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So this past week a guy comes to me with a trespass charge. Seems he was at a construction site “collecting” bits of copper wire to sell. Unfortunately the construction site had a conspicuously posted sign that said “no trespassing” and “violators will be prosecuted to the full extent of the law” etc etc. Not so good.

So a Raleigh Policeman rolls up on the scene and sees this guy picking up wire, right? Wanted to know what he was doing there and why. Well in fact he HAD worked for the construction company before (but it was a couple years ago). And in fact he really DIDN’T see the “no trespassing” sign (which was posted in English anyway and my client neither spoke nor read English). Furthermore, the little bits of copper wire that he was collecting WERE just that, little bits of wire that were on the ground and were in all likelihood going to be discarded. Hey, he was doing the construction people a favor! They wouldn’t have to hire anyone to clean up the wire bits!

Well, that’s all well and good, but it wasn’t enough to satisfy the Raleigh Police Department. After a ride downtown in Raleigh’s finest taxi service, our hero is given a very moderate bond and is let out of the hoosegow. Next day he comes to see me. “What can we do?”, he wants to know.

 

The gears in my keen legal mind start turning and grinding

 

My initial thoughts: Seems there might be an argument if he simply didn’t know he wasn’t supposed to be there. But alas, there was a sign posted for all to see “no trespassing”, and there was even a fence around the whole place. Any mileage to get out of the “but he couldn’t understand the sign because it was written in English” argument? I dunno about where you are, my friend, but here in the conservative buckle of the bible belt, home of Governor Pat McCrory and the late Jesse Helms, we’re damn lucky if they don’t try to enforce a state religion. To say that there is no sympathy for non-English speakers who transgress the law because they can’t read the warnings would be the understatement of the century. So much for the legal argument stuff.

How about we cook a deal?

Day of court I go talk to the cop. Nice guy. Confirms all I had heard about the case. To boot, he says that he even likes my client (well, in a cop way anyhow, meaning he didn’t have to pepper-spray him). Next stop: DA. I tell him the whole deal, right out and candid. So what can he do for my guy? Well, you may have read my earlier blog on the several diversion programs that exist here in Wake County for first offenders. If not, please do so (they are informative and can save you some dough).

Here’s what happened: The DA suggests that, providing the cop is on board, he will allow my client to perform some 40 hrs of community service at a non-profit organization, bring a letter in showing that he has done so, and the case will be dismissed. No fines, no courts costs, nada. He even has a generous three months to do it in. Note: This may also have been available through the “real” diversion program that exists here in Wake County for first offenders with misdemeanor violations. But there are a few advantages to this alternative:

Unlike the “sponsored” first-offender program, the deal that was worked somewhat informally with the DA is not subject to the “only one” limitation. Whereas for the “formal” diversion program a record of each defendant’s admittance/completion is kept so that he may not go through the program more than one time, NO SUCH record is kept of these “informal” diversions.

Where the formal diversion program requires payment of the program fee and court costs (which can total around $500), what the defendant must pay for an informal diversion agreement is absolutely a function of each separate agreement with the DA. That is, if you agree to pay something—like restitution maybe—then you pay as a condition of the agreement. If not, then not. Similar to the formal first offender program however, it is OFTEN (though not always) the case that a written agreement is signed by defendant, prosecutor, judge, DA and defense attorney setting out some fine-print conditions that follow pretty closely to the spirit of the formal program (that in order to be in compliance the defendant must stay out of trouble, not pick up new charges etc). One of these conditions is that by signing the deferral agreement the defendant is actually pleading guilty but the sentencing is held in abatement until he comes back to court and presents his program completion information (like in this guy’s case, a letter showing he did 40 hours of work at the Salvation Army or some such place).

As well, it is common that the written-but-“informal” diversion agreement includes a provision such that if the guy flunks out (fails to do what he is supposed to) then the guilty plea he tentatively entered to get into the program will be used against him and it can’t be withdrawn and furthermore, that no appeal can be made thereafter to put the case in Superior Court (we have trial denovo in NC).

The Bottom Line: “Atonement”

If you get a citation or get arrested for some misdemeanor charge, it might do you good to see if you can work it out with the DA by offering to “atone” for your misdeed by means of community service. If the cop is on board with it (were you nice to him?) and you seem pretty contrite and remorseful about the whole deal, there’s a good chance that an informal deferral can be arranged.

Back to my guy: he accepted the deal, and now has 90 days to come back and show compliance. Not only did I salvage his criminal record, but saved him the costs of the formal program AND the court costs in this case itself. Had he been able to work this deal himself there would have been no attorney fee either. I’d say his total savings were about $500.00-$1000.00 (attorney fees, court costs, program costs).

Hey, the way I see it is this: go through the formal program and expend state resources (the folks who administer the program primarily) or, do the same kind of stuff without taxing those costs to the overburdened State and get the same result. Everyone’s a winner!

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