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Speedy Trial and Other DWI Issues

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11/09/17

There were several new Court of appeals rulings handed down on DWI issues.  Read below the blog post by Shea Denning from the School of Government.

Habitual DWI. G.S. 20-138.5 makes it a felony for a person who has been convicted of three or more offenses involving impaired driving within ten years of the date of the latest offense to drive while impaired. Unlike the statute defining habitual felon status, which requires that each qualifying predicate felony be committed after the person has been convicted of the earlier felony, G.S. 20-138.5 does not require that the prior felonies occur in any particular sequence.

State v. Mayo. Glenn Mayo, Jr. was indicted for habitual impaired driving in December 2015, following his arrest a month earlier for impaired driving. The State alleged that Mayo had three prior convictions for offenses involving impaired driving that occurred within ten years of the November 2015 DWI:  a DWI conviction on September 30, 2015 in Johnston County Superior Court, and two DWI convictions on December 20, 2012 in Wake County District Court. Mayo argued on appeal that the habitual DWI indictment was invalid because two of the underlying convictions were on the same court date. He alleged that G.S. 20-138.5 was ambiguous because it did not address how to treat multiple convictions from the same date and that it should thus be construed in a similar manner to the habitual felon statute. The court of appeals rejected Mayo’s argument. Noting that G.S. 20-138.5 was silent about the timing of the three prior impaired driving convictions other than to require that they occur within the ten years before the latest offense, the court “decline[d] ‘to insert words not used’” by the legislature.  (Slip op. at 8.) The court further noted that it previously had ruled that the determination of what qualifies as a predicate conviction was carried out differently under the habitual impaired driving statute and the habitual felon law.  As a result, the court held that the defendant failed to show error in his habitual impaired driving indictment.

Corpus delicti. This Latin phrase comes up a lot in impaired driving accidents where the defendant confesses to driving, but no other witness saw him doing so. The traditional formulation of the corpus delicti rule requires that there be corroborative evidence, independent of the defendant’s out-of-court confession, to show that the crime occurred. The North Carolina Supreme Court has modified that rule for non-capital cases, permitting the State to rely on a defendant’s confession to obtain a conviction so long as there is strong corroboration of the essential facts and circumstances embraced in the defendant’s confession.

State v. Sawyers. Jason Sawyers was charged with impaired driving and other offenses after the Dodge Charger in which he and his girlfriend were traveling ran off the road, hit a tree, and landed in a ditch.  The first officer arrived about five minutes after the crash and found Sawyers seated in the driver’s seat and his girlfriend in the passenger seat. Sawyers, whose license was revoked, later admitted to another officer that he had been driving at the time of the accident. At the conclusion of the State’s evidence, Sawyers moved to dismiss the impaired driving charge on the basis that the State had to prove that the vehicle was actually “‘moving and running’” and the evidence merely established that he was “‘sitting in the passenger seat of a wrecked car.’” (Slip op. at 4.) The trial court denied the motion at that juncture and again when Sawyers renewed it at the close of all the evidence. Sawyers was found guilty and appealed, arguing, among other things, that the State failed to present sufficient corroborative evidence, independent of his admission that he had been driving, to prove that he was the driver. The court of appeals rejected Sawyer’s argument, which it characterized as founded upon “a common misunderstanding of the corpus delicti rule.” (Slip op. at 8.) The court explained that the rule was designed to guard against the possibility that a defendant will be convicted of a crime that never occurred—not to prevent the wrong defendant from being convicted of a crime that did occur. For that reason, a confession identifying the perpetrator of the crime is not subject to the corpus delicti rule.

The Sawyers court explained that State presented substantial evidence at trial to establish that immediately before the crash, the Dodge Charger was speeding down a curvy road. The first officer to arrive at the scene noted that both Sawyers and his girlfriend smelled of alcohol. This evidence satisfied the requirement that the State present evidence tending to show that the crime of impaired driving occurred. It was thus permissible for the State to rely upon the defendant’s confession to prove that he was the driver. Moreover, the court noted that witnesses saw the defendant get out of the driver’s side of the vehicle seconds after the crash and the girlfriend’s purse was found on the passenger floorboard, facts that tended to support the trustworthiness of the defendant’s admission.

Speedy trial. DWI cases often take longer than other misdemeanor charges to try. Delays may result from circumstances including (1) the time necessary to obtain the results of a chemical analysis of the defendant’s blood from a crime laboratory and to secure the attendance of the chemical analyst at trial; (2) litigation of motions to suppress and dismiss, which may be appealed from district court to superior court and are then remanded for entry of final orders in district court; and (3) the dismissal and re-filing of charges. Several appellate opinions address the merits of speedy trial claims filed by defendants based on such delays. A court considering a defendant’s motion to dismiss for violation of the right to a speedy trial must assess and balance four factors: (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of his or her right to a speedy trial; and (4) the prejudice to the defendant resulting from the delay.

State v. Armistead. James Armistead was charged with impaired driving in Pitt County on September 3, 2011. On May 1, 2012, two days before his DWI trial was scheduled to begin, Armistead was sentenced in Beaufort County to imprisonment for a term of 108 to 139 months. Neither Armistead’s appointed counsel on the DWI charges nor the Pitt County prosecutor knew about the Beaufort County case. Because he was imprisoned, Armistead did not appear in court on May 3. The following September the prosecutor dismissed the DWI charge with leave to later reinstitute the proceedings.

Meanwhile, from prison, the defendant mailed letters in October and November 2012 requesting that charges pending against him in several counties be dismissed. Though some his correspondence related to the Pitt County DWI charge, there was no evidence that the clerk of court or district attorney in Pitt County received these letters. In November 2015, Armistead wrote again to the Pitt County Clerk of Court. The clerk received this letter and notified Armistead’s attorney, who notified the district attorney.  The prosecutor put the DWI case back on the calendar and it was tried in district court on January 28, 2016. The judge found Armistead guilty. Armistead appealed to superior court where he moved to dismiss the charges on the basis that the four-year delay between his arrest and trial violated his right to a speedy trial. The superior court denied the motion. The case proceeded to trial before a jury, and Armistead was again convicted. He again appealed on the basis that he had been denied a speedy trial.

The court of appeals explained that the delay of four years was sufficiently long to trigger its examination of the remaining factors. As for the second factor, the court determined that the State could have avoided the delay in Armistead’s trial by simply searching the DPS database or another database routinely used by prosecutors. Because the State was negligent in its efforts to locate Armistead, the court weighed this factor in Armistead’s favor. The third factor—the defendant’s assertion of his right—was neutral in the court’s view since there was no evidence that Armistead’s correspondence reached the proper court officials or the prosecutor until three years after the first trial date. The court weighed the final factor, prejudice, in the State’s favor as Armistead failed to show that the pending charges affected his classification in prison or deprived him of a defense at trial. After balancing the four factors, the court determined that Armistead’s speedy trial rights had not been violated.

Admission of breath test results. When law enforcement officers obtain breath alcohol concentration results by following the procedures prescribed by statute and administrative regulation, the test results are admissible without the evidentiary foundation that would otherwise be required for such scientific evidence. To benefit from this lowered bar for admissibility, the State must show that the required procedures were followed. One of the requirements is that the test be administered by a person with a current permit issued by the Department of Health and Human Services authorizing the person to perform a breath test on the instrument that was used. G.S. 20-139.1(b)(2). Amendments to the DWI laws enacted in 2006 require courts to take judicial notice of the list of permits issued to the person who conducted the test, the type of instrument on which the person is authorized to perform tests, and the date the permit was issued. Id.

State v. Squirewell. Anthony Squirewell II was charged with habitual impaired driving. At trial, the state trooper who administered Squirewell’s breath test testified that he was certified to conduct breath tests on the instrument used to test Squirewell. He did not specifically state that he was certified at the time Squirewell’s test was performed. Squirewell argued at trial and on appeal that this testimony was insufficient to provide an adequate foundation for introduction of the breath test results. The trial court and the court of appeals rejected Squirewell’s argument.

Perhaps because the trial court did not take judicial notice of the trooper’s permit, the court of appeals did not rely upon the statutory judicial notice requirement. Instead, it cited older cases that list three ways in which the State can prove the test administrator had a permit: (1) by stipulation; (2) by offering the permit; or (3) by presenting other evidence.  The court then considered whether the trooper’s testimony in Squirewell’s case was adequate to show that he had a permit.  Although the trooper did not explicitly state that he had a DHHS permit on the day he conducted defendant’s breath test, the court held that his testimony that he was certified and that he carried out the test according to the Department’s procedures was adequate to lay the necessary foundation for the admission of chemical analysis results.

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Should Judges Get Special License Plates?

www.kisslinglaw.com

11/3/17

Two days ago I was in the office of an assistant district attorney who was a former magistrate judge.  I saw a license plate similar to the one above on his wall and had no idea what it was for.  I though it had something to do with Michael Jordan.  My question to him was why do judges have special license plates.  Off the cuff, he said, “so we do not get pulled over by police.”  This did not shock me.  I cannot think of any other legitimate reason for judges to have special license plates.  I did a little research and came across the article below from NY where they looked into whether or not it was ethical.  Of course the state bar came to the wrong conclusion.  See below.

A state commission looking at whether judicial license plates help judges dodge parking and traffic tickets declared Wednesday there was no problem.

But one of the panel’s own members slammed the report as “an exercise in evasion.”

“The failure of our report to confront the issue head on ... betrays a pragmatic queasiness with the possibility of withdrawing an established, longstanding perk for the judiciary," wrote veteran attorney Richard Emery, a member of the Commission on Judicial Conduct. "Public confidence will further erode if we exempt our judges from equal application of the law — no matter how minor."

The commission started probing the issue in August after an upstate judge — who served in the Office of Court Administration advising judges on ethics — helped fix a ticket for herself and for the wife of another judge.

