Frequently Asked Questions

This is general information based upon North Carolina law. The outcome of any particular case will depend upon the specific evidence available in that case. You should always consult an experienced and knowledgeable North Carolina attorney if you have specific questions or if you require legal advice or representation.

  1. Civil Litigation Matters
  2. Personal Injury Matters
  3. Traffic and Motor Vehicle Matters
  4. D.W.I. Matters
  5. Family Law Matters
  6. Business and Corporate Law Matters


Civil Litigation Matters

How is a civil case commenced in the state of North Carolina?

Generally, a civil case is commenced in North Carolina by the filing of a Complaint with the Clerk of Superior Court in the county in which the action will be prosecuted. At the time the Complaint is filed, the Clerk of Superior Court will issue a Civil Summons which must be served upon the defendant(s) along with the Complaint.


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Should I ignore a Civil Summons and Complaint if I believe the claims are frivolous or if I do not believe service was proper?

No. You should never ignore any Civil Summons and Complaint served upon you. Even if you have reason to believe that the Complaint is frivolous or that it was not properly served, the court may enter a judgment against you if a written response is not filed with the court to contest the allegations in the Complaint. If you require assistance in responding to a lawsuit, The Virtual Law Firm may be able to offer guidance and support.


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What type of response to a Complaint must be filed with the court?

Generally, a defendant in a civil case must file a written Answer with the Clerk of Superior Court. Under certain circumstances, a defendant may file a written Motion with the Clerk of Superior Court to address procedural or substantive issues. If you require assistance in responding to a lawsuit, The Virtual Law Firm may be able to offer guidance and support.


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Can I contact a judge directly to inform the court that there is a problem with the case?

No. Except is very limited circumstances, a judge cannot discuss the merits of your case with you outside the presence of the opposing party or counsel. Generally, you may only address the court regarding the merits of your case if the opposing party or counsel has been served notice of the hearing and the matter has been placed on the court calendar for hearing. In most instances, the opposing party or counsel must receive at least five (5) days’ notice of the hearing. In some instances, you may be required to give the opposing party or counsel at least ten (10) days’ notice of the hearing.


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Can I write a letter to the court explaining my situation?

A letter written to the court and served upon the other parties may be deemed an Answer. However, an Answer to a Complaint is not an explanation of your circumstances. An Answer to a Complaint generally serves the following purposes: (1) to admit or deny the specifically enumerated allegations of the Complaint or to indicate that there is insufficient information or belief to admit or deny the specifically enumerated allegations and therefore to deny the same; (2) to raise appropriate motions to address technicalities, i.e., problems with service of process, jurisdiction, venue, and proper division of the court; (3) to assert any counterclaims against the plaintiff(s) or cross-claims against other defendant(s); and/or (4) to join other necessary parties to the lawsuit. Certain issues not raised in the Answer or by Motion within the time allowed by law may be waived.


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Is it possible for a defendant to obtain additional time from the court to file an Answer to the Complaint?

Yes. A defendant may file a Motion for Extension of Time with the Clerk of Superior Court to seek additional time to respond to the lawsuit. Unless the Civil Summons states otherwise, a defendant must file a response and assert certain defenses within thirty (30) days of service of the Civil Summons and Complaint. For good cause shown, the Clerk of Superior Court may extend the time prior to the deadline for a response for a period equal to the time allowed by law to file the initial response. Some defenses may be waived if not raised within thirty (30) days, even if you obtain an extension of time to file a response. For a nominal fee, The Virtual Law Firm can assist you in seeking an extension of time to respond to a lawsuit.


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Can I represent myself in court?

Yes. You have a right to represent yourself in court. However, it is always advisable to consult legal counsel to determine whether it is prudent to represent yourself in any civil or criminal proceeding. For a nominal fee, The Virtual Law Firm can assist you in determining whether you may be able to effectively represent yourself in a civil or criminal proceeding.


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Can I represent another person in court?

No. Only an attorney can appear on behalf of another person in court. This prohibition also bars a parent or legal guardian from representing a minor child in court and further bars a person with a power of attorney from representing another individual.


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Can I represent a corporation in court?

