By Elspeth Crawford
The intentional torts of assault and battery are often grouped together as if they are one single cause of action. While it’s true that the two frequently appear beside one another, they are two entirely different torts with their own discrete set of requirements.
An assault occurs when a defendant gives a plaintiff the impression that they are going to harm him, but for an assault to be actionable the defendant need not actually harm the plaintiff. Assault has two requirements. First, the person committing the assault must act with the intention to cause a harmful or offensive contact with the person of the plaintiff or a third party. Second, the person committing the assault must act in such a way that the plaintiff has the imminent apprehension of contact.
A battery occurs when a defendant intends to cause a harmful or offensive contact with a plaintiff or a third person and actually does cause such a contact. Basically, if you are touched in way that is considered harmful or offensive, the person who touched you has committed a battery.
Consent is a defense to battery. Plaintiffs who consent to batteries before they happened have little chance of prevailing in court. In addition to freely given consent, the law assumes that people consent to ordinary and customary batteries that occur commonly throughout everyday life. For example, a plaintiff who sues a defendant for battery after the defendant bumps into him in a crowded subway car would likely not win the case because the court will hold that the plaintiff gave implied consent for the battery to occur.
While assault and battery are separate causes of action, they very often occur together. If plaintiff perceives that a defendant has raised his fist to strike him, and then the defendant actually does strike him, the defendant has committed both an assault and a battery. If you have been the victim of an assault, a battery, or both, you can bring one or more causes of action to recover.
If you’ve received a citation, or were arrested and charged with a misdemeanor, you may wonder what options you have and what your journey will be like moving forward. A misdemeanor is one of three types of offenses, and carries a penalty more serious than an infraction, but less serious than a felony. The summons or citation will state what the charges against you are, and the scheduled day and time of your initial court appearance.
If you know that you would like to contact a lawyer concerning your charges, you probably want to do so before your initial court hearing (also known as an arraignment). By doing so, your lawyer can guide you on your plea and possible penalties before you are before the judge. If you wish to represent yourself, you will need to familiarize yourself with the law and proceedings surrounding the offense with which you’ve been charged. If you wish to be represented by a lawyer but cannot afford one, you will be given the opportunity to apply for a court-appointed lawyer at your initial hearing.
If you fail to present yourself at your arraignment, you may be charged with an additional offense known as failure to appear. This is a misdemeanor, and if committed, a court will likely issue a warrant for your arrest.
On the day of the arraignment, you should arrive to the courthouse at least 15 minutes early and dress conservatively and professionally. You are often required to check in at the clerk’s office. Before your hearing, you are given a legal rights form which explains your rights before your case is called by the judge.
Once your case is called, the judge will tell you what the charges are against you and the possible penalties from those offenses. Then the judge will ask if you need court-appointed legal representation, which are only available is jail time is a possible penalty. If you do want a court-appointed lawyer, you will have to fill out a form and answer questions about your finances to make sure you qualify.
Next in the hearing, the judge will ask you if you plead guilty or not guilty. If you do not know which to plead, ask the judge to reschedule your initial appearance so you can talk to a lawyer. If you plead not guilty, it will allow you time to talk to a lawyer before your next appearance and requires the prosecution to prove its case. If you plead guilty, you admit that you committed the charges against you, you give up your right to trial, and you give up your right to remain silent. The judge will then decide your sentence.
If you pled not guilty, you have the right to a bench or jury trial. If you choose a bench trial you will only be before a judge and he or she will decide if you are guilty. These typically can take place in an hour or so. In a jury trial, the decision of guilty or not guilty is determined by six members of the community and could last a couple of days.
Before any trial, a pretrial conference takes place. Either you or your attorney will receive a notice of the date and time. You must attend the pretrial conference, and also have the opportunity to discuss plea bargaining with the prosecution. Any other issues that need to be resolved are done so at this conference.
After either a bench trial or jury trial, the judge will decide the sentence. Sometimes the judge will do so the same day as the trial, but sometimes sentencing may be scheduled for a different day. The judge will ask if there is anything you have to say before he or she decides your penalty. For misdemeanors, penalties include jail (usually only up to one year), driver’s license suspension, fines, court costs, community service, probation, and restitution, which is money paid to the victim to cover costs they incurred. Typically the penalty is effective immediately at the time of sentencing.
If you can't appear at the scheduled time, contact your attorney or the court as soon as possible. If the court is contacted ahead of time and if you have a good reason, the court may reschedule your case. The court requires compelling reasons before it excuses a failure to appear.
Take a look at the December 2014 issue of Huntersville Magazine featuring Adkins Law PLLC.
Adkins Law PLLC is located in Huntersville, North Carolina and primarily serves Mecklenburg County and the Lake Norman area.
If you need to speak with a divorce attorney, traffic attorney, or estate planning attorney, contact Adkins Law PLLC.
The concept of confirmation bias occurs when a bias unconsciously influences the outcome of a test or observation. Instead of conducting a test objectively, someone is selectively looking for information or clues to confirm their pre-existing beliefs and hypotheses.
