Ask the Law Guy

I have a lot of debt, I'm having trouble paying my bills and I wonder if I should file bankruptcy. How do I know if I've reached the point where bankrutpcy is right for me? I hate to wreck my credit.

Bankruptcy is a legal solution to a debt crisis. First look at what alternatives you have to bankruptcy. There are two types of debt secured debt (such as a mortgage or car payment) and unsecured debt (such as credit cards). Figure out your total amount of secured and unsecured debt. Make a monthly budget that includes mortgage (or rent), car payments, insurance, utilities, food and basic expenses. The amount of your monthly income left over after the budget is what you could devote to paying down your unsecured debt.

For example assume you have $10,000 in credit card debt. At 18% interest you could pay $254 per month and pay it off in five years. $362 per month would pay it off in 3 years. If it would be possible for you to pay off your unsecured debt in 3-6 years you should seriously consider doing that. Consider using a reputable low-cost credit counselling service. You can find a local one here. Avoid the online or TV-advertised operations.

After taking a look at your finances, if you decide it would be impossible to pay your unsecured debt you can discharge your debt through bankrutpcy. A Chapter 7 bankruptcy will discharge your unsecured debt, you must be current on your house and car payments in order to keep those. A Chapter 13 bankruptcy will allow you to catch-up delinquent house and car payment and pay part of your debts over time.

There is a lot of information about bankrutpcy on the internet. For more information, check out my website, www.attorneygates.com or try a Google search.

I have a felony conviction from 12 years ago. My civil rights have been restored. Can a legally purchase a firearm?

No. A federal law, 18 U.S.C. 922 makes it illegal for anyone with a felony conviction to purchase or possess a firearm. This includes rifles, shotguns and handguns. While N.C. law does not make it illegal for a felon to possess some types of firearms, a felon who possessed a firearm would still be committing a federal offense. Federal law bans possession, not just ownership, so if you have "dominion or control" over a firearm, you are violating the law.

It is also illegal to possess a firearm if you are subject to a domestic violence protective order, even if the order does not prohibit you from having a gun.

It is also illegal to possess a firearm if you have been convicted of a misdemeanor crime of domestic violence.

The penalties for violating the federal firearm law are severe and would ordinarily result in prison time.

I was convicted of a habitual DWI in a North Carolina court in January of 1997. This conviction has given me a life sentence even though I'm not in prison. I'm still confined and limited to where I can go. I have a hard time working. I have since changed my life and drinking is a thing of the past. I have moved from N.C. and reside in Maryland, but I cannot receive a license in any state.

The only chance to move forward in my life is a pardon from Governor Easley. What are the chances this can happen?

It would be highly unlikely that a governor would issue a pardon for a DWI, let along a habitual DWI. Habitual DWI results when a person who has three previous DWI’s within the last seven years gets convicted of DWI. There is a minimum 12-month sentence in prison upon conviction. The maximum sentence is 59 months.

It is a credit to you that you changed your life. With 4 DWI convictions within seven years you were a menace to society. After a third DWI conviction, the NC DMV permanently revokes a driving license. However, after 3 years a driver may apply for a conditional restoration of his drivers license. The applicant has to show that he is not an excessive user of alcohol or drugs and has no alcohol or drug convictions during the revocation period. If the license is restored, the DMV can put reasonable restrictions on the license for up to three years.

Most states have entered into a compact that provides that once one state has revoked a driving license, no compact state will issue a license as long as the revocation is in effect. Effectively as long as your right to drive is suspended in N.C. you will be unable to get a license in Maryland.

Since you now live in Maryland you should see if a Maryland attorney can help.

I have a driving while impaired conviction from 7 ½ years ago. Is there any way to get it erased from my driving record?

In North Carolina, any criminal conviction, such as DWI, stays on your criminal record forever. The only way to erase the conviction would be to get the conviction set aside by showing some problem with the charge (similar to using DNA evidence to get a conviction overturned). This would be practically impossible in most cases. A pardon from the governor would also erase the conviction. There are few limits on the governor’s pardon power.

Driving records maintained by the DMV usually only cover the last five to seven years. Insurance points that result from a traffic conviction, stay on your record for three years

Can the police search your car without your permission?

A police officer can search your car if he has probable cause. “Probable cause” means that based on specific facts a reasonable person would think that items subject to seizure are in the car. Contraband (such as drugs) and evidence of a crime are examples of items that are subject to seizure. Unlike with a home, the officer does not have to get a warrant before searching your car if there is probable cause to search. For example, an officer pulls over a car and can smell marijuana -- that gives the officer probable cause to search the car. If the officer lacks probable cause, your car can only be searched with your permission. If the officer searched a vehicle and the court found that there was no probable cause, the evidence that was turned up during the search can be excluded.

An officer can search a vehicle incident to arrest. That means that if the officer has the right to arrest a person in a car, the officer has the right to search the car, even if there is no probable cause.

What does the Supreme Court’s opinion on racial preferences in university admissions mean?

The Supreme Court in Grutter v. Bollinger ruled that race or ethnicity may be used as a “plus” factor in admissions. It was, not surprisingly, a 5-4 decision.

In Grutter, an applicant to the University of Michigan Law School sued arguing that the school’s admission policy was unfair because similarly qualified minority students were admitted while she was not. The school argued that it wanted a diverse student body and that considering race or ethnicity as a positive factor allowed the school to admit more minority students. There is no question that this admission plan gave a significant edge to minority applicants, an expert for the law school testified that under a race-blind admissions policy the percentage of minorities in the class would drop from 14.5% to 4%.

The school’s admissions process looked at GPA, LSAT scores, quality of the essay and letters of recommendation. The school got about 3,500 applications for the 350 spaces in its class.

The 5-justice majority (O’Connor, Stevens, Souter, Ginsburg and Breyer) ruled that a diverse student body was a “compelling state interest” and therefore the school could consider race in deciding whether to admit a particular student. Racial quota or set-asides for minority students are banned. The court also noted that racial preferences cannot continue forever, but set no deadline for the phase out.

The Supreme Court has traditionally been reluctant to allow race to play any role in government decisions. In earlier cases the court has often said that either diversity was not a compelling state interest or that there were better ways of achieving that interest without preferences.

Click here to read the opinion for yourself

I got married and then separated after a week. The marriage was never consummated. Can I get the marriage annulled in North Carolina?

Probably not. Henry VIII had several marriages annulled, but North Carolina residents have a more difficult time.

An annulment is a legal recognition that a valid marriage never exisited. It requires proof that one of the spouses was incapable of marrying at the time of the marriage. The grounds for an annulment in N.C. are:

The spouses were kin nearer than first cousins
One of the spouses was under the legal age
One of the spouses was still legally married at the time of the marriage
Impotence (the inability to have sex must have existed at the time of the marriage)
Mental incompetence
Duress (a shotgun wedding)

If you think one of these grounds might apply, contact a lawyer. The only ground for divorce in North Carolina is separation for one year. It will generally be easier to end a marriage by divorce than by annulment.


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