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DRIVING WHILE IMPAIRED – Defining “Driving”

As always, we begin our analysis by reviewing the relevant law, N.C.G.S. 20-138.1: “A person commits the offense of Impaired Driving if he drives any vehicle upon any highway, any street, or any public vehicular area within this state: While under

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DRUGGED DRIVING IN NORTH CAROLINA

Drugged Driving – or Drug DWI – is a form of “Impaired Driving,” under N.C.G.S. 20-138.1. This is the same law that the State uses to convict drunk drivers. In other words, the same law governs drunk driving and drugged driving. But, operating under the influence of drugs, and operating under the influence of alcohol, are two very different things.

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Business Card for Attorney Derek R. Fletcher
Serious cases require serious representation.
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FIREARM RESTORATIONS

North Carolina law provides a remedy for convicted felons and others prohibited from firearm ownership to reinstate their gun rights.
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FLETCHER LEGAL IS A CHARLOTTE-BASED LAW PRACTICE DEDICATED TO HELPING OUR CLIENTS NAVIGATE BOTH THE JUDICIAL PROCESS, AND LIFE’S MOST DIFFICULT MOMENTS. We constantly push the limits of what’s possible when it comes to integrating technology into solo practice with the goal of reducing client fees and expanding access to law. We believe in treating people the way we want to be treated.

WE FIRMLY BELIEVE THAT RESULTS SPEAK FOR THEMSELVES, BUT RESULTS AREN’T EVERYTHING. We believe that relationships are key, and we only accept clients that we feel we can have a successful partnership with to reach the best results. We believe that legal emergencies rarely occur during business hours, and that it is essential for clients to have Attorney Fletcher’s personal cell phone number.

WE ACCEPT CLIENTS, NOT CASES, AND WE GO WHERE WE ARE NEEDED, ACROSS ALL 100 NORTH CAROLINA COUNTIES. We stick to what we’re good at, continually pushing the envelope and streamlining process steps. We always set our clients up for the best possible outcome.

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FEDERAL FIREARMS BANS

GUY WALKS INTO A BAR LOOKING TO BUY A GUN. Buyer approaches seller, a Federal Firearm Licensee (FFL), to purchase a firearm. Before Seller may legally accept payment, and transfer title to Buyer, he must conduct a government-ordered background check to ensure Buyer is eligible to own a gun. Buyer must complete ATF Form 4473, and submit to a background check using NICS.

THE NATIONAL CRIMINAL BACKGROUND CHECK SYSTEM, OR NICS, IS A NATIONAL DATABASE ESTABLISHED AND MAINTAINED BY THE F.B.I. Launched in 1998, and mandated by the Brady Handgun Prevention Act (Brady Act) of 1993, NICS established a quick, reliable, and uniform background check on prospective gun purchasers.

NATIONAL ONLINE BACKGROUND CHECK SYSTEMS. Before selling a firearm, licensed retailers must contact NICS online or by phone to initiate a background check. Once submitted, NICS personnel use the data gathered on ATF Form 4473 to conduct a background check on Buyer to ensure they do not have a disqualifying entry in the database.

POSSIBLE RESULTS OF NATIONAL BACKGROUND CHECKS. NICS will provide Seller with one of three responses after conducting an initial search: “Proceed,” “Delayed,” or “Denied.” “Proceed” allows the firearm transfer: “Denied” prohibits sale, and if “Delayed” more than 3 days, Seller may legally transfer the firearm to Buyer, provided doing so doesn’t violate state law.

BACKGROUND CHECK CLEARANCES AND DENIALS. The overwhelming majority of firearm background checks take just minutes to clear. From 2008 to 2014, the F.B.I. processed more than 51 million NICS transactions; only 556,496, or about 1 percent, were denied. Denials usually occur when Buyer is subject to state or federal firearm bans. Felony convictions are the most common reason by NICS denial.

FELONY CONVICTIONS DO NOT PRECLUDE EVER LEGALLY OWNING A GUN AGAIN. Having a felony conviction, or a federal or state firearm ban, doesn’t mean you’ll never legally own a gun again. North Carolina law specifically creates a way to restore firearm rights by petitioning your local court.

FLETCHER LEGAL CAN HELP. That’s part of what I do: my name is Derek Fletcher, and I’m the managing attorney at FLETCHER LEGAL. We assist people exercising their Constitutional Rights, including Second Amendment Gun Rights. We go where we’re needed, all across the state. If I can ever be of service, shoot be a text or book an appointment for a video conference.

AND REMEMBER: SERIOUS CASES REQUIRE SERIOUS REPRESENTATION.