At the time, the commission declared the possible abuse of judicial license plates to dodge parking and traffic tickets was potentially pervasive.

The commission also noted it had "repeatedly" looked at cases where judicial plates inspired cops to deep-six parking and traffic violations for judges.

But Wednesday's 14-page report said such plates were not a problem.

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State records show 2,265 state, local and federal judges use the specially marked plates on their private vehicles.

The 10-member commission issued a finding that declared judicial plates "do not create an appearance of impropriety."

Four commission members are judges, two of whom have judicial plates.

The toughest recommendation in the report was to order the Office of Court Administration to put the issue on the agenda of training programs for judges.

Even the report itself made clear the commission keeps running into this issue: "Over the years in the course of investigating other complaints of ticket-fixing, the Commission has been advised by law enforcement officers in various parts of the state that at times they have declined to issue tickets to motorists whom they stopped for speeding, once they realized by virtue of license plates that the drivers were judges."

Emery blasted the findings, citing numerous cases of judges fixing or trying to fix tickets, and even of one judge being driven home by cops to avoid a drunk-driving charges instead of being arrested.

"Though judges are unequivocally prohibited from using their judicial status to obtain special treatment for themselves, their families or friends, they are legislatively authorized to flaunt their judicial status on their personal vehicles wherever they go," he wrote. "This schizophrenic message inevitably leads to bizarre scenarios involving special treatment being afforded and accepted by judges."

Thanks to the NY Daily News for the article

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Teen Auto Accidents

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Studies show that the teen accident rate remains significant.  This remains so even with graduated drivers licenses and driving schools.  Here are some of the statistics.

Basic Facts About Teen Crashes

General Statistics on Teen Crashes

Motor vehicle crashes are the leading cause of death for U.S. teens. In 2013, 2,163 teens in the United States ages 16-19 were killed and 243,243 were treated in emergency departments for injuries suffered in motor vehicle crashes. That means six teens ages 16-19 died every day as a result of motor vehicle crashes. 1

The risk of motor vehicle crashes is higher among 16-19-year-olds than among any other age group. In fact, per mile driven, teen drivers ages 16 to 19 are nearly three times more likely than drivers aged 20 and older to be in a fatal crash.2  

The overwhelming majority (75 percent) of serious teen driver crashes are due to "critical errors," with the three common errors accounting for nearly half of these crashes: 3

The majority of newly licensed teen drivers exit the learner period with significant skill deficits, leading to a much higher risk of crashing compared with more experienced drivers. The most common types of crashes involve left turns, rear-end events, and running off the road. 4

Distraction was a key factor in 58 percent of crashes involving drivers ages 16 to 19, according to an analysis of video footage of 1,691 moderate-to-severe crashes 6 seconds before they occurred.5

Head trauma affects millions of Americans each year and has significant morbidity and economic costs to society. In 2011, traffic-related head trauma accounted for an estimated 1.82 million visits to Emergency Departments.6

lack of scanning that is needed to detect and respond to hazards

going too fast for road conditions (e.g., driving too fast to respond to others or to successfully navigate a curve)

being distracted by something inside or outside of the vehicle  

  Here are more shocking statistics concerning teenage drivers:

Teen Drivers, Cell Phones, and Texting

32.8% of high school students nationwide have texted or e-mailed while driving.

12% of distracted drivers involved in fatal car accidents were teens ages 15 to 19.

Talking on a cell phone can double the likelihood of an accident and can slow a young driver's reaction time to that of a 70-year-old.

Drivers under the age of 20 make up the largest percentage of distracted drivers.

56% of teens admit to talking on cell phones while driving.

13% of teens admit to texting while driving.

34% of teens age 16 and 17 admit that they send and respond to text messages while driving.

48% of kids ages 12 to 17 report being in a car when the driver was texting.

Underage Drinking & Driving Statistics

About 1/4 of fatal teen car accidents involve underage drinking and driving. (MADD)

About 5.8% of 16- and 17-year-olds and 15.1% of 18- to 20-year-olds reported driving under the influence of alcohol in the past year. (MADD)

About 8.2% of high school students reported driving a car or other vehicle one or more times when they had been drinking alcohol.

13.5% of 12th graders reported driving after drinking.

Kids who start drinking young are 7x more likely to be in an alcohol-related crash. (MADD)

33% of the young drivers ages 15 to 20 who were killed in crashes had a BAC of .01 or higher and 28% had a BAC of .08 or higher (the legal limit for drivers over age 21).

Nearly 60% of young drivers involved in fatal drinking and driving crashes didn't use a seat belt.

70 % of young drivers who died in underage drinking and driving accidents didn't use a seat belt.

27% of the young male drivers involved in fatal crashes had been drinking at the time of the crash, compared with 15% of the young female drivers involved in fatal crashes.

2013 Teen Driver Car Accident Statistics

There were 2,524 motor vehicle related deaths among teens.

120 of these deaths were motorcycle related.

10% of teenage driver deaths were the result of distracted driving.

There was an 11% decrease from 2012 to 2013 in teen motor vehicle accidents.

Only 55% of highschool students reported that they always wear a seatbelt.

22% of teens admitted that they had ridden with a driver that had been drinking alcohol.

An estimated 8 teens died per day in car accidents.

June had the highest amount of accident deaths in teens, resulting in 260 fatalities.

54% of car crash deaths in teens occured on either Friday (405), Saturday (524), or Sunday (437).

Most teenage motor vehicle crash deaths occured between 6 p.m. to 9 p.m.

2012 Teen Driver Car Accident Statistics

There were 2,823 motor vehicle accidents among people age 13- to 19-years-old.

2,228 teenagers died in motor vehicle accidents in 2012.

Of all motor vehicle crash deaths, teenagers accounted for 8%.

In the first part of 2012, 240 16- and 17-year-old drivers died in car accidents.

Overall, 16- and 17-year-old driver deaths increased 19 percent from 2011.

Compared to all other days of the week, the most teen driving fatalities occurred on Sunday.

2011 Teen Driver Car Accident Statistics  

7.7% of students rarely or never wore a seat belt when riding in a car driven by someone else.

Only 54% of high school students reported they always wear a seat belt when riding with someone else.

More male (8.9%) than female (6.3%) students didn't wear a seat belt.

32.8% of high school students nationwide texted or e-mailed while driving.

2010 Teen Driver Car Accident Statistics  

pedestrians (9%)

motorcyclists (4%)

bicyclists (2%)

riders of all-terrain vehicles (2%)

people in other kinds of vehicles (2%)

2009 Teen Driver Car Accident Statistics

3,214 teens ages 15 to 19 were killed in car accidents.

196,000 teens were injured.

Young drivers between 15- and 20-years-old accounted for 6.4% (13.3 million) of total drivers on the road.

11% of the drivers involved in fatal crashes were between the ages of 15 and 20.

There were 3,589 male drivers involved in fatal crashes, as opposed to 1,558 female drivers. Also, there were 1,682 male driver fatalities, as opposed to 654 female fatalities.

Of the 5,148 young drivers involved in fatal crashes, nearly 20% had previous speeding convictions. More than 950 had been convicted previously with other harmful or moving offenses.

33% of young drivers ages 15 to 20 killed in crashes had a BAC of .01 or higher and 28% had a BAC of .08 or higher.

60% of young drivers involved in fatal crashes who were drinking didn't use a seat belt. Of the young drivers who were drinking and died in accidents, 70% didn't use a seat belt.

2009 Teen Motorcycle Accident Statistics

In 2009, 205 young motorcyclists (ages 15 to 20) were killed, and an additional 5,000 were injured.

Of the young motorcycle riders who were fatally injured, 26% were not wearing helmets.

Of the young motorcycle riders who were fatally injured, 39% were either unlicensed or driving with one that wasn't valid.

2008 Teen Driver Car Accident Statistics

36.9% of people killed in young driver crashes were the young drivers themselves

31.4% were passengers of young drivers

24.4% were occupants of other vehicles

7.0% were non-motorists.

112 of the deaths were young drivers themselves.

64 of the deaths were passengers of young drivers.

52 were occupants of other vehicles involved in the crashes.

14 of the deaths were non-occupants.

2008 Teen Motorcycle Accident Statistics

During 2008, 346 young motorcycle riders (age 15-20) were killed and an additional 8,000 were injured.

35% of the bikers between 15 and 20 who were fatally injured in crashes in 2008 were not wearing helmets.

Of the young bikers involved in fatal crashes in 2008, 43% were either unlicensed or driving with an invalid license.

In 2008, 26% of young male motorcycle riders involved in fatal crashes had been drinking at the time of the crash, compared to 13% of young female riders.

Among bikers ages 16-19 involved in fatal crashes in 2008, 49% were involved in single-vehicle crashes.

2007 Teen Driver Car Accident Statistics

36.9% of people killed in car accidents involving teen drivers were the young drivers themselves.

31.4% were passengers.

24.4% were occupants of other vehicles.

7% were non-motorists.

2006 Teen Driver Car Accident Statistics

14% of motor vehicle deaths among all ages

7% of pedestrian deaths

4% of motorcyclist deaths

10% of bicyclist deaths

2005 Teen Driver Car Accident Statistics

Car accidents were the leading cause of death among 13- to 19-year-old males and females in the United States. 33% of deaths among 13 to 19 year olds occurred in car accidents.

Almost 400,000 teenagers in auto accidents sustained injuries serious enough to require emergency treatment.

16 to 19 year olds are at the highest risk to be involved in a car accident. This age group is 4x more likely than older drivers to crash.

Teenage male drivers and passengers were more than 1.5x more likely than their female peers to be involved in a fatal car crash.

Of male drivers between the ages of 15 and 20 who were involved in a fatal crash, 38% were speeding and 24% had consumed alcohol.

