• North Carolina Criminal Law | How a Motion to Continue Works
  • August 16, 2012
  • Law Firm: Matheson Law Office PLLC - Raleigh Office
  • When facing a North Carolina Criminal Charge, at some point, your presence will be required at the courthouse. As a Raleigh Criminal Lawyer and Raleigh Traffic Attorney, I find myself in court almost daily. North Carolina Criminal Courts have various procedures and policies which are followed and one of the reasons it helps to have an attorney assisting you with your case, as they are familiar with them. This is especially true for certain policies which are unique to individual counties, so that the way one thing is handled in one court, may be handled completely different in another. However, one of the staples which is consistent (to some extent) through the various North Carolina Criminal and Traffic Courts is the Continuance. Many of my clients have misconceptions of this process, or are unaware of it all and think they missed out on a perceived advantage when an Officer is present in court. This article will explain the function of the Continuance, how it is applied, and in what ways it can work to a Defendant's benefit (though not too often).

    So, let's say you are wondering "Got a North Carolina Speeding Ticket, now what?" Well, when a matter is scheduled for Criminal District Court in North Carolina, both sides, the State and the Defendant are suppose to be present (though for some traffic matters, called 'Waivable Offenses' an attorney can appear on the Defendant's behalf). When one side is not prepared to proceed, then they can make a motion to continue the case to a future date; better known as a 'Continuance.' The State would ask for a continuance if the Officer who wrote the Raleigh Traffic Ticket isn't available or if there is a witness they will need in order to proceed on the case. The State may also ask for a continuance just because it's a particularly full docket that day and don't have time for a trial. The Defendant can ask for a continuance if they are not ready to proceed at trial, or if they need more time to get evidence together, or to work out a plea deal.

    Both sides are given a number of continuances. What is confusing for most facing a Raleigh Misdemeanor Charge or Raleigh Felony Charge is, there is no set number of continuances each side is given. In some counties, they have policies in which a matter is suppose to be resolved in (as an example for a Durham DWI, the matter is suppose to be resolved with in 120 days unless the Defendant's blood was taken, then 180 days). Since there is no set number, then it's hard to depend on how long it will take for a matter to resolve. At some point, one side will ask for too many continuances and the Judge will make that case as "Last." 'Last' means that, though that Judge is going to grant the motion to continue, they have indicated on the shuck (the envelope which contains documentation regarding the case) that at the next court date, the side for whom it was marked 'Last' should not be granted a motion to continue and should be prepared to proceed on that day. To make matters more confusing, even when a matter is marked 'Last,' the Judge on the next court date may still grant a motion to continue given certain arguments the moving party may make. This recently worked to my benefit as I was hired as a client's Raleigh Criminal Attorney, where his court date was the following day. When I got to court, the Defendant's shuck was marked 'Last' from the previous court date. Fortunately, I explained to the Judge I was just retained and would be unable to proceed that day, so the Judge granted my motion to continue.

    These continuances become especially frustrating for Defendant's when the Police Officer or witness does not come to court and the State is permitted a continuance. The Defendant is required to be there and so should those who are accusing the Defendant. Most people believe that if the Police don't show up, the case will be dismissed. However, since the State can get continuances as well, they will be given plenty of time to get an officer to court. Recently, I had the good fortune of representing an out-of-state driver who was charged with a North Carolina DWI. We had asked, and the Judge had obliged, to mark the Shuck 'Last' for the State at a previous court date as the Officer was not at court and the Defendant had not only driven down from up North for his case, but brought a witness, whom he had to pay for room and travel expenses. At the next court date, the Officer was again not available and the State was unable to proceed. The Prosecutor dismissed the charges against my client. Though this is a wonderful outcome for my client, it may not be the end of his case. In North Carolina, the State has the option of refiling the same charges against a Defendant where the charges had previously been dismissed. Though this sounds like a violation of the Defendant's double jeopardy rights, the Court's have found that it is not, namely because Jeopardy does not attach until the Defendant enters their plea (which doesn't happen unless the State calls it up for trial). Since the case was dismissed prior to my client entering a plea, then technically, he may still face the DWI charge.

    As you can see, this can be a very confusing area of trial practice. if you are facing a Raleigh DWI charge or any other criminal charge in North Carolina, contact a local criminal defense attorney for advice on how to handle your case.

    Disclaimer - Information and advice offered in this article is for informational and educational purposes only and is specific to North Carolina law. The viewing, receipt and/or exchange of information from this article does not constitute an Attorney-Client Relationship. For assistance regarding your particular legal question speak with an Attorney practicing in the field from which your questions derives.