No. A corporation is treated as a person for legal purposes. Only an attorney can appear on behalf of another person in court. Accordingly, only an attorney can represent a corporation in court. Therefore, an Answer or other paper filed by an unrepresented litigant on behalf of a corporation may be stricken from the record.


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Personal Injury Matters

What should I do if I have been injured in an automobile accident?

If you have been injured as a result of another person’s negligence or carelessness, you may be entitled to compensation from that person and/or that person's insurance company. Because the process is oftentimes complicated, you should consult with an experienced personal injury attorney to assist you. However, it may not be necessary to engage an attorney for full service legal representation.

You should immediately gather information concerning your accident and injury, including but not limited to: (1) photographs of vehicles involved and the scene of the accident; (2) a copy of your vehicle's repair estimate; (3) a copy of the accident report; (4) information about the person who caused the accident and his/her insurance company; (5) your medical treatment records; (6) your medical billing statements; and (7) work release or light duty orders from your health care providers. You should retain any other information you believe will assist your attorney in evaluating and/or prosecuting your case.


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What should I do if the insurance adjuster asks me to give a recorded statement concerning the automobile accident?

An accident victim is under no legal obligation to give any statement to the responsible person’s insurance company. Insurance companies often seek to obtain recorded statements from accident victims before they know the nature and extent of their injuries. Sometimes, the accident victim’s pain is being controlled by medication. You should not give any statement until you understand the process and you are able to give full and detailed explanations or statements concerning the accident and your injuries. Insurance adjusters are trained to obtain statements that will damage your case. Insurance companies use your premature statements to devalue your case. You should never give a statement to the responsible person’s insurance company without first discussing your case with an experienced personal injury attorney. If you elect to represent yourself, you may still obtain assistance from The Virtual Law Firm in preparing to give your statement.


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Who is responsible for paying for my medical treatment resulting from the automobile accident?

You are always responsible for the payment of your medical bills. However, you may be entitled to recover the amount of your medical bills and other compensation if your injuries resulted from the negligence of another person. You should not expect the responsible person’s insurance company to pay your medical bills as you incur them. Usually, the insurance company will not make a settlement offer until you have completed all of your medical treatment. Further, it may be advisable for you not to make a settlement offer until you have reached maximum medical improvement. Therefore, you should always file claims with your health insurance provider, including Medicaid/Medicare, to ensure that most of your bills are paid on time to avoid derogatory credit reports. If you do not have health insurance or Medicaid/Medicare, you should arrange a payment plan with your health care providers until your settlement is final in order to preserve your credit rating. Even if someone else is at fault for the accident, your credit will be affected by a failure to pay your bills.


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If my health insurance provider pays my medical bills, will I have to reimburse my health insurance provider?

Some health insurance providers, such as Medicaid, Medicare, Champus, self-funded ERISA plans, and worker's compensation, are entitled to at least partial reimbursement from your settlement. However, the amount of the reimbursement is oftentimes less than the amount of the original bill. Therefore, it may benefit you to immediately submit all claims for coverage by your health insurance provider.


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What types of damages may I recover as a result of an automobile accident?

If you are injured as a result of someone else’s negligence, an experienced personal injury attorney can assist you in making sure that you recover fair compensation for all of your injuries. You may be entitled to any or all of the following types of compensation:

Property Damage
Rental Car
Medical Bills
Future Medical Bills
Lost Wages or Other Income
Lost Vacation or Sick-Leave Time
Loss of Future Earnings
Loss of Future Earning Capacity
Permanent Scars
Loss of the use of a body part
Physical Pain and Suffering
Mental Anguish
Future Pain and Suffering
Permanent Disability
Mileage for Medical Treatment
Prescriptions
Funeral Bills
Burial Expenses

Under some circumstances, the spouse of an accident victim may be permitted to recover for loss of consortium or loss of services as a result of the injured spouse’s inability to perform after the accident as he/she performed prior to the accident.


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How do I determine whether a settlement offer from an insurance company is fair and reasonable?