A 2005 national survey found nearly 30% of teens had ridden with a driver who had consumed alcohol within the previous month. 1 in 10 reported driving after drinking alcohol within the same period.

Among teen drivers killed in car accidents after drinking and driving, 74% weren't wearing seat belts.

Half of the teen deaths from car accidents occurred between 3 p.m. and midnight. 54% occurred on a Friday, Saturday, or Sunday.

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As you may be able to tell, I am on a kick about passing stopped school buses.  My question is why are the consequences so high.  In North Carolina, passing a stopped school bus carries $180 in court costs, $500 fine and is a misdemeanor.  According to the below article, there is less than one child killed each year in North Carolina due to passing a stopped school bus.  On the other side, according to state DMV records, there are on average over 80 teen fatalities each year.  Shouldn’t the legislature be more concerned about the 80 than the one?

Article 1

Every school day in North Carolina, drivers pass stopped school buses, violating state laws requiring drivers to yield when a bus’s stop arm is extended.

“Over 3,000 cars per day in North Carolina pass a stopped school bus illegally while it’s stopped to pick up kids,” said Derek Graham, section chief of transportation services at the N.C. Department of Public Instruction.

Data provided by DPI indicates that 3,153 vehicles passed stopped school buses on March 26. There were 13,323 school buses on North Carolina roadways on that single day, and with more than 800,000 kids in the state relying on these buses, the danger is very real.

“The biggest safety problem for kids is not on the school bus itself — that’s the safest way to get to and from school — it’s getting on and off the bus,” Graham said.

Click Here for a map showing stop arm violations in each county Since 1999, 13 children have died simply trying to get to and from school. One of those children was 7-year-old Alyiah Morgan, of Harrells, who in April 2013 was hit by a truck along Highway 421.

Alyiah was getting off her school bus — its lights were flashing and the stop sign was out — when the Highway Patrol said a log truck went past stop sign and hit her. She died on the way to the hospital.

“She was tomboy when she wanted to be a tomboy, a princess when she wanted to be a princess,” her aunt Rosabell Martinez described.

She said memories of Alyiah’s contagious smile and her eyes that could light up a room are things that she keeps close to her heart.

“It’s terrible you have to lose somebody you love for something so senseless — that this person was in a rush or that person wasn’t paying attention,” Martinez said.

The driver in the case, Johnny Allen Spell, was charged with involuntary manslaughter and driving while impaired. He is currently in prison.

The Rules

Cases like Alyiah’s are far too common, and with new technology the proof is undeniable. A pilot program funded by the state has equipped more than 400 buses with new camera systems.

Now, surveillance videos show what the state’s bus drivers have seen for years.

“The cameras are rolling at every bus stop,” Graham said.

Still, the program is limited in scope. The N.C. Department of Public Instruction reports that Wake County, for example, has 928 buses, but only two with stop-arm cameras. Durham County has 260 buses and three with the cameras, while Cumberland County has 444 buses and only two with cameras.

Link: Buses with stop-arm cameras by North Carolina school district Those cameras catch images of the car, the driver and the license plate — a task that used to be left up to the bus driver.

Bus driver Cooper often has his bus passed while stopped “I blow my horn or something like that to try and get their attention. but they already flew by,” said Thomas Cooper, who has been behind the wheel of a school bus for 4 years.

“A lot of times the places we have to stop, they have to cross the street,” he added. “I’ve got to constantly keep my eye out on the child and the traffic.”

Under North Carolina law, G.S. 20-217, drivers going either direction must stop when a school bus is stopped to let children off unless it is on a four or more lane highway divided by a median or a four or more lane road with a center turning lane. Drivers are not supposed to continue until the bus has completed dropping the children off and begun to move again.

The cue is the bus’s lights. The bus will first flash yellow lights indicting it is about to stop.

But Graham said many drivers have the view that yellow means to speed up to get through.

“Yellow means caution,” Graham said. “On a school bus, that’s where you have to be cautious because there are kids around.”

Children Often Aren’t Watching

Of course, children aren’t necessarily watching for cars, which is one reason North Carolina has strict laws to protect children.

WNCN Investigates took cameras out to see what happened when school buses stopped for students, and it only took minutes to find violators.

On Aug. 19, WNCN followed a school bus in Cary. At the first stop, a white convertible zoomed by as the bus opened its doors, completely ignoring the flashing stop arm on the bus.

That’s no surprise to those like Martinez, who has seen what can be horrible consequences.

“Even if it’s not your child, you should be thinking about someone else’s child,” Martinez said.

“We’d love to have the situation where the cameras are not even needed because people are doing what they are supposed to do,” Graham said. “Until that happens, we’re going to take the evidence off these cameras to make sure the motoring public either pays attention or pays up.”

For Martinez, it’s a call for stricter laws, and since 2001 lawmakers have been working on doing just that.

The latest changes came in 2012.

“It was increased to $500, it’s five points on your driver’s license, and it gets even worse if you were to strike or kill a child. We’re talking felonies,” Graham said.

Drivers who are convicted of passing school bus face a $500 fine, a hefty five points on their driver’s record and are not eligible for a prayer for judgment.

A driver who passes a stopped school bus and hits someone will face a Class I felony and a minimum of $1,000. The penalty rises to a Class H felony and fine of $2,500 if someone is killed.

Solving the Problem

So what are the solutions? Part of it is making sure children are paying attention as they cross.

“No earbuds, no texting while crossing the street — parents and students alike,” Graham said.

Although for little kids, it’s not always easy. WNCN’s cameras also saw children darting across the street without a single glance.

“A lot of times they’re sleepy, they want to eat — all type of situations like this,” said Cooper, the bus driver.

Martinez, the aunt of Alyiah Morgan, urges drivers to be careful “Our kids can’t see around that school bus,” added Martinez. “Who is that other person who’s going to help our child get from one end to the other end?”

Bus drivers and parents must help guide students when it’s safe to cross.

“Put an extra person on the bus. Have a monitor,” she added.

It’s Alyiah’s story that pushes Martinez to call for change.

“I challenge every single person that has a driver’s license to watch for these babies, because you could prevent what we’re going through,” she explained. “Let’s make changes to save somebody else’s child.”

Chart 1

https://connect.ncdot.gov/business/DMV/DMV%20Documents/2015%20Crash%20Facts.pdf

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New Fees for DMV Hearings

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Starting January 1, 2018, there will be new fees for hearings at the DMV for license revocations ranging from $40 to $450.  Below are the new rules and fees.  My question is the following. First, what are we going to do with the tax dollars that were being used to pay for these hearings before these fees.  Secondly, if there is a fee for everything now, what are my tax dollars being used for?

