Ask the Law Guy

My brother and another guy was driving around in Lyodminister Alberta, Canada when the cops pulled them over for routine check and the other guy threw 18 grams of cocaine in the back seat the cop seen it and arressted them and seized my brother's car. My brother is pleading guilty and appearantly so is the other guy. What can happen to my brother? Also what happens with his car? My brother as no criminal record and has never been caught with drugs before. Also I am not quite sure but I think the other guy is caught up with some kind of gang that the police have been trying to get for a while. My brother is in Alberta working so if he gets charged or has to serve jail time will he be allowed to come back to Newfoundland with his family?

Never go into criminal court without a lawyer. These are all questions that your brother needs to talk with a lawyer in Canada about. If he does not have a lawyer he needs to get one immediately.

I live In Kitty Hawk, North Carolina I am trying to find information regarding civil trespassing. The facts: Carolina Asphalt operates under a conditional use permit in the town of Kitty Hawk. One of the terms of its permit stipulates the operating hours must be no more than Monday through Saturday, from 6 AM to 6 PM. They routinely begin operations before 6 AM and continue after 6 PM. The neighbors surrounding the plant have reported many violations of operating in excess of their permitted hours. On a Wednesday night in April, the nearest neighbor noticed the plant was still operating at 7:20 PM, the security lights were on, and trucks were operating. She drove over to the plant to make sure the business was operating after hours. Mrs. Larson saw a man driving a truck on the premises, security lights were on, so she called the Kitty Hawk police from her cell phone. They put her on hold, and then informed her they could not come to the premises as they were too busy. Mrs. Larson then called the Mayor of Kitty Hawk and begged him to drive over to the plant immediately so he could witness the violation for himself. The Codes Enforcement Officer, Holly Basnight, could not be reached because it was after Town Hall Hours.

Mrs. Larson waited for Mayor Harris to arrive (about 5 minutes) and she remained in the parking lot of the adjacent business RPC Contracting. RPC also owns the asphalt plant. The entire compound is fenced, but the fence to the parking lot is never closed or locked. RPC leases space to more than 10 various businesses and the gate is kept open to allow free access to the large parking area for business patrons and the employees. Trespassing signs are posted on the inside of the fence, but they are not visible from the road or the parking lot. They can only be seen if the gates are closed. Mrs. Larson did not know signs were posted. As soon as the Mayor arrived, Mrs. Larson gave the truck driver’s license number to the Mayor, he talked to the driver and then everyone left. Mayor Harris forwarded the violation to the Town Attorney’s office. Four days later a Kitty Hawk Police Officer arrived at Mrs. Larson’s home on Sunday morning and presented Mrs. Larson with a civil trespassing violation filed by RPC Contracting and ordered her to appear at the Dare County Courthouse on May 20^th, 2004.

Mrs. Larson entered a business parking lot while the gates were open and business was being conducted. There were no visible signs prohibiting entry to the parking lot. Why would she be cited for trespassing? What are the laws in North Carolina regarding “trespassing on a business parking lot while the business is still operating? “ I have searched the web looking for civil trespassing statues, but have had little luck so far.

Could you please help us with this problem? Thank you very much.

It sounds like Ms. Larson was cited for second-degree trespass, a misdemeanor criminal offense. The statute on second-degree trespass is N.C. Gen. Stat. 14-159.13. Before someone can be convicted of second-degree trespass that state must prove these things beyond a reasonable doubt:

That a person entered an area (or remained there after being told to leave)
That the person was not authorized to be there
That the property belonged to someone else
That the person had been notified not to be there or that there was a notice reasonably likely to be seen by intruders posted prohibiting entry.

The state does not have to prove that the person actually saw the notice, just that "No Trespassing" signs were in places that potential intruders were likely to see. It sounds like your friend might be able to win by showing that the signs were "reasonably likely to be seen." If she does win, she could try to sue the company for malicious prosecution.