There is no magic formula to determine whether an insurance company’s offer is fair and reasonable compensation for your damages. As insurance companies are in business to make money, they are also in the business of saving as much money as possible on each and every claim. At the appropriate time, an experienced personal injury attorney can assess your case and estimate the value thereof. Such an assessment depends upon the circumstances of your particular case and the compensation allowed by law. Even if your injuries are not catastrophic, you may benefit from having an experienced personal injury attorney assess your damages. With The Virtual Law Firm, you may also benefit from having an attorney prepare correspondence and other materials for a nominal fee. If you are unable to settle the case outside of court, The Virtual Law Firm may be able to assist you in filing a lawsuit in the proper court to recover all of your legal damages. In some instances, limited scope legal representation may not suffice. In these cases, you may retain The Lane Law Firm, PLLC and receive a credit for any attorney fees for services rendered by The Virtual Law Firm.


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What is the difference in the attorney fees for full service legal representation and limited scope legal representation in personal injury cases?

Most personal injury attorneys work on a contingent fee basis in full service legal representation. Under this fee arrangement, you pay the attorney a percentage of your recovery after you collect from the responsible party or his/her attorney. In most instances, you do not owe attorney fees if you do not recover compensation for your injuries. Notwithstanding, you remain responsible for the out-of-pocket expenses necessary to process or litigate your claim regardless of whether you recover money for your injuries.

The Virtual Law Firm offers limited scope legal representation. Under this arrangement, you continue to represent yourself. Therefore, you do not share your recovery with the attorney. Instead, you pay nominal fees in advance throughout your case as you request services. For example, you can pay separate nominal fees for (1) evaluation of the merits of your case; (2) assessment of your damages; (3) document preparation, including drafting correspondence for your signature or for an attorney’s signature; and, (4) under some circumstances, for negotiations of your claims. As you determine the amount of assistance you require, you determine how much you wish to pay attorneys for assistance.


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If I am unable to settle my case under limited scope legal representation, what must I do to retain an attorney to engage in full service legal representation?

If at any time during the course of the limited scope legal representation you determine that full service legal representation will better suit your needs, you may opt to retain legal counsel of your choice. If you elect to retain The Lane Law Firm, PLLC, then you will receive a credit of all attorney fees previously paid to The Virtual Law Firm for limited scope legal representation. Further, The Lane Law Firm, PLLC may accept your case on a reduced attorney fee depending upon its level of involvement in the limited scope legal representation. Such retainer would be on a contingent fee basis to the extent that The Lane Law Firm, PLLC will be paid a percentage of your recovery after you collect from the responsible party or his/her attorney. However, you will receive a credit of amounts advanced under the limited scope legal representation only if there is a recovery in your case. In most instances, you will not owe any additional attorney fees to The Lane Law Firm, PLLC if you do not recover compensation for your injuries. Notwithstanding, you remain responsible for all out-of-pocket expenses necessary to process or litigate your claim regardless of whether you recover money for your injuries.


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How long do I have to file a lawsuit if I am unable to settle my case?

Under North Carolina law, you generally have three (3) years from the date of your injury resulting from the negligence or carelessness of another to file your lawsuit in court. If your loved one has died as a result of the negligence or carelessness of another, you generally have only two (2) years to file your lawsuit. If you fail to settle your claim or to file a lawsuit within the applicable time period, you will forever lose your right to file a claim or lawsuit. Of course, there may be some exceptions to this rule. If you elect to represent yourself, you may still obtain assistance from The Virtual Law Firm in preparing your case for settlement or litigation.


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Does North Carolina have mandatory insurance requirements for licensing a vehicle?

North Carolina law requires the registered owner of a motor vehicle to maintain continuous liability insurance coverage as long as there is a valid license plate for that vehicle.


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Are all insurance companies accepted in North Carolina?

Liability coverage must be continuously maintained with a company licensed and authorized to do business in this state.


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What are the minimum liability requirements for licensing?

The minimum requirements of liability for private passenger vehicles are $30,000 for bodily injury for one person; $60,000 bodily injury for two or more people; and $25,000 for property damage. North Carolina law requires each company to notify Division of Motor Vehicles upon the issuance of a new policy and when coverage has been cancelled.