TITLE 19A – DEPARTMENT OF TRANSPORTATION Rulemaking Agency:   Department of Transportation/Division of Motor Vehicles Codifier of Rules received for publication the following notice and proposed temporary rule(s) on: September 1, 2017 Rule Citations:  19A NCAC 03K .0101, .0102 Public Hearing: Date:  September 25, 2017 Time:   6:00 p.m. Location:  John Chavis Media Center, 505 Martin Luther King Jr. Blvd, Raleigh, NC  Reason:  The North Carolina Department of Transportation Division of Motor Vehicles has determined that temporary rulemaking to adopt 19A NCAC 03K .0101 and .0102 is necessary due to a change in the applicable state statutes.   On June 28, 2017, the North Carolina General Assembly approved Session Law 2017-57 "Appropriations Act of 2017" for the 2016/2017 fiscal year.  In Section 34.32.(b) the agency is directed to begin collecting fees for administrative hearings beginning January 1, 2018.  In Section 34.32.(c), the Division of Motor Vehicles is authorized to adopt temporary rules to implement the provisions.   In order to be able to establish the fees rates, set up the system for collecting the fees per the established rates, and notify individuals requesting administrative hearings after January 1, 2018 that there will be a fee for scheduling the hearing, the agency needs to utilize the option for adopting temporary rules. Comment Procedures:Comments from the public shall be directed to: Helen Landi, 1501 Mail Service Center, Raleigh, NC 27699-1501, email [email protected].  The comment period begins September 11, 2017 and ends October 3, 2017. SUBCHAPTER 03K – DIVISION HEARING FEES 19A NCAC 03K .0101   ASSESSMENT OF ADMINISTRATIVE HEARING FEES (a)  The Division shall provide notice to the applicant of a right to an administrative hearing, the procedure for requesting a hearing, the applicable fee for a hearing, and statutory deadline, if any, to timely request a hearing. (b)  The fee for each type of hearing provided by the Division shall be set forth in 19A NCAC 03K .0102. (c)  A hearing request shall be submitted in writing and shall include the applicable fee listed in the Division's notice to the applicant as listed in Paragraph (a) of this Rule. A request for hearing will neither be accepted by the Division nor be considered received within any required deadline noticed to the applicant under Paragraph (a) of this Rule if the hearing request does not include the applicable hearing fee, except as provided under Paragraph (j) of this Rule. (d)  The Division shall take no action on the request or hearing until the required fee is paid in full, except for the following hearings that are scheduled by the Division due to the nature of the alleged offense, charge, or violation: (1)    A hearing conducted to review an applicant's compliance with the requirements and obligations of the Ignition Interlock Program when the applicant is licensed pursuant to a conditional restoration agreement with the Division. (2)    A hearing conducted to determine the applicant's compliance with the requirements and obligations of the applicant's probation or conditional restoration agreement with the Division. (3)    Hearings related to violations of an alcohol concentration restriction conducted if the alleged violation was received on a report from an ignition interlock service provider. (4)    Motor vehicle dealer license or sales representative license hearings conducted pursuant to G.S. 20-296 in which the hearing relates to a previously-issued license. If the Division takes no adverse action at a hearing listed in this Paragraph, the Division shall not charge a hearing fee to the applicant. If adverse action is taken by the Division following the hearing, the applicant shall pay the required hearing fee set forth in 19A NCAC 03K .0102. This hearing fee shall be paid no later than 30 calendar days after the date the hearing is held or the decision is issued by the Division, whichever is later. An applicant who fails to pay the hearing fee within the required 30 day period shall be considered past due and subject to the provisions of Article 6B of Chapter 147.(e)  Upon receipt of a written hearing request and the full payment for the required hearing fee, within any deadline, if any, noticed under Paragraph (a) of this Rule, the Division shall send the applicant written notice of the scheduled hearing, including the time, date, and location of the hearing and notice of the time period for an applicant to cancel a hearing request in order to receive a partial refund under Paragraph (g) of this Rule. (f)  The Division shall cancel any hearing upon notification that a hearing fee payment has been returned to the Division due to insufficient funds from the applicant's financial institution. A notice of the hearing cancellation shall be sent to the applicant. Upon cancellation, any pending adverse action against the applicant previously stayed as part of the hearing process shall be placed into effect by the Division five days after date of notice is mailed per G.S. 20-48. (g)  A hearing fee shall be non-refundable unless the Division receives a written notice from the applicant seeking to cancel the hearing postmarked at least 10 business days prior to the scheduled hearing date, except as listed in Paragraph (h) of this Rule. The hearing fee, less a processing fee listed in Paragraph (m) of this Rule, will be refunded. An applicant's notice to cancel a hearing shall be mailed to: Division of Motor Vehicles, Attn: Administrative Support Unit, 3118 Mail Service Center, Raleigh, NC 27699-3118. Any notice tocancel a hearing postmarked less than 10 business days prior the hearing shall cancel the previously scheduled hearing and the applicant shall not be eligible for a refund of the hearing fee. (h)  A hearing fee paid pursuant to 19A NCAC 03K .0102 (a)(17) shall be non-refundable. (i)  The Division may waive the administrative a hearing fee when an applicant is indigent. An applicant seeking relief as indigent from an administrative hearing shall submit a completed and notarized Affidavit of Indigence as prescribed by the Division. The applicant may obtain a copy of the Affidavit of Indigence from the Division's website (www.ncdot.gov/dmv/). A written hearing request that includes a completed and affirmed Affidavit of Indigence that is received by the Division within the deadline noticed under Paragraph (a) of this Rule is considered a timely request for hearing. An applicant may face criminal and/or civil penalties for submitting a false affidavit. (j)  Upon receipt of the Affidavit of Indigence, the Division shall determine whether the applicant is eligible for a waiver of the hearing fee required under Paragraph (c) of this Rule. (k)  Criteria the Affidavit of Indigence, the Division shall utilize the current Federal Poverty Level Guidelines, to qualify an applicant's eligibility for waiver of the hearing fee. The applicant with income below 150 percent of the Federal Poverty Level shall receive a waiver of the hearing fee under Paragraph (c) of this Rule. The terms "household size," and "household income," are defined with reference by the Federal Income Tax Code (U.S. Code Title 26) and U.S. Treasury Regulations. The waiver criteria are: (1)    household size; and (2)    household income. The Division may request documentation from the applicant if such is necessary for the Division to qualify the applicant's eligibility for a waiver of the hearing fee. The applicant has five calendar days to comply with the request for additional documentation. Failure to comply with the request for additional documentation will result in a denial for the applicant's request for a waiver on the hearing fees. (l)  After the Division's review of an applicant's Affidavit of Indigence, the Division shall proceed as follows: (1)    If the Division finds the applicant is qualified for a waiver of the hearing fee pursuant to the Affidavit of Indigence, the Division shall proceed with the hearing as if the required hearing fee had been paid. The Division shall send the notice listed in Paragraph (e) of this Rule. (2)    If the Division finds that the applicant is not qualified for a waiver of the hearing fee, the Division shall notify the applicant of this determination. This notification shall also include: (A)    Notice of the amount of the hearing fee owed by the applicant to proceed with the requested hearing; (B)    A date upon which the applicant shall submit the required hearing fee to the Division, and such date shall not be less than 10 calendar days from the date of the notification; (C)    Notice that if such hearing fee is not received by the Division by the noticed date, the written request for hearing pursuant to Paragraph (c) of this Rule will be considered withdrawn; and (D)    Notice that any pending action by the Division upon which the applicant requested a hearing shall be placed into effect if such hearing fee is not paid by the noticed date. An applicant's failure to pay the hearing fee by the date contained in the notification letter will be considered a withdrawal of the request for a hearing. (m)  The Division shall retain a sum of fifty dollars ($50.00) to process all hearing requests set forth in 19A NCAC 03K .0102, except for hearings listed under 19A NCAC 03K .0102(a)(2) and (a)(16), for which the Division shall retain twenty dollars ($20.00). Authority G.S. 20-16; 20-17; 20-31; S.L. 2014-100, s. 34.9; S.L. 2015-241 s. 29.30A; S.L. 2017-57, s 34.32(a),(b),(c),(d). 19A NCAC 03K .0102   ADMINISTRATIVE HEARING FEE SCHEDULE (a)  The Division shall assess the following administrative hearing fees, pursuant to Rule .0101 of this Subchapter: (1)    sixty dollars ($60.00) for a hearing related to a lapse in financial responsibility conducted pursuant G.S. 20-316; (2)    forty dollars ($40.00) for a conference to determine the applicant's eligibility to attend drive improvement clinic as provided by G.S. 20-16; (3)    seventy-five dollars ($75.00) for an ignition interlock mouth contaminant review to determine compliance with the requirements of the Ignition Interlock Program and of a conditional restoration agreement with the Division; (4)    seventy dollars ($70.00) for ignition interlock medical accommodation reviews; (5)    one hundred dollars ($100.00) for all other license suspension or revocation hearings not listed in Subparagraphs (6) through (12) of this Paragraph to include hearings held pursuant to G.S. 20-13 and G.S. 20-16; (6)    four hundred fifty dollars ($450.00) for hearings conducted for violations of an alcohol concentration restriction (ACR), violation of an ignition interlock device restriction, or refusal to submit to a chemical analysis; (7)    two hundred dollars ($200.00) for a financial responsibility hearing conducted pursuant to the provisions of the Motor Vehicle Safety-Responsibility Act of 1953; (8)    two hundred dollars ($200.00) for a hearing related to a commercial driver license (CDL) disqualification; (9)    two hundred dollars ($200.00) for a restoration hearing related to a license suspension due to driving while license revoked or moving violation; (10)   two hundred twenty five dollars ($225.00) for an interview held prior to a license restoration hearing in situations involving alcohol-related convictions, suspensions, or revocations; (11)   four hundred twenty-five dollars ($425.00) for a license restoration hearing related to driving while impaired (DWI) conducted pursuant to G.S. 20-19; (12)   two hundred twenty dollars ($220.00) for hearings conducted to determine compliance with the requirements of probation or restoration agreement with the Division; (13)   two hundred dollars ($200.00) for a motor vehicle dealer license or salesman license hearing conducted pursuant to G.S. 20-295 and G.S. 20-296; (14)   two hundred dollars ($200.00) for a mechanic license or inspection station license hearing conducted pursuant to G.S. 20-183.8G; (15)   two hundred dollars ($200.00) for a commercial driver training school hearing; (16)   fifty dollars ($50.00) for a hearing related to the denial of a service offered by the Division; and (17)   a filing fee in the amount of one thousand two hundred dollars ($1,200) shall be due from the party initiating an action which must be filed with the Commissioner of Motor Vehicles pursuant to G.S. 20-308.1. In addition to the filing fee, each party that files a motion in the case shall be assessed a fee of six hundred dollars ($600.00) per motion that shall be payable at the time the motion is filed. (b)  No fees shall be charged for medical evaluation hearings or competency hearings conducted pursuant to G.S. 20-9(g)(4) or G.S. 20-17.1. Authority S.L. 2014-100, s. 34.9; S.L. 2015-241 s. 29.30A; S.L. 2017-57, s 34.32(a),(b),(c),(d)

[trafficticketskissling]

Will Defects on Face of Ticket get you a Dismissal

www.kisslinglaw.com

In a lot of states, you can get a traffic ticket dismissed is there are any mistakes on the face of the ticket.  No so in North Carolina.  Here is a great article from the NC School of Government on the issue.

Last year, the court of appeals ruled that a citation that failed to allege an essential element of an offense was sufficient to serve as the State’s pleading. The court concluded that “the standard for issuance of an indictment [which must allege every essential element of an offense to be valid] is not precisely the same as [for] a citation,” and under the more relaxed standard, the citation adequately identified the offense even though it failed to allege an essential element. State v. Allen, __ N.C. App. __, 783 S.E.2d 799 (2016) (an officer cited a motorist for an open container violation, but failed to allege that the container was in the passenger compartment of the defendant’s vehicle; more information about Allen is here).

Last week, a divided panel of the same court ruled that a citation that failed to allege multiple elements of an offense was sufficient. The new opinion raises questions about just how low the bar is for citations, and perhaps for other district court pleadings as well.

The new case is State v. Jones.

Facts. The case began when a Raleigh officer stopped a vehicle for speeding. The driver wasn’t impaired, but did have an open can of cold beer in the car. The officer issued a citation that read in part as follows:

The officer named below has probable cause to believe that on or about Sunday, the 04 day of January, 2015 at 10:16PM in [Wake] [C]ounty . . . [Defendant] did unlawfully and willfully OPERATE A MOTOR VEHICLE ON A STREET OR HIGHWAY AT A SPEED OF 62 MPH IN A 45 MPH ZONE. (G.S. 20-141(J1)

and on or about Sunday, the 04 day of January, 2015 at 10:16PM in [Wake] [C]ounty . . . [Defendant] did unlawfully and willfully WITH AN OPEN CONTAINER OF ALCOHOLIC BEVERAGE AFTER DRINKING. (G.S. 20-138.7(A))[.]