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FEDERAL PROHIBITING CRITERIA

FEDERAL FIREARM BANS.Certain events trigger federal firearm bans, state firearm bans, or both simultaneously. These are known as Federal Prohibiting Criteria, and their occurrence automatically revokes the subject’s right to own a firearm, granted through the Second Amendment. Even when these events fail to permanently deprive rights, their mere existence, such as a pending felony case, will usually trigger a denial in NICS.

  • Felony or disqualifying misdemeanor convictions: 895,331 (52.66%).

  • Fugitive from justice: 194,254 (11.42%).

  • Unlawful user / abuser of controlled substances: 164,287 (9.66%).

  • Misdemeanor domestic violence convictions: 155,017 (9.11%).

  • State prohibitions: 97,179 (5.71%).

  • Currently under indictment (pending felony): 65,753 (3.86%).

  • Subject to Domestic Violence Protective Order (DVPO): 63,928 (3.76%).

  • Adjudicated mental health: 46,266 (2.72%).

  • Illegal / unlawful residency: 29,182 (1.71%).

  • Federally denied persons file: 6,367 (.374%).

  • Dishonorable discharge: 1,258 (.074%).

  • Renounced citizenship: 101 (.00594%).
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REACH OF NICS AND FEDERAL REGULATION

WHEN SELLERS MUST CONDUCT NICS BACKGROUND CHECKS. Federal law, and thus NICS, only applies to federally licensed retailers; private sellers are exempt. Furthermore, Brady provided states a partial opt-out option, granting each the option of serving as “points-of-contact.” Point-of-contact states conduct background checks relying on state records in addition to federal resources.

WHAT BACKGROUND CHECKS MUST NORTH CAROLINA FIREARM SELLERS CONDUCT. North Carolina is a partial point-of-contact state: licensed retailers selling long rifles must conduct a federal NICS search. All North Carolina handgun sellers must verify a buyer’s valid pistol purchase permit or concealed carry license before transferring any handgun. No person may purchase or receive a handgun in North Carolina without a purchase permit or concealed carry license, N.C.G.S. § 14-402.

PERSONS IN POSSESSION OF PISTOL PURCHASE PERMITS AND CONCEALED CARRY LICENSES DO NOT REQUIRE NICS CHECKS. Federal law doesn’t require dealers to conduct NICS checks if a prospective buyer presents a valid, state-issued, purchase permit or a valid, state-issued concealed carry license. Thus, permit and license holders are exempt from federal background checks at the time of purchase.

HOW TO OBTAIN A PISTOL PURCHASE PERMIT OR CONCEALED CARRY LICENSE IN NORTH CAROLINA. To obtain a pistol purchase permit or concealed carry license, a prospective buyer must apply through the sheriff’s office in their county of residence. They must submit fingerprints, consent to a background check, and pay filing fees. Before issuance, the sheriff must be “fully satisfied” of applicant’s “good moral character,” that the applicant desires a handgun for protection, target shooting, collection, or hunting, and that the handgun transfer doesn’t violate North Carolina or federal law. Sheriffs make these determinations, and must provide written findings within 7 days, using:

  • North Carolina State Bureau of Investigations (NC SBI) records;

  • National Instant Criminal Background Check System (NICS);

  • North Carolina Administrative Office of the Courts (NC AOC) criminal history check;

  • National criminal history (NCIC) records check.
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NICS DENIALS

ERROR RATE OF NICS BACKGROUND CHECKS. Since its launch in 1998, NICS has intercepted 1.7 million attempted gun transfers to disqualified persons. Error is extremely rare: a September, 2016 Department of Justice Audit found that NICS entries were accurate 99.8% of the time. These 1.7 million denials are composed of:

  • Felony or disqualifying misdemeanor convictions: 895,331 (52.66%).

  • Fugitive from justice: 194,254 (11.42%).

  • Unlawful user / abuser of controlled substances: 164,287 (9.66%).

  • Misdemeanor domestic violence convictions: 155,017 (9.11%).

  • State prohibitions: 97,179 (5.71%).

  • Currently under indictment (pending felony): 65,753 (3.86%).

  • Subject to Domestic Violence Protective Order (DVPO): 63,928 (3.76%).

  • Adjudicated mental health: 46,266 (2.72%).

  • Illegal / unlawful residency: 29,182 (1.71%).

  • Federally denied persons file: 6,367 (.374%).

  • Dishonorable discharge: 1,258 (.074%).

  • Renounced citizenship: 101 (.00594%).

NICS APPEALS. Perhaps a better way to view this data is to look at the percentage of denials successfully appealed. Of the 61 million total transfers between 2012 and 2018, only 27,159 (.044%) were overturned on appeal. In other words, less than 4.5% of one percent of denied gun transfers are overturned because of error.