Why is confirmation bias important in DWIs? Confirmation bias can play a large factor in a DWI arrest. Police officers are graded on their productivity. This is what drives most police officers to take more enforcement action. Knowing they have to be productive to meet their unspoken quotas, officers are often proactive in their enforcement activities.
Consider a police officer that gets behind a vehicle, runs the tag, and discovers the driver has had previous DWI convictions. Based on the driver’s record, the officer may assume the driver to be intoxicated. The police officer will look harder for a reason to justify a traffic stop. If the officer is able to initiate the traffic stop, that officer will immediately begin to look for signs of impairment, which may or may not be there.
In a situation such as this, typically, the officer will request the driver to submit to a roadside breath test. This is usually conducted before any standardized field sobriety tests (SFSTs) are conducted. The reason for this is because the officer knows it isn’t worth his time to conduct SFSTs if the driver doesn’t blow above a 0.08 during the roadside breath test. Often, an officer won’t initiate SFSTs unless the driver is above a 0.10 roadside. The officer knows that once they place the subject under arrest and transport them for their evidentiary breath test, their BAC may drop. The average person’s BAC drops between 0.015 to 0.018 per hour.
Although this technique, which is very commonly used, is not recommended by NHTSA, it is extremely effective. The officer will both save time and quickly determine whether the traffic stop will yield a DWI arrest. The problem is that a preliminary roadside breath test creates confirmation bias during the SFSTs. If the driver blows over a 0.08 during the preliminary breath test, the officer will look hard while conducting the SFSTs to find the clues he needs for arrest. Not only is this not good practice, the entire SFST battery will be jaded. The officer will not be conducting the tests objectively, but will be looking a reason to justify the arrest, whether one truly exists or not.
Often, if confirmation bias can be established, the probable cause for the arrest may be negated. If the probable cause for the arrest is negated, the DWI charge may be dismissed. If you have more questions concerning confirmation bias in a DWI arrest, contact a DWI lawyer.
Adkins Law is located in Huntersville NC and primarily serves Mecklenburg County and the Lake Norman area. If you need to speak with a DWI attorney in Huntersville NC, contact Adkins Law to schedule an appointment with a DWI lawyer.
Did you receive a citation to appear in Mecklenburg County Courtroom 1130? Courtroom 1130, also referred to as first appearance court, is an administrative criminal court that handles misdemeanor and traffic cases. There are no trials held in this courtroom. Instead, this is where many cases are handled before they are required to go to district court.
To handle the high volume of misdemeanor and traffic cases in Mecklenburg County, the state attempts to do the following in courtroom 1130:
1. Reduce traffic tickets at the discretion of an assistant district attorney
2. Accept pleas of guilty
3. Set trial dates when the defendant pleads not guilty
4. Advises defendants of their rights to a court appoint attorney
5. Provides defendants with options for enrollment in diversion programs such as defensive driving school, drug education school, deferred prosecution, worthless check program, and the dispute settlement program.
If you have received a citation and are required to appear in courtroom 1130, it is highly advisable that you seek the assistance of a criminal defense attorney. If you would like to schedule a free consultation with a criminal defense attorney, please contact Adkins Law. Adkins Law is located in Huntersville and primarily serves Mecklenburg County and the greater Charlotte area.
Over the last several years, possession of marijuana has become decriminalized in North Carolina. Many police officers in Charlotte, Huntersville, Cornelius, Davidson, and the Lake Norman area have been advised to issue citations for possession of marijuana as opposed to making an arrest. Either way, if you are charged with misdemeanor possession of marijuana, it may have a serious impact on your life. While you may not be facing time in jail, you may lose your job or be expelled from school.
If you have been charged with possession of marijuana in Mecklenburg County, it is highly recommended that you hire a criminal attorney to provide you with legal advice and represent you in court. Often times, especially for first time offenders, a criminal defense attorney is able to negotiate your charge and obtain a dismissal in exchange for you completing a drug education class.
After your matter has been resolved, and depending on the outcome of your charge, a criminal lawyer is able to process an expunction for you. An expunction removes all record of the charge from your criminal records. Potential employers and schools won’t have to find out about your marijuana charge.
If you have been charged with possession of marijuana in Huntersville NC, or the Charlotte NC area, contact Adkins Law for a free consultation. If we are unable to provide you with the legal advice that you need, we will find you the best criminal lawyer possible and put you in touch with them.
Adkins Law PLLC is located in Huntersville NC and primarily serves Huntersville, Cornelius, Davidson, Charlotte, Denver, Mecklenburg County, Iredell County, Gaston County, Cabarrus County, and the Lake Norman area. Attorney Christopher Adkins is a former Charlotte-Mecklenburg Police Department (CMPD) police officer who has made hundreds of arrests specifically involving possession of marijuana and has issued several hundred citations specifically for possession of marijuana. Attorney Christopher Adkins knows exactly how law enforcement officers build their cases against you and exactly how to best defend you.