Procedural history. The defendant was convicted on both counts in district court and appealed for trial de novo in superior court. A jury acquitted him of speeding but convicted him of the open container violation. He appealed again to the appellate division, arguing that the charging language for the open container charge was defective. He contended that the language omits (1) any allegation that he drove or operated a motor vehicle on a public street or highway, and (2) any allegation that the open container was in the passenger area of his vehicle.

Majority opinion. Judge Berger, joined by Judge Dillon, concluded that the citation was sufficient. The majority reasoned that a citation must only “[i]dentify the crime charged,” G.S. 15A-302(c); that the official commentary to article 49 of chapter 15A of the General Statutes states that this is “less than is required” for other forms of criminal process, because a citation “will be prepared by an officer on the scene”; and that a defendant who wants a more technical statement of the offense has a right to object to trial on a citation and thereby to require the State to file a statement of charges or to obtain a summons or an arrest warrant, G.S. 15A-922(c).

Applying these principles to the citation at issue, the majority stated:

The citation properly identified the crime of having an open container of alcohol in the car while alcohol remained in [the defendant’s] system . . . by citing [G.S.] 20-138.7(a) and stating Defendant had an open container of alcohol after drinking. Identifying a crime charged does not require a hyper-technical assertion of each element of an offense.

Dissent. Judge Zachary dissented. In her view, (1) a citation is a criminal pleading, G.S. 15A-921; (2) a pleading must “asserts facts supporting every element of a criminal offense,” G.S. 15A-924(a)(5); and (3) the citation at issue failed to allege multiple essential elements and so was fatally defective. As to the majority’s conclusion that the citations are held to a lower standard than other charging documents, Judge Zachary contended that the relaxed standard applies to the use of a citation as a criminal process that requires the defendant to come to court, but not to the use of a citation as a criminal pleading that formally charges the defendant with an offense.

Analysis. Both the majority opinion and the dissent in Jones are thoughtful and detailed. Given the dissent, I would be surprised if the defendant did not exercise his right to have the state supreme court review the matter.

If there is no further appeal, or if Jones is affirmed, two principal questions will arise:

Just how low is the bar for citations? When does charging language fail to “identify” the offense charged? The majority in Jones seemed to rely in part on the fact that the correct statutory citation accompanied the charging language. Will the inclusion of a correct statutory citation cure any and all defects with a citation? Could a statutory citation be sufficient by itself to identify an offense, even without any charging text?

Is there any impact on other district court pleadings? Most of the reasoning in Jones is specific to citations. Only citations are prepared by an officer in the field and a defendant’s right to object to being tried on a citation does not extend to other types of pleadings. But the last several pages of the majority opinion explores what seems to be an alternative holding that even if the citation were defective, “the [citation’s] failure to comply with [G.S.] 15A-924(a)(5) by neglecting to allege facts supporting every element of an offense in a citation is not a jurisdictional defect” that may be raised at any time.  The majority’s argument seems to be that while a proper indictment is required for the superior court to have jurisdiction over a felony, district court matters do not have the same jurisdictional prerequisite. Candidly, I am not sure that I fully grasp this section of the opinion, but the court appears to be drawing a distinction between misdemeanors and felonies, not between citations and other pleadings. Therefore, its reasoning may apply to other district court pleadings, and may impact the remedy available when pleading defects are identified.

I didn’t quickly find numerous cases from other states addressing similar issues, but I did find one. In State v. Leach, 782 P.2d 552 (Wash. 1989) (en banc), the Supreme Court of Washington held that while most criminal charging documents must allege every element of a charged offense, citations need not do so as long as they describe the offense generally and provide a citation to the pertinent statute. As did the majority in Jones, the court emphasized that citations are normally prepared at the scene by law enforcement officers.

[trafficticketskissling]

HABITUAL DWI CAN GET LICENSE

www.kisslinglaw.com

New legislation on Habitual DWI and comments from Shea Denning at the NC SOG.

GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 2017

SESSION LAW 2017-176

SENATE BILL 384

AN ACT to AMEND THE LAW REGARDING THE USE OF MOTIONS FOR APPROPRIATE RELIEF; to clarify the definition of "felony offense" for purposes of the habitual felon law and to remove the sunset on drivers license eligibility for persons convicted of habitual impaired driving; to include breaking and entering with the intent to terrorize as a habitual breaking and entering status offense; to clarify that when a person is charged with an offense which requires mandatory fingerprinting, fingerprinting will be ordered by the court if the offender was not arrested and fingerprinted at the time of the offense; to provide that a private citizen's showing of probable cause to the magistrate shall include sufficient information supported by oath OR AFFIRMATION that a crime has occurred and shall issue as a summons unless a substantial LIKELIHOOD exists that the defendant will not RESPOND to a SUMMONS; AND TO AMEND THE SHERIFF'S SUPPLEMENTAL PENSION FUND.

The General Assembly of North Carolina enacts:

PART I. MOTIONS FOR APPROPRIATE RELIEF

SECTION 1.(a)  G.S. 15A‑1413(d) reads as rewritten:

"(d)      All motions for appropriate relief filed in superior court shall, when filed, be referred to the senior resident superior court judge, who shall assign the motion as provided by this section for review and administrative action, including, as may be appropriate, dismissal, calendaring for hearing, entry of a scheduling order for subsequent events in the case, including disclosure of expert witness information described in G.S. 15A‑903(a)(2) and G.S. 15A‑905(c)(2) for expert witnesses reasonably expected to be called at a hearing on the motion, or other appropriate actions.

All motions for appropriate relief filed in district court shall, when filed, be referred to the chief district court judge, who shall assign the motion as provided by this section for review and administrative action, including, as may be appropriate, dismissal, calendaring for hearing, entry of a scheduling order for subsequent events in the case, or other appropriate actions."

SECTION 1.(b)  G.S. 15A‑1420(b1) reads as rewritten:

"§ 15A‑1420.  Motion for appropriate relief; procedure.

…

(b1)      Filing Motion With Clerk. –

(1)        The proceeding shall be commenced by filing with the clerk of superior court of the district wherein the defendant was indicted a motion, with service on the district attorney in noncapital cases, and service on both the district attorney and Attorney General in capital cases.

(2)        The clerk, upon receipt of the motion, shall place the motion on the criminal docket. When a motion is placed on the criminal docket, the clerk shall promptly bring the motion, or a copy of the motion, to the attention of the senior resident superior court judge or chief district court judge, as appropriate, for assignment to the appropriate judge pursuant to G.S. 15A‑1413.

(3)        The judge assigned to the motion shall conduct an initial review of the motion. If the judge determines that all of the claims alleged in the motion are frivolous, the judge shall deny the motion. If the motion presents sufficient information to warrant a hearing or the interests of justice so require, the judge shall appoint counsel for an indigent defendant who is not represented by counsel. Counsel so appointed shall review the motion filed by the petitioner and either adopt the motion or file an amended motion. After postconviction counsel files an initial or amended motion, or a determination is made that the petitioner is proceeding without counsel, the judge may direct the State to file an answer. Should the State contend that as a matter of law the defendant is not entitled to the relief sought, the State may request leave to file a limited answer so alleging."

SECTION 1.(c)  G.S. 7A‑451(a) reads as rewritten:

"§ 7A‑451.  Scope of entitlement.

(a)        An indigent person is entitled to services of counsel in the following actions and proceedings:

(1)        Any case in which imprisonment, or a fine of five hundred dollars ($500.00), or more, is likely to be adjudged;adjudged.

(2)        A hearing on a petition for a writ of habeas corpus under Chapter 17 of the General Statutes;Statutes.

(3)        A motion for appropriate relief under Chapter 15A of the General Statutes if appointment of counsel is authorized by Chapter 15A of the General Statutes and the defendant has been convicted of a felony, has been fined five hundred dollars ($500.00) or more, or has been sentenced to a term of imprisonment;imprisonment.

(4)        A hearing for revocation of probation;probation.

(5)        A hearing in which extradition to another state is sought;sought.

(6)        A proceeding for an inpatient involuntary commitment to a facility under Part 7 of Article 5 of Chapter 122C of the General Statutes, or a proceeding for commitment under Part 8 of Article 5 of Chapter 122C of the General Statutes.

(7)        In any case of execution against the person under Chapter 1, Article 28 of the General Statutes, and in any civil arrest and bail proceeding under Chapter 1, Article 34, of the General Statutes;Statutes.

(8)        In the case of a juvenile, a hearing as a result of which commitment to an institution or transfer to the superior court for trial on a felony charge is possible;possible.

(9)        A hearing for revocation of parole at which the right to counsel is provided in accordance with the provisions of Chapter 148, Article 4, of the General Statutes;Statutes.

(10)      Repealed by Session Laws 2003, c. 13, s. 2(a), effective April 17, 2003, and applicable to all petitions for sterilization pending and orders authorizing sterilization that have not been executed as of April 17, 2003.

(11)      A proceeding for the provision of protective services according to Chapter 108A, Article 6 of the General Statutes;Statutes.

(12)      In the case of a juvenile alleged to be abused, neglected, or dependent under Subchapter I of Chapter 7B of the General Statutes;Statutes.

(13)      A proceeding to find a person incompetent under Subchapter I of Chapter 35A, of the General Statutes;Statutes.

(14)      A proceeding to terminate parental rights where a guardian ad litem is appointed pursuant to G.S. 7B‑1101;G.S. 7B‑1101.

(15)      An action brought pursuant to Article 11 of Chapter 7B of the General Statutes to terminate an indigent person's parental rights.

(16)      A proceeding involving consent for an abortion on an unemancipated minor pursuant to Article 1A, Part 2 of Chapter 90 of the General Statutes. G.S. 7A‑450.1, 7A‑450.2, and 7A‑450.3 shall not apply to this proceeding.