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Is there a penalty for a lapse of liability insurance coverage?
• If you change insurance carriers or you have a lapse of coverage, your insurance company is required by law to notify the Division of Motor Vehicles. When the Division receives this information, they are required to send Form FS 5-7 Notice, and you are required to respond within 10 days.
• If there has not been a break in coverage, you must enter your correct insurance information on the Form FS 5-7 and return it to the Division within ten (10) days from the date on the FS 5-7 Notice.
• If there has been a break in coverage, you must re-certify with the correct insurance information and submit payment of Fifty Dollars ($50.00) within ten (10) days from the date of the letter in order to retain your license plate.
• Failure to respond within the required time can result in the loss of your license plate for thirty (30) days.
• In order to re-license the vehicle after thirty (30) days, you must provide (1) proof of insurance coverage Form FS-1 (which you can obtain from your insurance agent); (2) a restoration fee of Fifty Dollars ($50.00); (3) a service fee (if a plate pick up order is issued) of Fifty Dollars ($50.00); and (4) the appropriate license plate fee.


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What are the probable consequences of a conviction for Driving While Impaired (“D.W.I.”)?

D.W.I. is a misdemeanor that carries a maximum sentence of two (2) years in prison and a fine of Four Thousand Dollars ($4,000.00). Depending upon your driver’s record, there is also a mandatory suspension of license ranging from 1 year to permanent. In addition, your personal automobile insurance rates will probably increase at least 400% but may increase up to 800% for three (3) years following a D.W.I. conviction.

In order to be convicted of D.W.I., the State must prove the following:

1. You were the "driver" or "operator" of a vehicle that is in motion or has the engine running. A "vehicle" includes every device in, upon, or by which any person or property is or may be transported or drawn upon a highway, except for devices moved by human power or used exclusively upon fixed rails or tracks. "Vehicle" does not include horses, bicycles, and lawnmowers or electric personal assistive mobility devices or devices used for mobility enhancement; and
2. You were driving or operating the “vehicle” on any "highway, street or public vehicular area.” A "public vehicular area" includes any area open to and used by the public for vehicular traffic.
3. "Impairment" means either a) "under the influence" of an "impairing substance," or b) having consumed sufficient alcohol to have, at any relevant time after driving, an alcohol concentration of .08 or more. An "impairing substance" can be alcohol, illegal drugs, cough syrup, and/or prescription medications. A person is "under the influence" if his/her physical and/or mental faculties are appreciably impaired.

Chemical analysis of blood-alcohol levels, by either breath tests or blood tests, measure the concentration of alcohol in the blood. Such chemical analysis must be performed in accordance with specific state laws and regulations. A driver's refusal to take a valid breath or blood test will usually result in a 1-year license revocation with no limited driving privilege.

Generally, your driver’s license will be suspended for thirty (30) days if you are lawfully arrested for D.W.I. and any of the following circumstances exists:

1. You refused to take a breath or blood test; or
2. Your alcohol concentration was over.08 (or .04 if you were driving a commercial vehicle); or
3. You were under age 21 and had any alcohol in your system while driving.

After the first ten (10) days of the suspension, it may be possible for you to obtain a limited driving privilege that would allow you to drive for the limited purposes of working, school, or maintaining your household. There are many factors that may affect your eligibility for a limited driving privilege. You should consult an experienced traffic attorney if you are interested in obtaining this privilege.

After thirty (30) days, the Clerk of Superior Court may return your driver’s license upon payment of a reinstatement fee of Fifty Dollars ($50.00). In many instances, you may then drive without any restrictions until your case is resolved in court. The future status of your license will depend upon the outcome of your case.


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Should a license plate be surrendered when insurance has been discontinued?

A license plate must be surrendered whenever insurance has been cancelled for any reason.


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If I feel the cancellation of insurance is unjustified, do I have any recourse?

An insurance hearing may be requested when you feel the lapse in coverage is not reasonably attributed to fault or neglect on your part.


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Can my license plate be transferred from one vehicle to another?

The license plate may be transferred to a different vehicle if the insurance was secured on the new vehicle at the same time the insurance was cancelled on the old vehicle; however, there may not be a break between the coverage on the vehicles.


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How do I title & register a vehicle?

In the case of new residents, you must register your motor vehicle at the expiration of the time granted by reciprocity agreement between North Carolina and your prior state of residence (usually 30 days) or when gainful employment is accepted, whichever occurs first. For more information, click here.


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What can a ticket do to my North Carolina insurance?