Even though the crime is a misdemeanor, your friend should hire an attorney to help her. Angela Norcross is a lawyer in Kitty Hawk who handles criminal cases. Her number is 252-261-7678.

My fiancee put her payroll check in her bank at lunch of Friday. At which time, she was told that because there was an over draft she would not be able to keep some of her funds out, that the entire check would have to go into the account. She did so, without a problem, until she was later told by the bank that they would not allow her to have access to the funds until Wednesday at midnight. The bank went ahead and removed the amount of the overdraft from what she deposited and then started returning checks that were written back to the people trying to cash them, telling them that my fiancee has no funds in her account. She now has three (at last check) overdraft charges that were taken from the inaccessable funds, these later overdrafts were done Monday before the bank closed. Can a bank legally do this?

Banks are generally entitled to hold local checks deposited until the second business day following the day of the deposit. For non-local checks the hold time is up to five business days. (For more on hold times, click here).

It sounds like that on the deposit day there was an overdraft so the bank was entitled to apply the funds deposited to checks presented to the bank. If she wrote new checks to people who got NSF checks returned, they are only entitled to the original payment, plus any applicalble returned check fees, not both the original check and replacement.

For checking customers the bank's main obligation is to pay drafts (checks) from the funds the customer has on deposit. If the customer writes a check for more than the amount on deposit, the bank can legally return the checks for insufficient funds.

If a person was charged with possession of a schedule II controlled substance (cocaine) and it was the first drug offense, what's the maximum sentence that charge carries? What would be mitigating factors in determining the sentence for that charge?

Possession of cocaine is a Class I felony in North Carolina. A person with no criminal record (not just no drug offenses) would be considered a Level I offender and could serve no more than 10 months. Initially that sentence would have to be suspended and the person would be placed on probation.

An example: Moe Kane is charged with possessing .5 grams of cocaine (a pretty small amount), he pleads guilty before an angry judge who is fed up with drug offenders. The judge wants to give Kane the max so the sentence is a 8 months minimum, 10 months maximum in jail. Since Kane has no record, the judge must suspend the sentence and put Kane on probation, usually for 3 years. If Kane breaks the terms of the probation, he will serve at least 8, but no more than 10 months in jail. Whether Kane gets released after 8 or serves the full 10 depends on time off for good behavior or other time credits the jail may offer.

The person would have to be a Level IV offender before the judge had the option to give an active sentence right off the bat.

A person with the worst possible record, Level VI, could serve up to 15 months for cocaine possession. Judges usually only advise defendants about the maximum possible penalty.

The aggravating and mitigating factors are set out in a statute, N.C. Gen. Stat. 15A-1340.16. Most of the time the factors are not that important in Class I offenses since the maximum sentences are relatively low. In my experience only those with pretty bad criminal records get sent straight to jail for possession of cocaine.

None of this advice means that someone charged with a crime should not have a lawyer. Any criminal charge, misdemeanor or felony has consequences beyond just the sentence. A decision on whether to plead guilty should never be made without consulting with an attorney.

I own a home and I am trying to sell it. However, I am unable to sell the house because the house is also in my deceased mom's name. It is not her house, I only put her name on the house in the first place in order to refinance it. Please tell me what to do.

Ouch. There is no such thing as simply titling a piece of property in while retaining true ownership. If two unmarried persons are listed as the owners of real estate, that will generally be considered a tenancy in common. That means each person owns an undivided one-half interest in the property. At your mother's death her one-half interest the property became part of her estate which will pass as her will directs or by the laws of intestate succession.

In short you seem to own 1/2 of a home with the other half owned by your mother's heirs. If you are the only heir, this might not be a problem.

The only way to attempt to undo what you have done would be to attempt to impose a "constructive trust." I will not try to explain how a constructive trust works because it is not something you could try on your own. Iit would require the hiring of a seasoned estates lawyer.

Never transfer ownership of property just to get better financing. These kind of "sham" transactions have the frightening potential to spring to life.


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