(17)      A proceeding involving limitation on freedom of movement or access pursuant to G.S. 130A‑475 or G.S. 130A‑145.

(18)      A proceeding involving placement into satellite monitoring under Part 5 of Article 27A of Chapter 14 of the General Statutes."

SECTION 1.(d)  This section becomes effective December 1, 2017, and applies to motions for appropriate relief filed on or after that date.

PART II. HABITUAL FELONS/CLARIFY PREVIOUS CONVICTIONS

SECTION 2.(a)  G.S. 14‑7.1 reads as rewritten:

"§ 14‑7.1.  Persons defined as habitual felons.

(a)        Any person who has been convicted of or pled guilty to three felony offenses in any federal court or state court in the United States or combination thereof is declared to be an habitual felon and may be charged as a status offender pursuant to this Article.

(b)        For the purpose of this Article, a felony offense is defined as an to include all of the following:

(1)        An offense which that is a felony under the laws of the State or other sovereign wherein a this State.

(2)        An offense that is a felony under the laws of another state or sovereign that is substantially similar to an offense that is a felony in North Carolina, and to which a plea of guilty was entered, or a conviction was returned regardless of the sentence actually imposed.

(3)        An offense that is a crime under the laws of another state or sovereign that does not classify any crimes as felonies if all of the following apply:

a.         The offense is substantially similar to an offense that is a felony in North Carolina.

b.         The offense may be punishable by imprisonment for more than a year in state prison.

c.         A plea of guilty was entered or a conviction was returned regardless of the sentence actually imposed.

(4)        An offense that is a felony under federal law. Provided, however, that federal offenses relating to the manufacture, possession, sale and kindred offenses involving intoxicating liquors shall not be considered felonies for the purposes of this Article.

(c)        For the purposes of this Article, felonies committed before a person attains the age of 18 years shall not constitute more than one felony. The commission of a second felony shall not fall within the purview of this Article unless it is committed after the conviction of or plea of guilty to the first felony. The commission of a third felony shall not fall within the purview of this Article unless it is committed after the conviction of or plea of guilty to the second felony. Pleas of guilty to or convictions of felony offenses prior to July 6, 1967, shall not be felony offenses within the meaning of this Article. Any felony offense to which a pardon has been extended shall not for the purpose of this Article constitute a felony. The burden of proving such pardon shall rest with the defendant and the State shall not be required to disprove a pardon."

SECTION 2.(b)  Section 7 of S.L. 2009‑369, as amended by Section 61.5 of S.L. 2014‑115, reads as rewritten:

"SECTION 7.  This act becomes effective December 1, 2009, and applies to applications for reinstatement that occur on or after that date. This act expires December 1, 2016."

SECTION 2.(c)  Subsection (a) of this section becomes effective December 1, 2017, and applies to any offense committed on or after that date and that is the principal felony offense for a charge of a status offense of habitual felon. Subsection (b) of this section is retroactively effective December 1, 2016. The remainder of this section is effective when it becomes law. Prosecutions for offenses committed before the effective date of this section are not abated or affected by this section, and the statutes that would be applicable but for this section remain applicable to those prosecutions.

PART III. INCLUDE BREAKING AND ENTERING WITH INTENT TO TERRORIZE IN HABITUAL BREAKING AND ENTERING

SECTION 3.(a)  G.S. 14‑7.25 reads as rewritten:

"§ 14‑7.25.  Definitions.

The following definitions apply in this Article:

(1)        "Breaking and entering." – The term means any of the following felony offenses:

a.         First degree burglary (G.S. 14‑51).

b.         Second degree burglary (G.S. 14‑51).

c.         Breaking out of dwelling house burglary (G.S. 14‑53).

d.         Breaking or entering buildings generally (G.S. 14‑54(a)).

d1.       Breaking or entering with intent to terrorize or injure an occupant of the building (G.S. 14‑54(a1)).

e.         Breaking or entering a building that is a place of religious worship (G.S. 14‑54.1).

f.          Any repealed or superseded offense substantially equivalent to any of the offenses in sub‑subdivision a., b., c., d., or e. of this subdivision.

g.         Any offense committed in another jurisdiction substantially similar to any of the offenses in sub‑subdivision a., b., c., d., or e. of this subdivision.

(2)        "Convicted." – The person has been adjudged guilty of or has entered a plea of guilty or no contest to the offense of breaking and entering.

(3)        "Status offender." – A person who is a habitual breaking and entering status offender as described in G.S. 14‑7.26."

SECTION 3.(b)  This section becomes effective December 1, 2017, and applies to offenses committed on or after that date.

PART IV. FINGERPRINTING UPON ARREST

SECTION 4.(a)  G.S. 15A‑502 is amended by adding a new subsection to read:

"§ 15A‑502.  Photographs and fingerprints.

…

(e)        Fingerprints or photographs taken pursuant to subsection (a), (a1), or (a2) of this section may be forwarded to the State Bureau of Investigation, the Federal Bureau of Investigation, or other law‑enforcement agencies.

(f)        If a person is charged with an offense for which fingerprints are required pursuant to this section but the person is not arrested for that offense, the court before which the charge is pending shall order the defendant to submit to fingerprinting by the Sheriff or other appropriate law enforcement agency at the earliest practical opportunity. If the person fails to appear for fingerprinting as ordered by the court, the sheriff shall so inform the court, and the court may initiate proceedings for criminal contempt against the person pursuant to G.S. 5A‑15, including issue of an order for arrest pursuant to G.S. 5A‑16, if necessary. The defendant shall continue to be subject to the court's order to provide fingerprints until submitted."

SECTION 4.(b)  This section becomes effective December 1, 2017.

PART V. CITIZEN'S WARRANTS

SECTION 5.(a)  G.S. 15A‑304(b) reads as rewritten:

"(b)      When Issued. – A warrant for arrest may be issued, instead of or subsequent to a criminal summons, when it appears to the judicial official that the person named should be taken into custody. Circumstances to be considered in determining whether the person should be taken into custody may include, but are not limited to, failure to appear when previously summoned, facts making it apparent that a person summoned will fail to appear, danger that the person accused will escape, danger that there may be injury to person or property, or the seriousness of the offense.

(1)        Upon a finding of probable cause pursuant to subsection (d) of this section, the issuing official shall issue a criminal summons instead of a warrant, unless the official finds that the accused should be taken into custody. Circumstances to be considered in determining whether the accused should be taken into custody may include, but are not limited to, any of the following:

a.         The accused has a history of failure to appear before the court as required, or there is other evidence that the person is unlikely to appear in response to a summons for the current proceeding.

b.         There is evidence that the accused is likely to escape or otherwise flee the State in order to avoid prosecution for the offense alleged.

c.         There is evidence of imminent danger of harm to persons or property if the accused is not taken into custody.

d.         The location of the accused is not readily discoverable, such that a criminal summons would be unlikely to be served before any court date assigned at the time of issue.

e.         A relevant statute provides that arrest is mandatory for an offense charged.

f.          The seriousness of the offense. However, the fact that the offense charged is a felony shall not, by itself, constitute grounds for the issuance of a warrant.

(2)        Notwithstanding subsection (d) of this section, an official shall only find probable cause based solely on information provided by a person who is not a sworn law enforcement officer if the information is provided by written affidavit. If the finding of probable cause pursuant to subsection (d) of this section is based solely upon the written affidavit of a person who is not a sworn law enforcement officer, the issuing official shall not issue a warrant for arrest and instead shall issue a criminal summons, unless one of the following circumstances exists:

a.         There is corroborating testimony of the facts establishing probable cause from a sworn law enforcement officer or at least one disinterested witness.

b.         The official finds that obtaining investigation of the alleged offense by a law enforcement agency would constitute a substantial burden for the complainant.

c.         The official finds substantial evidence of one or more of the grounds listed in subdivision (1) of this subsection."

SECTION 5.(b)  This section becomes effective December 1, 2017, and applies to warrants issued on or after that date.

PART VI. SHERIFFS' SUPPLEMENTAL PENSION FUND CHANGES

SECTION 6.(a)  G.S. 143‑166.82 reads as rewritten:

"§ 143‑166.82.  Assets.

(a)        On and after July 1, 1985, each Clerk of Superior Court shall remit to the Department of Justice the monthly receipts collected pursuant to G.S. 7A‑304 (a)(3a) to be deposited to the credit of the Sheriffs' Supplemental Pension Fund, hereinafter referred to as the Fund, to be used in making monthly pension payments to eligible retired sheriffs under the provisions of this Article and to pay the cost of administering the provisions of this Article.

(a1)      The Department of Justice shall, at the beginning of each calendar year, calculate the amount of funds, in addition to those funds from subsection (a) of this section and from G.S. 143‑166.83(f), needed for that year to pay the pension benefits under this Article and shall bill each county for that amount on a pro rata basis based on the most recent population estimates by the Office of State Budget and Management for each county. The amount so billed shall be paid by each county no later than March 1st of that year to the Department of Justice and shall be deposited into the Fund. For funding this contribution to the Fund, counties may use the portion of the civil process service fee per G.S. 7A‑311(a)(1) that is not required by statute to be used to ensure the timely service of process within the county, may use other funds, or both.

(b)        The State Treasurer shall be the custodian of the Sheriffs' Supplemental Pension Fund and shall invest its assets in accordance with the provisions of G.S. 147‑69.2 and G.S. 147‑69.3."

SECTION 6.(b)  G.S. 143‑166.83 reads as rewritten:

"§ 143‑166.83. Disbursements.

(a)        Repealed by Session Laws 1991 (Reg. Sess., 1992), c. 900, s. 54, effective January 1, 1993.

(b)        Immediately following January 1, 1993, and the first of January of each succeeding calendar year thereafter, the Department of Justice shall divide an amount equal to ninety percent (90%) of the assets of the Fund at the end of the preceding calendar year and shall add to that amount any assets remaining pursuant to subsection (f) of this section and the amounts pursuant to G.S. 143‑166.82(a1) and disburse the same as monthly payments in accordance with the provisions of this Article.