The North Carolina General Assembly enacted legislation known as the Safe Drivers Incentive Program that rewards safe drivers with the lower insurance costs. On the other hand, insurance companies penalize drivers who are convicted of moving traffic violations or who have caused accidents by charging higher insurance premiums based on a points system. These points are assessed for convictions and at-fault accidents occurring within three (3) years of the date of application for the insurance issuance or renewal. The points for each moving violation are as follows:

12 Points:
Manslaughter or negligent homicide involving a motor vehicle
Prearranged highway racing or lending a car for such
Hit-and-Run with bodily injury or death
Driving Under the Influence
Driving with a blood alcohol level of .08% or greater
Driving a commercial vehicle with a blood alcohol level of .04% or greater
Driving While Impaired
Transporting illegal intoxicating liquor for sale.

10 Points:
Highway racing or lending a car for such (not prearranged)
Speeding to elude arrest.

8 Points:
Driving during revocation or suspension of license or registration.

4 Points:
Reckless driving
Hit-and-Run, with property damage only
Passing a stopped school bus displaying its stop sign and signals
Speeding in excess of 75 mph
Speeding in excess of 80 mph in a 70 mph zone
Driving after consuming alcohol if the driver is under 21 years of age.

2 Points:
Illegal passing
Speeding in excess of 55 mph but less than 76 mph
Driving on wrong side of road
At-Fault accident resulting in property damage in excess of $1,500, but less than $2,500.

1 Point:
All other moving violations or at-fault accidents resulting in property damage of $1500 or less and bodily injury of $500 or less.

EXCEPTIONS: No points will be charged for: Speeding 10 mph or less over the posted speed limit provided that (1) the violation did not occur in a school zone; and (2) there is a clean driving record for the previous three (3) years. However, a second moving violation within the three (3) year period will result in an assessment of points for BOTH violations. Additionally, each household can use one (1) prayer for judgment continued (“PJC”) every three (3) years as long as no one else in the household has used a PJC during that time. If multiple violations occur, only the violation with the higher point value is assessed. Lastly, points exceptions exist for certain at-fault accidents involving contact with animals or fowl, flying gravel, or falling objects.

The following chart demonstrates the financial impact of a conviction on North Carolina insurance premiums if your insurance premium was $300.00 before a traffic conviction.

SDIP Points Percentage Rate Increase New Cost if Basic Rate was $300 before the citation
1 25% $375
2 45% $435
3 65% $495
4 90% $570
5 120% $660
6 150% $750
7 180% $840
8 220% $960
9 260% $1080
10 300% $1200
11 350% $1350
12 400% $1500

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D.W.I. Matters

If I need additional time to retain legal counsel, how do I request "continuance"?

A continuance is the moving of a court date to a later date. The prosecution or the defense may request a continuance for any of several reasons. Work conflicts, school schedules, health problems, vacations, and the need for more preparation time are all acceptable reasons for requesting a continuance.


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If my chemical analysis shows that my blood alcohol concentration was 0.08 or more, can I really benefit from hiring an attorney?

Yes. The State must prove every element of D.W.I. beyond a reasonable doubt before you can be convicted. If you believe the State can prove every element of the offense, you could still benefit from limited scope legal representation. An attorney can offer an opinion as to whether the officer followed all of the laws and rules during the arrest and testing processes and can protect your constitutional and statutory rights throughout the proceedings. Further, a limited scope legal representation will offer you an affordable opportunity to determine what benefits you may obtain, if any, from full service legal representation. For example, a limited scope legal representation will offer you an opportunity to explore whether the State can prove its case or whether the officers may have stopped you or arrested you without probable cause. If the alcohol-screening test is not performed in accordance with applicable statutes and regulations, the results may be inadmissible in court. If the officer did not have probable cause to stop you or to arrest you or if the officer did not inform you of your Miranda rights before asking you questions while you were in custody, the State could be barred from using your statements against you in court. It may be necessary to present testimony from an expert witness to explain why the breath or blood test results are inaccurate or invalid in your case.

In the context of D.W.I. cases, limited scope legal representation is an alternative to self-representation. It is not an alternative to full service legal representation. If it is determined that you cannot benefit from a limited scope legal representation, then your fees paid to The Virtual Law Firm will be credited towards a full service legal representation by The Lane Law Firm, PLLC. Under full service legal representation, an attorney will appear with you at court hearings and will work to avoid conviction or, if convicted, to reduce your punishment and seek a limited driving privilege for you if you are eligible. If you decline full service legal representation by The Lane Law Firm, PLLC, you will not be entitled to a refund of any fees paid to The Virtual Law Firm for services rendered.


