This month, I had the privilege of serving as Editor of Trial Briefs Magazine, a magazine published by the North Carolina Advocates for Justice and written by trial lawyers for trial lawyers. In this issue, a staggeringly talented array of authors provide insight and analysis on practice areas under the broader topic of LGBTQ civil rights issues. 

As an author, I took on HB2, HB142, and the legal and human dimensions of political compromise. 

I invite you to read this piece and comment here. Thanks for visiting!

New expungement laws in North Carolina have given more Asheville residents an opportunity for a clean slate. The new laws, which took effect in December 2017, are complex at first glance. One major change is in the number of expungements people can get in North Carolina.

​The answer to this question depends on the timing of your charges and how they were resolved in court:

Expunging multiple convictions at once is generally possible if the charges in question were disposed of in the same term of court or in the same 12-month period. This is only true of non-violent offenses.

• Therefore, if you were convicted of a nonviolent misdemeanor in December 2005 and of a nonviolent felony in June 2006, it is possible that you could have both of these charges expunged from your record because they were disposed of in the same 12-month period.
• If you were convicted of both of these charges in December 2005 during the same term of court, you would also be eligible to have them expunged.

People who have felony convictions must wait for 10 years before they can file for an expunction. Misdemeanor convictions carry a 5-year waiting period before they are eligible for expunction.
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There is no limit on how many dismissals or verdicts of not guilty you can expunge. This contrasts with North Carolina expungement laws prior to December 2017, when only one expunction was allowed in most cases, even when the charges in question were dismissed. This rule only applies if you have not been convicted of a felony since the charge(s) you want to expunge were dismissed.

​Multiple convictions on your criminal record can prevent you from getting gainful employment and stable housing – a seemingly-insurmountable bar to leading the kind of life that would allow you to provide for yourself and your family. There may be some post-conviction relief available to you even in cases like this.

​While anyone can file an expunction petition themselves, it is always safest to consult with an attorney before taking any legal action. Without the advice and skills of an experienced attorney, the expunction petition you file could bar you from seeking this relief in the future. Contact our firm today or use the form below to discuss your criminal record with one of our attorneys.

Thousands of Buncombe County residents have been able to clean up their criminal records by expunging dismissed charges or old convictions. However, until recently there were major shortfalls to North Carolina’s expunction laws. These shortfalls left many people struggling to find and keep a job or an apartment after their criminal case had been resolved. Many of these people found it hard to make positive change in their lives with old charges hanging over them.

​The North Carolina legislature made significant changes to the existing expunction law in 2017. These changes have the potential to help thousands of people move on with their lives after being charged with a crime. Here are the highlights of the new expungement legislation:

Some of the old limits of the law still apply. For instance, people can only seek an expunction if they have not previously been convicted of a felony. Only nonviolent charges that were unrelated to domestic violence can be expunged. Special rules apply to expunging DWI charges.
 
In addition, charges and convictions that are expunged after December 2017 – when the changes go into effect – can be accessed by district attorneys’ offices and can be considered as prior offenses for sentencing purposes in future criminal cases.

Getting an expunction was already complicated, especially for someone who didn’t know how to get a criminal record expunged. The changes to NC’s expunction law, while positive, are likely to make the process even more complex. In addition, even if you are not sure if you are eligible to expunge your charges, it’s important to speak to an attorney to be sure. Sometimes there are other ways of asking the courts to order that old charges be erased from your record. For more information about the expungement process in North Carolina and how an attorney can help, contact us through the form on this page or call our Asheville law office at (828) 255-5400.

2016 has been a turbulent year for North Carolina. This year, our state’s legislature enacted the controversial law HB2; protesters have been arrested at political rallies; police shootings in Asheville, Charlotte and other cities have resulted in explosive protests and civil disobedience.
 
Unfortunately, many people find themselves handcuffed and detained in jail when they participate in protests. You may have found yourself ticketed for disorderly conduct and hoping your disorderly conduct charge could be dropped. Like other Asheville residents, you may find yourself questioning how you could be arrested for exercising your Constitutional rights.

Doesn’t this infringe on protesters’ First Amendment rights? Not exactly. While every American has the right to peaceful assembly, this right is not without its terms and conditions. For example, the U.S. Supreme Court has recognized the right of states to restrict the “time, place, and manner” of protests.
 