(c)        Ten percent (10%) of the Fund's assets as of January 1, 1993, and at the beginning of each calendar year thereafter, may be used by the Department of Justice in administering the provisions of this Article. This ten percent (10%) is to be derived from the Fund's assets prior to the addition of assets remaining pursuant to subsection (f) of this section.

(d)       All the Fund's disbursements shall be conducted in the same manner as disbursements are conducted for other special funds of the State.

(e)        If, for any reason, the Fund shall be insufficient to pay any pension benefits owed under this Article or other charges, then all benefits or payments shall be reduced pro rata for as long as the deficiency in amount exists. No claim shall accrue with respect to any amount by which a pension payment shall have been reduced.

(f)        Any assets remaining after reserving an amount equal to the disbursements required under subsections (b) and (c) of this section shall be accrued and included in disbursements for pensioners in succeeding years."

SECTION 6.(c)  G.S. 143‑166.85 reads as rewritten:

"§ 143‑166.85.  Benefits.

(a)        An eligible retired sheriff shall be entitled to and receive an annual pension benefit, payable in equal monthly installments, equal to one share for each full year of eligible service as sheriff multiplied by his total number of years of eligible service. The amount of each share shall be determined by dividing the total number of years of eligible service for all eligible retired sheriffs on December 31 of each calendar year into the amount to be disbursed as monthly pension payments in accordance with the provisions of G.S. 143‑166.83(b). In no event however shall a monthly pension under this Article exceed an amount, which an amount that, when added to a retired allowance at retirement from the Local Governmental Employees' Retirement System or to the amount he would have been eligible to receive if service had not been forfeited by the withdrawal of accumulated contributions, is greater than equal to seventy‑five percent (75%) of a sheriff's equivalent annual salary immediately preceding retirement computed on the latest monthly base rate, to a maximum amount that does not exceed (i) of one thousand five hundred dollars ($1,500).($1,500) or (ii) the sheriff's equivalent annual salary immediately preceding retirement computed on the latest monthly base rate when the benefit described in this subsection is added to the amount of the benefit the sheriff receives under G.S. 143‑166.42 and the amount of the sheriff's retired allowance at retirement from the Local Governmental Employees' Retirement System or the amount the sheriff would have been eligible to receive if service had not been forfeited by the withdrawal of accumulated contributions.

(b)        All monthly pensions payable under this Article shall be paid on the last business day of each month.

(c)        At the death of the pensioner, benefits for the current calendar year will continue and be paid in monthly installments to the decedent's spouse or estate, in accordance with the provisions of Chapter 28A of the General Statutes. Benefits will cease upon the last payment being made in December of the current year.

(d)       Monthly pensions payable under this Article will cease upon the full‑time reemployment of a pensioner with an employer participating in the Local Governmental Employees' Retirement System for as long as the pensioner is so reemployed.

(e)        Repealed by Session Laws 1989, c. 792, s. 2.9.

(f)        Nothing contained in this Article shall preclude or in any way affect the benefits that a pensioner may be entitled to from any state, federal or private pension, retirement or other deferred compensation plan."

SECTION 6.(d)  This section becomes effective January 1, 2018.

PART VII. EFFECTIVE DATE

SECTION 7.  Except as otherwise provided, this act is effective when it becomes law.

In the General Assembly read three times and ratified this the 30th day of June, 2017.

Legislation enacted by the General Assembly this session again makes it possible for persons convicted of habitual impaired driving to (eventually) have their driving privileges restored.

S.L. 2017-176 (S 384) removed the sunset clause in the 2009 legislative act that created G.S. 20-19(e4), putting that statutory provision, which expired in December 1, 2016, back on the books.  Effective July 21, 2017, a person whose driver’s license is permanently revoked for a conviction of habitual impaired driving may have his or her driver’s license restored upon satisfying the following conditions:

The person’s license must have been revoked for at least 10 years following the completion of any sentence imposed for habitual impaired driving;

The person must not have been convicted of any criminal offense in any state or federal court in the 10 years preceding the date of the application; and

The person must not currently use alcohol, unlawfully use any controlled substance, or excessively use prescription drugs.

The person seeking to have his or her driver’s license restored must provide the DMV hearing officer before whom he or she appears with satisfactory proof that these conditions are satisfied.

The restoration of a person’s driver’s license pursuant to G.S. 20-19(e4) is conditioned upon the person only driving a vehicle equipped with ignition interlock and not driving with any measurable alcohol concentration. G.S. 20-17.8(b). These conditions remain in effect for seven years from the date of restoration. G.S. 20-17.8(c)(3).

Since the habitual DWI restoration provision was first enacted in 2009, 216 people have had their driver’s licenses restored. There are around 300 convictions for habitual impaired driving each year. Depending upon the numbers of people in this population who are able to satisfy the restoration criteria, restoration applications for such drivers could number in the hundreds each year.

If the legislative history is a guide, the pilot legislation enacted in 2009 to restore licenses to this population has been successful.  The first iteration of the restoration provision was set to expire in 2014.  It was then extended to 2016.  And now it is back on the books with no sunset date.

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Riding with Feet on Dashboard

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I just came across this article.  While it is not illegal, it is not a good idea.

A Tennessee fire department took to Facebook on August 3 to share an extremely crucial car safety tip that often gets overlooked.

The Chattanooga Fire Department shared the alarming message, which was originally posted by road safety activist Shane O'Connor on Twitter, to warn residents about the dangers of riding in a car with their feet on the dashboard.

"While traveling this weekend, I noticed many passengers had their feet on the dashboard of their car," the post read. "Airbags deploy between 100 & 220 MPH. If you ride with your feet on the dash and you're involved in an accident, the airbag may send your knees through your eye sockets."

While that may sound like a far-fetched scenario, one Georgia woman can confirm that this nightmare can, indeed, happen to anyone.

Audra Tatum says that she used to ride in cars with her feet on the dashboard all the time.

"My husband would tell me, 'If we have a wreck it's going to break your leg.' I dismissed him," she told WTVC.

But on August 2, 2015, all that changed when Tatum and her husband T-boned another vehicle on their way to pick up their two son's from her parents' house.

At the time of the crash, Tatum wasn't wearing a seat belt and was also resting her foot up against the dashboard.

The force of the airbags exploding threw her foot up into her face, shattering her nose, ankle, femur and shoulder.

Sadly, doctors told Tatum that if she had both of her feet on the floor at the time of the crash, she likely wouldn't have sustained any injuries at all.

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CIVIL PENALTIES FOR PASSING STOPPED SCHOOL BUS IN NC

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New Civil penalties for passing stopped school bus in NC.  Thanks to NC SOG and Shea Denning for the information.

Four years ago, the General Assembly increased the criminal fine for passing a stopped school bus and enacted new license revocation and registration hold provisions. During the previous year—2012—there had been more than 1,300 misdemeanor charges for passing a stopped school bus and three felony charges, two for unlawfully passing a stopped school bus and striking a person and one for doing so and causing death. Not much has changed. In 2016, there were 1,400 misdemeanor charges for passing a stopped school bus and three felony charges for doing so and striking a person. This year, the General Assembly took a different tack. S.L. 2017-188 (S 55) authorizes counties to adopt ordinances that enforce the provisions of G.S. 20-217 by means of automated school bus safety cameras and impose civil penalties for violations.

The rule. G.S. 20-217(a) requires the driver of a vehicle that approaches a school bus from any direction on the same street, highway, or public vehicular area to stop and remain stopped when (1) the bus is displaying its mechanical stop signal or flashing red lights and (2) is stopped for the purpose of allowing passengers to board or leave the bus. The driver of the other vehicle may not move, pass, or attempt to pass the school bus until after (1) the mechanical stop signal has been withdrawn, (2) the flashing red stoplights have been turned off, and (3) the bus has started to move. (The exception for vehicles traveling in the opposite direction on a divided roadway is discussed here.)

Criminal penalties. Passing a stopped school bus in violation of G.S. 20-217(a) is a Class 1 misdemeanor. A driver who willfully violates G.S. 20-217(a) and strikes a person is guilty of a Class I felony. A driver who willfully violates G.S. 20-217(a), strikes a person, and thereby causes the person’s death, is guilty of a Class H felony.

Civil enforcement. New G.S. 153A-246 permits counties to adopt ordinances for the civil enforcement of G.S. 20-217 by means of an automated school bus safety camera installed and operated on the school bus. (Absent express authorization, this type of regulation would be preempted.) Such an ordinance applies only to misdemeanor violations of G.S. 20-217—not to violations that result in injury or death.

Issuance of citation. New G.S. 153A-246(b) sets forth the procedures for civil enforcement. The county must issue a citation notifying the registered owner of the motor vehicle of the violation. The owner must receive the citation within 60 days of the violation. The citation must include an image taken from the automated school bus camera that shows the vehicle involved in the violation. It must also include an affirmation from a law enforcement officer that his or her inspection of the image reveals that the owner’s motor vehicle violated the ordinance.

Hearing. A person who wishes to contest a citation must, within 30 days of receiving the citation, request a hearing in writing. The person must also submit an affidavit stating the basis for contesting the citation. If the registered owner avers that the vehicle was, at the time of the violation, in the care, custody or control of another person or company, that person or company may then be issued a citation.

The county must institute a nonjudicial administrative hearing process for contested citations or penalties. A person may appeal an adverse administrative decision to district court.

Civil penalty. Violations of such an ordinance are noncriminal violations for which no insurance or driver’s license points may be assessed. The civil penalty for the first offense is $400. The penalty for the second offense is $750. Each subsequent ordinance violation is subject to a $1,000 penalty. A person who fails to pay the civil penalty or request a hearing within 30 days after receiving the citation waives the right to contest responsibility and is subject to a late penalty of $100 in addition to the assessed civil penalty.