NICS APPEAL MECHANISMS. Mistakes do in fact happen: if a person believes they’ve been wrongfully denied by NICS, they should appeal. There are two mechanisms for contesting erroneous transfer denials: Challenges and Voluntary Appeal Files (VAF).

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CHALLENGING N.I.C.S. ENTRIES

CHALLENGING N.I.C.S. DENIALS. Persons wrongfully denied firearms transfers should begin the appeal process by challenging the denial. Only denials may be formally challenged, not delays (although frequent delays may constitute grounds to obtain a UPIN for smoother future purchases. Challenges provide the exact cause(s) of denial, as well as an online mechanism for error correction. Challenges may also be filed by mail: denied purchasers should file a request containing their complete name, address, NICS Transaction Number (NTN), or State Transaction Number (STN) to:

Federal Bureau of Investigations
Criminal Justice Information Services Division
NICS Section
Appeal Services Team, Module A-1
Post Office Box 4278
Clarksburg, WV 26302-4278
Fax (304) 625-0535

CHALLENGING N.I.C.S. ENTRIES

VOLUNTARY APPEAL FILES PROCESS. Voluntary Appeal Files (VAF) are another formal process designed to correct erroneous NICS entries. After challenging a transfer denial, incorrect entries should be corrected using the VAF process. The reasons a person may be denied from buying a gun are numerous, but the most common reasons are:

  • Stale misdemeanor convictions;

  • Subject has a name similar to someone subject to firearm prohibition;

  • Subject has similiar criteria to a person subject to prohibition, such as the same address, birthday, or social security number.

HOW TO PROCEED FILING A VOLUNTARY APPEAL FILE. When a person applies for VAF, NICS staff will research their unique case and provide a UPIN if there are no firearm prohibitions. Background checks will still be conducted in future firearm purchases, but UPIN’s may be used to speed up the process and avoid erroneous denials. To apply for a VAF, complete the following documents:

Submit these documents to:

FBI CJIS Division
NICS Section
INCS Functional Support Unit, Module D-1
P.O. Box 4278
Clarksburg, WV 26302-4278

Questions should be directed to: nics@fbi.gov

NORTH CAROLINA CITENSHIP RIGHTS AND FIREARMS LAW

NORTH CAROLINA CITIZENSHIP RIGHTS. Certain rights are automatically revoked upon felony conviction and automatically reinstated upon sentence completion.

EFFECT OF FELONY CONVICTION ON NORTH CAROLINA CITIZENSHIP RIGHTS. When a person pleads guilty to, or is found by a judge or jury to have committed a felony, an automatic process begins that revokes what are commonly called “Citizenship Rights.” Convicted felons are barred from:

RESTORATION OF CITIZENSHIP RIGHTS IN NORTH CAROLINA. When a person completes their felony sentence, most of their citizenship rights are automatically restored, pursuant to N.C.G.S. § 13-1. Before 1973, North Carolina law required people to either petition for rights restoration, wait a prescribed length of time, or both. Now, whenever a person completes their felony sentence, the court, or supervising agency (such as probation) enters an order, or files a certificate, evidencing sentence completion, and therefore rights restoration. Persons convicted in federal court, or out-of-state may file AOC-CR-926 or AOC-CR-919 with their local court clerk.

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FIREARM RIGHTS ARE NOT AUTOMATICALLY RESTORED

FIREARM RIGHTS ARE INDEFINITELY REVOKED FOLLOWING FELONY CONVICTION. After a person completes their felony sentence, most of their citizenship rights are automatically restored under North Carolina law. However, the right to purchase, own, transport, possess, use, and handle a firearm in North Carolina, is not automatically restored. After felony conviction, a person is forever prohibited from exercising firearm rights indefinitely. These rights may only be restored through court order.

OTHER EVENTS THAT TRIGGER FIREARM BANS. Felony convictions are not the only disqualifying event that may trigger a firearms ban. Federal law prohibits firearm transfers to people convicted of certain domestic violence misdemeanors. 18 U.S.C. 921(a)(33). Before pleading guilty to a misdemeanor triggering a federal firearm ban, North Carolina law requires that the court notify the defendant that a federal prohibition may be triggered. These persons should be provided a copy of AOC-CR-617. Persons subject to federal firearm bans may not purchase, obtain, or carry a firearm in North Carolina. (N.C.G.S. § 14-404(a)(1), N.C.G.S. § 14-415.12(b)(1), N.C.G.S. § 14-415.12(b)(86).