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If I am convicted of D.W.I., will I go to jail?

Your punishment for a D.W.I. conviction will depend upon your prior record or other factors in your case.
If you have a prior D.W.I. conviction within seven (7) years of your arrest or prior to your conviction, you will be required to serve between one (1) week and two (2) years in jail. You will also be required to serve between one (1) week and two (2) years in jail if you have any other "grossly aggravating factors" present in your case. The judge presiding in court will determine your actual sentence.

Even in the absence of any "grossly aggravating factors" present in your case, you may still be required to serve up to seventy-two (72) hours in jail if the "aggravating factors" outweigh the "mitigating factors." In the Judge’s discretion, you may not be required to serve any active jail time in the absence of any "grossly aggravating factors" in your case.

GROSSLY AGGRAVATING FACTORS

1. A prior conviction for an offense involving impaired driving if:

a. The conviction occurred within seven (7) years of the date of the offense for which you are being sentenced; or
b. The conviction occurs after the date of the offense for which you are presently being sentenced, but prior to or contemporaneously with the present sentencing.

Each prior conviction is a separate grossly aggravating factor.

2. Driving by the defendant at the time of the offense while driver’s license was revoked for an impaired driving offense.
3. Serious injury to another person caused by your impaired driving at the time of the offense.
4. Driving by the defendant while a child under the age of 16 years was in the vehicle at the time of the offense.

AGGRAVATING FACTORS

1. Gross impairment of the defendant's faculties while driving or an alcohol concentration of 0.16 or more within a relevant time after the driving.
2. Especially reckless or dangerous driving.
3. Negligent driving that led to a reportable accident.
4. Driving by the defendant while driver’s license revoked for reasons other than impaired driving.
5. Two (2) or more prior convictions of a motor vehicle offense not involving impaired driving for which at least three (3) points are assigned under N.C.G.S. 20-16 or for which the convicted person's license is subject to revocation, if the convictions occurred within five (5) years of the date of the offense for which the defendant is being sentenced, or one (1) or more prior convictions of an offense involving impaired driving that occurred more than seven (7) years before the date of the offense for which the defendant is being sentenced.
6. Conviction under N.C.G.S. 20-141.5 of speeding by the defendant while fleeing or attempting to elude apprehension.
7. Conviction under N.C.G.S. 20-141 of speeding by the defendant by at least thirty (30) miles per hour over the legal limit.
8. Passing a stopped school bus in violation of N.C.G.S. 20-217.
9. Any other factor that aggravates the seriousness of the offense.

Except for the factor in paragraph 5, the conduct constituting the aggravating factor must occur during the same transaction or occurrence as the impaired driving offense.

MITIGATING FACTORS

1. Slight impairment of the defendant's faculties resulting solely from alcohol, and an alcohol concentration that did not exceed 0.09 at any relevant time after the driving.
2. Slight impairment of the defendant's faculties, resulting solely from alcohol, with no chemical analysis having been available to the defendant.
3. Driving at the time of the offense that was safe and lawful except for the impairment of the defendant's faculties.
4. A safe driving record, with the defendant's having no conviction for any motor vehicle offense for which at least four (4) points are assigned under N.C.G.S. 20-16 or for which the person's license is subject to revocation within five (5) years of the date of the offense for which the defendant is being sentenced.
5. Impairment of the defendant's faculties caused primarily by a lawfully prescribed drug for an existing medical condition, and the amount of the drug taken was within the prescribed dosage.
6. The defendant's voluntary submission to a mental health facility for assessment after he was charged with the impaired driving offense for which he is being sentenced, and, if recommended by the facility, his voluntary participation in the recommended treatment.
7. Any other factor that mitigates the seriousness of the offense.

Except for the factors in paragraphs 4, 6, and 7, the conduct constituting the mitigating factor must occur during the same transaction or occurrence as the impaired driving offense.


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Will I lose my driver’s license if I am convicted of D.W.I.?