Protesters are not arrested for “protesting.” For example, in August 2016, eight people were arrested for disorderly conduct when they protested the Asheville police shooting of a black man. If you are arrested at a protest, it will probably be for misdemeanor offenses like this, such as:

• First- or second-degree trespass
• Failure to disperse on command
• Impeding traffic
• Disorderly conduct
• Rioting
• Inciting to riot
• Unlawful assembly

​Some groups plan acts of civil disobedience, such as sit-ins, to protest unjust policies or incidents. Getting arrested is often a planned outcome of this type of protest. However, most people who show up to protests simply want to exercise their First Amendment rights without ending up in handcuffs or zip-ties.
 
Some things to keep in mind if you want to avoid getting arrested at a protest:

• Keep back from entrances and exits of buildings
• Do not block hallways or corridors if you are protesting inside a building
• Do not damage any property. This includes acts like marking or defacing buildings.
• Do not interfere with the rights or safety of other people
• Avoid “rude or riotous” speech, like swearing or insults
• Do not make threats or fight

 
Keeping to a traditional public forum such as a public sidewalk or park is another way to avoid arrest. Protests in these areas do not require a permit, whereas protests in streets do. Police can and often will remove protesters from government buildings.

​If you’ve been charged, issued a citation, or fear punishment for disorderly conduct after a protest, you probably have concerns about your criminal record and negative impacts the charges might have on your life. The skilled criminal defense attorneys at Brazil & Burke have years of experience in dealing with misdemeanor charges and civil rights cases. Give us a call today or fill out the contact form below to schedule a consultation where an attorney will evaluate your case and develop a plan to minimize the effect of criminal charges on your work, school, and personal life.

On July 1, a couple of new and notable laws came into effect.  First of all, mopeds are now required to carry liability insurance. Roughly 28,000 North Carolinians rely on mopeds to get to and from work and school. You still do not need a motorcycle endorsement on your license to drive a moped with an engine under 50 cc's. Yours truly enjoyed a 125 cc Genuine Buddy for several years, and I can personally attest that the annual insurance premium is well worth coverage for damage and theft. If you currently have a moped under 50 cc's (usually 49 cc's), be sure to contact the NC DMV to provide proof of coverage. You'll receive an updated registration card in the mail. 

Also, a new late fee has gone into effect for people who forget to update their registration on time. Smart phone and online calendars are a reliable way to set a reminder so that you don't miss the renewal period. You can renew your plate up to 90 days before it expires online here. 

We'd be remiss not to mention that between a 3-day weekend and low gas prices, this 4th of July is believed to be the busiest weekend of travel in history, with an anticipated 43 million motorists anticipated on our nation's highways. Along with that comes traffic congestion and a greater law enforcement presence to keep our roadways safe. The North Carolina Highway Patrol will be conducting "Operation Firecracker," aimed at keeping impaired drivers off the road with increased patrols and checkpoints. Last year, there were 418 alcohol-related deaths, and 135 this year. If that doesn't deter you, keep in mind that even a first-time a DWI is thousands of dollars cheaper than a cab, Uber, or Lyft!

We beg of you to be safe. If you or someone you love is going to enjoy the holiday with adult beverages, please plan ahead. Physicians will tell you that there is no meaningful difference between a .05 or .08 blood alcohol level, meaning that even if you've only had one Asheville IPA, you may not be able to operate a vehicle safely. After 1 drink, your judgment is not as clear as it is before you drink, so please plan ahead before you take your first sip. Make arrangements for a sober driver, stay the night, or consider the cost of a cab or ride share service being worth both a fun weekend and keeping yourself and others safe. It could be your family on the road. If you find yourself in a pickle this weekend, be sure to call our DWI attorneys. You can also get in touch with our Asheville criminal defense lawyers with the contact form below.

Have a safe and happy 4th of July!

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If you're reading this post, then you probably know good and plenty about HB2. In which case, by now, you may well be asking yourself: is our North Carolina legislature seriously passing laws about where I go to the loo? In an era of rising costs of living, tanking investment in education, and a host of actual problems that require serious solutions, you wouldn't be wrong to imagine that our legislature's lawmaking around where you use the toilet is somehow an appropriate metaphor. Seemingly, this issue shouldn't even warrant a blog post. But here we are.