FIREARM RIGHTS RESTORATIONS ARE DIFFERENT THAN EXPUNCTIONS OR PARDONS. N.C.G.S. § 14-415.1 bans a person convicted of a felony from purchasing, owning, possessing, or having any firearms or weapons of mass destruction. Successful restoration of firearm rights removes the state law ban on purchasing rifles and handguns, as well as removing the concealed carry ban.(N.C.G.S. § 14-415.12(b)(3). Restoration of Firearm Rights is a distinct process, and differs from pardons and expungements.

REMOVING THE NORTH CAROLINA STATE LAW FIREARMS BAN. Theoretically, there are several ways to remove the state law firearm ban. Expunging the underlying conviction appears to lift the state law ban without filing a Restoration Petition. 18 U.S.C. 921(a)(20) exempts expunged felony convictions from federal definitions triggering federal firearm bans (see also Wyoming ex rel. Crank vs. United States, 539 F.3d 1236 (10th Cir. 2008) holding state issued expungements must completely remove all effects of state law convictions to remove federal firearms ban). Pardons issued by the Governor likely have a similar effect, but constitute a legal grey area.

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NORTH CAROLINA LAW ALLOWS FIREARM RIGHTS RESTORATION

NORTH CAROLINA FIREARM RESTORATIONS. N.C.G.S. § 14-415.4 creates a statutory process to petition for restoration of North Carolina firearm rights following completion of a felony sentence. If granted, the state issued firearms ban is removed from a person’s background (but they may have to later address the federal ban seperately). A person begins the firearm restoration process by filing a petition in their county of residence, and requesting a hearing before a District Court judge.

SIMILARITIES BETWEEN NORTH CAROLINA LAW AND FEDERAL LAW. State law closely mirrors Federal Code: codified at N.C.G.S. § 14-404(c), North Carolina law enumerates eight statutory prohibitors precluding pistol purchase grants (see also N.C.G.S. § 14-415.12 for concealed carry license criteria). To petition for firearm rights restoration in North Carolina, N.C.G.S. § 14-415.4 requires that the Petitioner:

  • Was convicted of a single, non-violent felony, or if multiple convictions, that all convictions arose from the same event;

  • Has had citizenship rights restored (automatic in North Carolina) at least twenty (20) years prior to filing;

  • File Form AOC-CR-654 in the county where they reside;

  • Have been a resident of the county in which they file for at least one year immediately preceding the filing of a petition;

  • Not be disqualified from firearm rights under some other state law;

  • Not a fugitive from justice;

  • Has no pending felony cases;

  • Not an unlawful user/abuser of alcohol, marijuana, or any controlled substances;

  • Has not been dishonorably discharged from any branch of the U.S. Armed Forces;

  • Does not have a Prayer for Judgment Continued entered in any North Carolina felony charges;

  • Have no other felony convictions, felony PJC’s, or misdemeanor “crime-of-violence” convictions;

  • Not subject to any N.C.G.S. § 50B Domestic Violence Protective Orders, or N.C.G.S. § 50C Civil No-Contact Orders.

CONTACT FLETCHER LEGAL FOR QUESTIONS CONCERNING ELIGIBILITY. A person meeting all eligibility requirements seeking to restore their firearm rights should petition for restoration immediately, or contact our office for assistance.

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PETITIONING FOR RESTORATION OF NORTH CAROLINA FIREARM RIGHTS

HOW TO PETITION FOR RESTORATION OF NORTH CAROLINA FIREARM RIGHTS. To begin the process of restoring North Carolina firearm rights, an eligible person must file Form AOC-CR-654 in the District Court where they reside, and submit their fingerprints to the North Carolina State Bureau of Investigation (NC SBI). Submission of false information when petitioning for firearm rights restoration not only constitutes a Class I misdemeanor, but also carries a lifetime ban on ever petitioning for restoration ever again.

FILING FEES AND SERVICE OF PROCESS. At the time of filing, Petitioner must include certified funds in the amount of Two Hundred Dollars ($200), and serve a copy on the local District Attorney’s Office. The D.A.’s Office must be provided at least four weeks to research Petitioner and his case, before conducting a hearing in District Court.

BURDEN OF PROOF AT NORTH CAROLINA FIREARM RIGHTS HEARING. At the hearing, Petitioner bears the burden of proving they are eligible for relief by a preponderence of the evidence. Petitioner may do so by calling character witnesses, producing documents, or providing other helpful evidence to the court. Adversely, the District Attorney may call rebuttal witnesses or present adverse evidence to persuade the court to deny Petitioner’s request.