Yes. Your driver’s license will be revoked for at least one (1) year. If you have been found guilty of committing another D.W.I. within the three (3) years prior to your current offense, the Division of Motor Vehicles will revoke your license for four (4) years. If you have previously been found guilty of committing two (2) or more prior D.W.I. convictions, and the most recent conviction occurred within the five (5) years of your current offense, the Division of Motor Vehicles will revoke your driver’s license permanently.


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Is it possible to get a limited driving privilege after a conviction for D.W.I. and revocation of license?

Maybe. If you have no D.W.I. convictions within the previous seven (7) years, you may be eligible for a limited driving privilege that would allow you to drive during limited hours for certain essential purposes, such as employment; education; maintenance of your household; court-ordered treatment or assessment; court-ordered community service; and emergency medical care. It is the judge's decision whether to grant you this limited driving privilege. There are numerous restrictions on a limited driving privilege, and the violation of any one of the restrictions could result in a conviction of Driving While License Revoked, which carries an additional revocation of one (1) year with no limited driving privilege. A limited driving privilege will not allow you to drive certain commercial vehicles for any purpose, including most tractor-trailers and buses.


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If my vehicle is impounded at the time of my arrest for D.W.I., how and when can I get it back?

If your driver's license was revoked at the time of the offense because of a prior "impaired driving revocation" and you are charged with a D.W.I., the vehicle you were driving at the time of your arrest may be impounded. If you are the sole owner of the vehicle, you may be unable to get the vehicle back unless you are found "Not Guilty" at trial. If you are convicted of D.W.I., you will probably lose the vehicle permanently. Regardless of the outcome of your case, you will be responsible to pay any towing and storage fees associated with the seizure.
If you were not the owner of the vehicle you were driving when you were arrested, the owner, including a lienholder, may be able to get the vehicle back. The owner should contact the Clerk of Superior Court in the county where the charges are pending to get more information about obtaining the vehicle.


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Should I get an alcohol assessment?

An alcohol assessment is a standardized evaluation to determine whether you have a substance abuse handicap pursuant to state guidelines. It involves a clinical interview with a substance abuse counselor. At the conclusion of the assessment, the counselor may recommend some type of alcohol class or treatment. You will be ordered to complete the class or treatment if you are convicted of a D.W.I.

If you have been charged with D.W.I., you should obtain an alcohol assessment before your court date. Obtaining the assessment and voluntarily participating in any recommended classes or treatment qualifies as a "mitigating factor" for sentencing purposes and may help reduce your punishment if you are convicted of D.W.I.
You must take your D.W.I. citation and your DEHNR 3908 (Chemical Analysis Results) to your assessment. The assessment costs between $100 and $150, depending upon the counselor you select.

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Family Law Matters

What are the grounds for getting an absolute divorce in North Carolina?

A married couple can obtain an absolute divorce in North Carolina if they have lived separate and apart for one (1) year. The couple must have lived in separate residences for this entire period. Living in separate bedrooms or not having sexual intercourse is not grounds for an absolute divorce. In rare cases, allegations of incurable insanity will suffice as grounds for an absolute divorce.


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How do I get a legal separation in North Carolina?

North Carolina law does not require judicial intervention to create a legal separation. For purposes of obtaining a divorce, it is only necessary that the spouses have lived separate and apart for one (1) year. The one-year period commences when either spouse actually leaves the residence and begins living somewhere else with the intent not to resume the marital relationship.


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Do I need a Separation Agreement?

No. Although there are several important reasons for having one, North Carolina law does not require that the parties execute a Settlement Agreement. However, a Separation Agreement drafted by competent legal counsel is advisable to (1) document the date of separation; (2) detail the distribution of marital assets and liabilities; (3) establish spousal and child support; (4) establish custody and visitation; and (5) waive inheritance rights.


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If I move out of the marital residence, can I go back home whenever I want if my name is still on the deed?

No. Under the Domestic Criminal Trespass statute, a spouse is no longer the legal occupant of the house and can be prevented from returning without the permission of the spouse who is still living in the house if the spouse has moved out.


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Is a Separation Agreement filed with the court or recorded in the Register of Deeds office?