A quick primer on the case, G.G. v. Gloucester County School Board: G.G. is a boy. He is a 16 year-old Virginia high school student. And, like every human before him and since, in the course of a 7-hour school day, he needs to pee. G.G. started using the boys' bathroom with approval of the school administration. Shortly thereafter, the local school board implemented a policy to prevent G.G. from using the boys' bathroom. Most of the 37 people who spoke at public comment during the meeting - i.e. adults - spoke against G.G. - a child - in ill-informed and crude ways, and the vote carried 6-1.

Here, we must pause for a moment on the human realities of this case. Remember what it was like to be 16? Maybe you fretted over taking your driver's license test. Maybe you feared rejection from a would-be first date. Maybe you had that now-comically common nightmare that you forgot to wear clothes to school before trying to sit at the cool kids' table. Now imagine that your school board - not your teacher, not your principal, but their bosses - put YOU and your private moments on their agenda, then enacted a POLICY about it. Lesser mortals may have quietly acquiesced. Maybe they would have transferred. But not G.G. He sued the pants off them. 

G.G. brought two claims: (1) that preventing him from using the bathroom that corresponds to his gender identity violates Title IX, namely as it has been interpreted by regulations enacted by the Department of Education; and (2) that this policy also violates the Equal Protection Clause, which also prohibits sex-based discrimination. G.G. filed a motion for a preliminary injunction to prevent the school from enforcing this new policy. The reasons should be obvious. But it suffices to say that a student forced to use a bathroom that does not correspond to his gender identity - like, say, the girls' room - is dangerous for a young boy. Taunting, bullying, even violence - these are things we know that the vast majority of transgender kids face in schools, which are microcosms of the culture and laws teaching it how to act. Not to mention that using the boys' room is the medically appropriate course for a young man diagnosed with gender dysphoria who has taken many, many private and public steps in his transition to arrive at this moment.

Generally, to win on a preliminary injunction, G.G. needed to show 4 things: (1) likelihood of success on the merits of his claim later on; (2) irreparable harm if immediate relief were not granted; (3) balancing the harms to both sides, that the scales tipped in favor of giving G.G. relief; and (4) granting an injunction would serve the public interest. At a hearing in district court, the judge dismissed his Title IX claim, ostensibly finding that the school's policy did not violate the express language of Title IX. The trial court denied G.G.'s motion for a preliminary injunction. G.G. appealed to the Fourth Circuit.

In ruling for G.G., the Fourth Circuit rejected the trial court's rationale and application of law. Title IX states: "no person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational program or activity receiving Federal financial assistance." The issue boils down to this: what does "on the basis of sex" mean? Does it include transgender people, whose biological sex at birth and gender identity are not aligned?

As to transgender students, the answer is not so clear-cut. It's certainly not answered by the express terms of the statute itself. Note here that this is precisely why laws like these - Title IX, Title VII, Title II, etc. - need to be amended to expressly include gender identity and sexual orientation. So to answer the question, the Department of Education, a federal agency, relied upon widely accepted scientific research in adopting a policy in January 2015 to make clear that "on the basis of sex" means that transgender students must be treated in accordance with their gender identity. Also really important: the DOE policy is consistent with other federal agencies, including the Equal Employment Opportunity Commission, Occupational Health & Safety Administration, Department of Housing and Urban Development, and Office of Personnel Management. 

Back to G.G. The Fourth Circuit held that the trial court did not adequately afford deference to the Department's regulations in interpreting Title IX. That's another way of saying that Title IX protects G.G.'s right to use the boys' bathroom. The case was remanded back to the trial court for a ruling consistent with the 4th Circuit's opinion. Even if the judge refuses to follow the Fourth Circuit's ruling, you can bet any errors will again be corrected on appeal. 

So, what do you take from this? First of all, that North Carolina honest-to-goodness seriously risks losing its $4 billion in Federal funding if it doesn't repeal the parts of HB2 that expressly, facially violate Title IX by requiring transgender students to use a bathroom that does not correspond to his/her/hir/their gender identity. The rulings of the 4th Circuit are binding on North Carolina. HB2 violates Title IX. 

