a PJC for?

A: A PJC is a “Prayer for Judgment Continued”.  For some purposes it is considered NOT to be a conviction.  A first “PJC” for a single household qualifies for an insurance enhancement waiver in traffic cases. [N.C.G.S 58-36-75(f)]  A “PJC” is not an entitlement, it is a disposition allowed by the grace of the Court, in some situations.  The North Carolina law prohibits the entry of a “PJC” in DWI cases.  Technically, a “PJC” is a judicial adjudication of guilt, pursuant to which a final judgment is withheld.  It does, however, remain on the record. (See Roger Smith’s Essay)

Q: Is an Improper Equipment (IE) reduction an alternative reduction for my speeding ticket?

A: Unfortunately, the Wake County District Attorney’s office does not authorize the amendment of traffic violations to a non moving improper equipment violation. Many other local jurisdictions offer IE as an alternative, but you can not expect such a favorable result in Wake County.

Q: I got a letter from your office asking me to be in court. Do I really need to be in court?

A: YES. Or you need to execute a written waiver of appearance, and make certain we have court costs and fines in trust before the court date.

Q: Can my record be expunged?

A: Generally speaking, a person may not expunge the records of a criminal conviction.  A conviction remains on the records of the individual forever.  It is only in those cases which are specifically enumerated in the statutes that an expunction is permitted under North Carolina law. 

Criminal records may be expunged only in limited circumstances.  A person who is under the age of 18 and is convicted of a misdemeanor (other than a traffic violation) may have the record of his conviction expunged by following the procedure set out in NCGS 15A-145.

Likewise, a person who is 18, 19, or 20 years old who is convicted of misdemeanor possession of alcohol may file a petition for an expungement if he/she meets the criteria set out in NCGS 15A-145.  The petition for an expunction of records of a conviction under these circumstances requires the petitioner to provide an affidavit that he has been of  good behavior for two years following the date of conviction, and has not been convicted of any other criminal offense other than a traffic violation since the original conviction.  The petition must also provide affidavits from two other persons as to the petitioner’s character, as well as affidavits from the Clerk of Superior Court, Chief of Police, and Sheriff of the county in which the petitioner was convicted and any county in which he has resided since the date of conviction verifying that the petitioner has not had any criminal conviction since the date of the conviction sought to be expunged.

Criminal records may also be expunged if an individual is found not guilty or if the charges against him are dismissed. NCGS 15A-146 provides the statutory authority for such an expungement.  NCGS 15A-147 authorizes the expunction of records where charges are dismissed or there is a finding of not guilty as a result of  identity fraud or theft.

There are several provisions in the North Carolina Controlled Substances Act that authorize expunction of records in certain cases involving drug violations.  NCGS 90-96 provides a mechanism for a deferred prosecution in certain misdemeanor and felony drug cases.  Whether or not an individual is eligible to participate in such a program depends on the prior record of the individual, the particular drug offense involved, and the discretion of the presiding Judge.

In Wake County North Carolina there is a separate felony drug diversion program which is authorized by the District Attorney’s office in certain cases.

If an individual qualifies for and successfully completes a deferred prosecution program authorized under NCGS 90-96, upon his discharge from the deferred prosecution, he may apply for an expunction of his records.

In addition, NCGS 90-113.14 describes certain other drug violations which are subject to deferred prosecution.  NCGS 90-113.14 provides a mechanism by which individuals who are discharged and whose cases are dismissed pursuant to that section may apply for an expunction if they were under the age of 21 at the time of the offense.