No. A Separation Agreement is a legally enforceable contract between the spouses. It is not filed with the court, and it is not usually recorded in the Register of Deeds office. However, you will need to record a Memorandum of Separation Agreement in the Register of Deeds office if the Separation Agreement requires either spouse to refinance the mortgage or purchase property in his or her own name during the separation period.


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What do I do if my spouse refuses to pay child support?

If child support is set out in a Separation Agreement, you can file a lawsuit for breach of the contract and include a claim for the arrearage. If child support is established in a court order, the order is enforceable through contempt proceedings. A Separation Agreement does not prevent the custodial parent from seeking court-ordered child support at a later time.


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Can my spouse avoid paying alimony or child support by filing bankruptcy?

No. Alimony and child support obligations are not dischargeable in bankruptcy.


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How often can child support be recalculated?

If child support is established in a Separation Agreement, you and your spouse can agree to recalculate child support by signing an Amendment to the Separation Agreement. If one spouse does not agree to enter into an Amendment, a parent can file a lawsuit to have child support calculated based on the then-existing incomes, child care, and insurance costs. Once child support has been established in a court order, either party may file a motion to modify based on a "substantial change of circumstances." If the last child support order is more than three (3) years old and the new amount is more than fifteen percent (15%) different from the last court-ordered amount, such a change will constitute a "substantial change of circumstances" and warrant modification of the child support order.


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If either spouse committed adultery, will it have an effect on the distribution of the marital property?

No. The only fault relevant in equitable distribution is marital misconduct that has an economic impact on the marital estate.


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If I sign a deed transferring marital property to my spouse, does that remove my name from the mortgage as well?

No. The execution and filing of a deed transfers title to the property to the other spouse but does not remove the spouse’s name (or potential liability) from a mortgage. Removal of the name from the mortgage requires the other spouse to either assume or refinance the mortgage without the spouse to be removed.


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Business and Corporate Law Matters

How do I know that I can use the name I selected for my business?

North Carolina law requires that the name of a business entity be distinguishable from other entities currently transacting business or conducting affairs within the state. You may apply, however, to use a name already existing within the records of the Secretary of State’s office if 1) the other party who has previously reserved or registered the name consents in writing to your using the name and submits a form to change its own name upon the Secretary’s records or 2) you deliver a certified copy of the final judgment of a court which establishes your right to use the name to the Secretary of State’s office. A corporation’s name must contain the word “Incorporated,” “Corporation,” “Inc.,”or “Corp.”, and a limited liability company’s name must include “limited liability company” or “LLC.”


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Do I have to register my business name?

Yes. If your business is a corporation, professional corporation, limited liability company, professional limited liability company, limited liability partnership, or limited partnership, its name must be registered with the Office of the Secretary of State of North Carolina and it must be distinguishable from other existing business names. Once registered, the name is reserved for your exclusive use. After getting the name registered, an entity may continue to use the name so long as it complies with applicable renewal requirements. After your business name becomes effective, the entity becomes authorized to transact business or conduct affairs within the state of North Carolina.

If your business is a sole proprietorship or a general partnership, Office of the Register of Deeds in every county in which the business maintains offices and it must be distinguishable from other existing business names. Once registered, the name is reserved for your exclusive use. After getting the name registered, an entity may continue to use the name so long as it continues to transact business or conduct affairs within the county.


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What should be considered in determining the type of business form for my business?

There are many important factors to consider when selecting a business form, including but not limited to (1) tax treatment preference, (2) capitalization of the business, (3) whether stock will be traded publicly, (4) business management structure, and (5) liability issues for the business owners. It is recommended that you create a written business plan and that you work closely with a legal and tax advisors when selecting the business form that will best meet your needs. If your needs change, one business entity form may be converted to a different form. If you desire assistance selecting the best business form for your business and/or forming a business entity, The Virtual Law Firm may be able to assist you.


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What are the different business forms to choose from?

The business forms include: (1) sole proprietorship, (2) general partnership, (3) limited partnership; (4) limited liability partnership; (5) corporation; (6) professional corporation, (7) limited liability company, (8) professional limited liability company, and (9) non-profit corporation. Each of these forms is structured differently and offers a business owner different benefits and burdens. If you desire assistance selecting the best business form for your business and/or forming a business entity, The Virtual Law Firm may be able to assist you.


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