Secondly, that this November's election is enormously significant in lesser known ways. Many people understand that the next President will appoint a large number of federal judges, like the ones sitting on the Fourth Circuit and the Virginia District Court - not to mention anticipated vacancies on the U.S. Supreme Court. But the 4th branch of government is what I'm talking about here. The administrative regulations interpreted by 5 major federal agencies that impact the most basic tenets of life - school, employment, housing, and safety - did not spontaneously construe Title IX to protect transgender students, workers, tenants, and citizens. Administrative agencies are vested with lawmaking authority vested by Congress, and the Executive Branch is vested with substantial authority to constitute these agencies with appointments. It was Obama appointees who were receptive to the recommendations of the medical community met by the tireless work of advocates who brought these regulations to bare that are now shaping law.

B&B is proud to have stood with the LGBT community from the beginning. If you or someone you know is negatively impacted by HB2 and needs to talk to an Asheville civil rights lawyer, give us a call or use the contact form below. We'll go with you.

The lawyer answer: sometimes. 

As the title may suggest, when asked about my most publicized or largest cases over the years, I get humorous reactions when I reply, “Ginseng.” In today’s backdrop of TV crime shows and 24-hour news cycles full of violence, I can understand that reaction. Poor Appalachian folks digging a seasonal plant in the forest hardly compares to cases like Making a Murderer on Netflix. But the reality is that ginseng is disappearing and the federal government is cracking down on poachers (or ‘sangers, in the local vernacular).

The next reaction I get after the chuckles wear off is, “I didn’t know that was illegal,” or “why is it illegal?” To answer the former, it isn’t entirely illegal. It is legal on private property, with the permission of the land owner. It is also allowed when in possession of a valid permit issued by the U.S. Forest Service; though issuance of such permits are becoming more restricted and only work for limited sessions (usually a couple of weeks).

What concerns the federal government and many botanists, however, is the latter question. It is illegal because ginseng is disappearing. In addition, once harvested, even after Rangers and Forest Service officers try to replant seized roots, it is typically too damaged to replenish itself or continuing growing. Ginseng also has a lengthy maturity timeline. Most plants take 7-9 years to mature, meaning they cannot produce seeds (small red ball-like objects that only appear during the summer), which then fall into the ground to create new ginseng roots.

The valuable part of the ginseng plant is the root. While a legal market for ginseng root exists, the real value to ‘sangers is the black market. The government’s agents estimate the root bringing $500-800 a pound, but I have heard firsthand accounts of up to $1200 per pound. That is serious cash for someone without means but an eye for ginseng. You can see why it may seem worthwhile when weighed against a possible 6-month jail sentence.

‘Sangers identify the root by the plant that pops out of the ground (easy to miss by the layperson on a leisurely hike). Once harvested, which usually occurs with some sort of digging tool, the root typically runs through a middle man and winds up in China or other parts of East Asia. Many eastern medicine followers believe the root has incomparable healing qualities and can help with virility. Who says there is an export deficit with China??

Either way, unless you have that limited permit mentioned earlier, it is best to not spend your time foraging in the federal forestland for this valuable, vanishing root. The Government won’t think it is so funny if they catch you. If you find yourself facing federal criminal charges, the skilled defense lawyers at our Asheville firm are ready to defend you. Call us today or fill out the contact form below to schedule a free consultation with one of our lawyers.

- Corey 

Welcome to the B&B Blog. We’re thrilled you found your way here. We hope to keep you coming back for more with posts on relevant legal topics, tinged with humor and tips that keep you out of trouble. (But should you find yourself in the proverbial pickle, we know a good lawyer or few.)
 
Brazil & Burke has a proud tradition and culture of fighting for the rights of our clients. But more than that, we’re a progressive law firm that evolves to meet the demands of the changing needs of our community in the face of changing and challenging times. We’re small, but feisty. We’re driven, but nimble. No matter the case – whether it’s a speeding ticket or a brief in the U.S. Supreme Court – we are all-in with our clients.
 
It is, after all, you – our clients – that makes us love what we do.
 
We look forward to going to work for and with you.