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HOW TO WIN YOUR NORTH CAROLINA FIREARM RIGHTS RESTORATION HEARING

ELEMENTS PETITIONER MUST PROVE AT FIREARM RESTORATION HEARING. To win his case, Petitioner must prove each of the following by a preponderance of the evidence:

  • Petitioner has been a continuous resident of the county where the Restoration Petition has been filed; their period of residency is at least one year long.

  • Petitioner has been convicted of a single, non-violent felony, or if multiple convictions, that they arose from the same transaction or event;

  • Petitioner’s Citizenship Rights have been restored at least Twenty (20) years;

  • Petitioner has submitted their fingerprints to NC SBI; and

  • Petitioner is not subject to any disqualifiers contained in N.C.G.S. § 14-415.4(e).

FIREARM RESTORATION PETITION DENIALS. If, following the hearing, the judge denies Petitioner’s request, the reasons for denial must be stated, and Petitioner may refile one year later. Depending on the stated reason, Petitioner’s best course of action may be to either give notice of appeal, or wait out the one year.

SUCCESSFUL FIREARM RESTORATION PETITIONS. Should the judge agree with Petitioner and grant relief, the North Carolina state law ban prohibiting firearms is effectively removed. Firearm use or possession by Petitioner no longer constitutes a North Carolina crime. Petitioner should theoretically be able to walk into any firearms retailer, pass a NICS check, and leave with a gun. In practice, however, rarely is the case so easy.

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NORTH CAROLINA LAW PROVIDES A PATH TO LEGAL FIREARM OWNERSHIP AFTER A FELONY CONVICTION. FLETCHER LEGAL HAS THE EXPERIENCE TO GET YOU RESULTS.

NORTH CAROLINA CITIZENSHIP RIGHTS. North Carolina felony convictions automatically remoke many citizenship rights, including the right to vote, the right to run for office, and the right to possess a firearm. Although many of these rights are automatically restored when a convicted felon completes their sentence, a person must successfully petition their local district court for restoration of their firearm rights.

FIREARM RESTORATION ELIGIBILITY REQUIREMENTS. To petition a North Carolina court for restoration of firearm rights, a person must meet all eligibility requirements, submit their fingerprints to the state SBI, and file a petition requesting a hearing. At the hearing, both sides may present evidence, and if the Petitioner loses, they must wait another year before filing again.

FLETCHER LEGAL HAS THE EXPERIENCE NEEDED TO HELP YOU SUCCESSFULLY RESTORE YOUR NORTH CAROLINA FIREARM RIGHTS.  If successful, North Carolina Firearm Restoration Petitions should remove both state and federal bans. Thus, a successful petitioner should pass a NICS check, and legally purchase a gun. If a person is having difficulty removing the federal prohibition, they may need professional legal assistance convincing the F.B.I. to change the entry.

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WHERE WE GO: GEOGRAPHIC PRACTICE AREAS

Although we travel across the entire State of North Carolina – to each and every District and Superior Court – we are based in Charlotte. You could say that our home base consists of the following:

Serving: Mecklenburg, Union, Gaston, Cabarrus, Iredell, Rowan, Cleveland, Lincoln, Stanly, Davidson, Catawba, and Anson Counties, as well as Charlotte, Huntersville, Cornelius, Davidson, Lake Norman, Mooresville, Troutman, Statesville, Matthews, Mint Hill, Harrisburg, Weddington, Waxhaw, Indian Trail, Monroe, Wadesboro, Wingate, Polkton, Concord, Kannapolis, China Grove, Salisbury, Lexington, Thomasville, High Point, Denver, Lincolnton, Newton, Conover, Hickory, Belmont, Lowell, Mt. Holly, Lowesville, Gastonia, Dallas, Bessemer City, Kings Mountain, Shelby, Pineville, Midland, Locust, Albemarle, Rockingham, Asheville, Winston-Salem, Greensboro, Raleigh, and Wilmington.

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FLETCHER LEGAL HELPS CLIENTS JUST LIKE YOU!

SERIOUS CASES REQUIRE SERIOUS REPRESENTATION. If you or someone you know has questions restoring their firearm rights, or to begin the process of restoring your gun rights now, call FLETCHER LEGAL at 704-747-7262, shoot that number a text, step into our virtual lobby for a video call, or book an appointment now for your free case evaluation. Fletcher Legal has helped clients restore North Carolina firearm rights, appeal from pistol purchase denials, and challenge concealed carry decisions. We conduct independent investigations in every case we take, which reduces denials, and ensures a smooth hearing.

VIRTUAL SERVICES REDUCE CLIENT EXPENSES. Schedule an appointment today to speak with Attorney Fletcher, either by video call, text message, or phone call. We offer flexible payment arrangements, independent investigations, and 24 x 7 emergency services. Book an appointment online now to begin building your defense.
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