Registration hold. Effective July 25, 2018, DMV must refuse to register any motor vehicle owned by a person who has failed to pay a civil penalty assessed under a local ordinance adopted pursuant to G.S. 153A-246. This provision applies to the registration of any motor vehicle whose owner’s failure to pay is reported by a county to DMV on or after July 25, 2017.

No civil enforcement in the case of criminal prosecution. If a person is charged in a criminal pleading with violating G.S. 20-217, the charging law enforcement officer must so notify the county office responsible for processing civil citations. The county may not impose a civil penalty against the person arising out of the same facts as those for which the person is charged in a criminal pleading. If a civil penalty based on the same conduct was previously imposed and paid, the county must refund the civil penalty with interest.

Criminal prosecution encouraged. G.S. 153A-246(e) states that the General Assembly “encourages criminal prosecution for violation of G.S. 20-217” when school bus camera photographs and video provide sufficient evidence to support such a prosecution. Amendments to G.S. 20-217(h) clarify, however, that “failure to produce a photograph or video recorded by an automated school bus safety camera” does not preclude prosecution.

Images as evidence. New G.S. 115C-242.1(d) requires that any photographs or videos recorded by an automated school bus safety camera that capture a violation of G.S. 20-217 be provided to the investigating law enforcement agency for use as evidence in a criminal prosecution. When such a camera is installed, it must be identified by a warning sign conspicuously posted on the school bus.

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New Regs for Automated Cars

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Great blog from NC SOG on new legislature on automated cars.

Last month, the General Assembly ratified a bill authorizing the operation of fully autonomous vehicles on state roadways. The legislation is effective December 1, 2017.  If you expect your car to begin driving you to work later this fall, however, you’ll be disappointed. In this instance, legislation has outpaced the technology it regulates.

The legislation. North Carolina joined nineteen other states in regulating the operation of the autonomous vehicles when Governor Roy Cooper signed House Bill 469 last week.

S.L. 2017-166 (H 469) enacts new Article 18 in Chapter 20 (G.S. § 20-400 – 403) to regulate the operation of fully autonomous vehicles. A “fully autonomous vehicle” is a motor vehicle that is equipped with an automated driving system that does not require an occupant of the vehicle to perform any portion of the operational or tactical control of the vehicle when the automated driving system is engaged. In fact, to qualify as a fully autonomous vehicle any equipment that permits an occupant to perform part of the driving task must be stowed or made unusable so that an occupant cannot assume control of the vehicle when the automated driving system is engaged.

In engineering lingo, fully autonomous vehicles are classified at SAE Levels 4 and 5. The National Highway Transportation Safety Administration explains these classifications this way:

At SAE Level 4, an automated system can conduct the driving task and monitor the driving environment, and the human need not take back control, but the automated system can operate only in certain environments and under certain conditions; and

At SAE Level 5, the automated system can perform all driving tasks, under all conditions that a human driver could perform them.

Vehicle requirements. New G.S. 20-401(g) permits the operation of fully autonomous vehicles on North Carolina roadways if the vehicle meets all of the following requirements:

(1) the vehicle complies with state and federal law and has been certified as being in compliance with federal motor vehicle safety standards;

(2) if involved in a crash, the vehicle is capable of stopping at the scene, contacting the appropriate law enforcement agency to report the crash, calling for medical assistance, and remaining at the scene until authorized to leave;

(3) the vehicle can achieve a “minimal risk condition” (meaning that if the automatic driving system fails, the vehicle comes to a complete stop);

(4) the vehicle is covered by a motor vehicle liability policy meeting statutory requirements; and

(5) the vehicle is lawfully registered.

No license necessary. New G.S. 20-401(a) states that the operator of a fully autonomous vehicle with the automated driving system engaged is not required to be licensed to drive.

The owner is responsible. New G.S. 20-401(d) provides that the person in whose name a fully autonomous vehicle is registered is responsible for any moving violations involving the vehicle.

Fully autonomous vehicles are no substitute for a babysitter. A person must be at least 12 years old to travel unsupervised in a fully autonomous vehicle. G.S. 20-401(c) makes it unlawful for the parent or legal guardian of a child under 12 to knowingly permit the child to occupy a fully autonomous vehicle that is in motion or that has the engine running unless the child is being supervised by a person who is at least 18 years old.

Preemption. Local governments are prohibited under new G.S. 20-401(f) from enacting laws regulating fully autonomous vehicles or vehicles that are equipped with an automated driving system. Local governments may, however, continue to regulate traffic as authorized in Chapter 153A and Chapter 160A of the General Statutes so long as the regulations apply to motor vehicles generally.

Fully Autonomous Vehicle Committee established. New G.S. 20-403 creates a Fully Autonomous Vehicle Committee within the North Carolina Department of Transportation (DOT) and specifies the categories of persons who shall comprise the 17-member committee. The committee must meet at least four times a year to consider matters related to fully autonomous vehicle technology, review the application of state motor vehicle law to fully autonomous vehicles, make recommendations regarding the testing of fully autonomous vehicles, make recommendations for DOT rules and ordinances, and make recommendations to the General Assembly on necessary changes to state law.

Where can I get one of these vehicles?  Nowhere just yet.

Ford Motor Company says it will produce a fully autonomous vehicle by 2021. But the vehicle it promises is a Level 4 vehicle, which means that it is fully autonomous only in certain areas and under certain conditions. An industry analyst explained here that such a car may only be fully autonomous in a geo-fenced area, such as the area of Pittsburgh where Uber is testing self-driving cars.

It may be another decade before Level 5 automation—think a vehicle with no steering wheel or pedals—is available.  But when it is, North Carolina will be ready.

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Death by Motor Vehicle

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This can even happen to police officers.

20-141.4.  Felony and misdemeanor death by vehicle; felony serious injury by vehicle; aggravated offenses; repeat felony death by vehicle.

(a)        Repealed by Session Laws 1983, c. 435, s. 27.

(a1)      Felony Death by Vehicle. - A person commits the offense of felony death by vehicle if:

(1)        The person unintentionally causes the death of another person,

(2)        The person was engaged in the offense of impaired driving under G.S. 20-138.1 or G.S. 20-138.2, and

(3)        The commission of the offense in subdivision (2) of this subsection is the proximate cause of the death.

(a2)      Misdemeanor Death by Vehicle. - A person commits the offense of misdemeanor death by vehicle if:

(1)        The person unintentionally causes the death of another person,

(2)        The person was engaged in the violation of any State law or local ordinance applying to the operation or use of a vehicle or to the regulation of traffic, other than impaired driving under G.S. 20-138.1, and

(3)        The commission of the offense in subdivision (2) of this subsection is the proximate cause of the death.

(a3)      Felony Serious Injury by Vehicle. - A person commits the offense of felony serious injury by vehicle if:

(1)        The person unintentionally causes serious injury to another person,

(2)        The person was engaged in the offense of impaired driving under G.S. 20-138.1 or G.S. 20-138.2, and

(3)        The commission of the offense in subdivision (2) of this subsection is the proximate cause of the serious injury.

(a4)      Aggravated Felony Serious Injury by Vehicle. - A person commits the offense of aggravated felony serious injury by vehicle if:

(1)        The person unintentionally causes serious injury to another person,

(2)        The person was engaged in the offense of impaired driving under G.S. 20-138.1 or G.S. 20-138.2,

(3)        The commission of the offense in subdivision (2) of this subsection is the proximate cause of the serious injury, and

(4)        The person has a previous conviction involving impaired driving, as defined in G.S. 20-4.01(24a), within seven years of the date of the offense.

(a5)      Aggravated Felony Death by Vehicle. - A person commits the offense of aggravated felony death by vehicle if:

(1)        The person unintentionally causes the death of another person,

(2)        The person was engaged in the offense of impaired driving under G.S. 20-138.1 or G.S. 20-138.2,

(3)        The commission of the offense in subdivision (2) of this subsection is the proximate cause of the death, and

(4)        The person has a previous conviction involving impaired driving, as defined in G.S. 20-4.01(24a), within seven years of the date of the offense.

(a6)      Repeat Felony Death by Vehicle Offender. - A person commits the offense of repeat felony death by vehicle if:

(1)        The person commits an offense under subsection (a1) or subsection (a5) of this section; and

(2)        The person has a previous conviction under:

a.         Subsection (a1) of this section;

b.         Subsection (a5) of this section; or

c.         G.S. 14-17 or G.S. 14-18, and the basis of the conviction was the unintentional death of another person while engaged in the offense of impaired driving under G.S. 20-138.1 or G.S. 20-138.2.

The pleading and proof of previous convictions shall be in accordance with the provisions of G.S. 15A-928.

(b)        Punishments. - Unless the conduct is covered under some other provision of law providing greater punishment, the following classifications apply to the offenses set forth in this section:

(1)        Repeat felony death by vehicle is a Class B2 felony.

(1a)      Aggravated felony death by vehicle is a Class D felony. Notwithstanding the provisions of G.S. 15A-1340.17, the court shall sentence the defendant in the aggravated range of the appropriate Prior Record Level.

(2)        Felony death by vehicle is a Class D felony. Notwithstanding the provisions of G.S. 15A-1340.17, intermediate punishment is authorized for a defendant who is a Prior Record Level I offender.

(3)        Aggravated felony serious injury by vehicle is a Class E felony.

(4)        Felony serious injury by vehicle is a Class F felony.

(5)        Misdemeanor death by vehicle is a Class A1 misdemeanor.

(c)        No Double Prosecutions. - No person who has been placed in jeopardy upon a charge of death by vehicle may be prosecuted for the offense of manslaughter arising out of the same death; and no person who has been placed in jeopardy upon a charge of manslaughter may be prosecuted for death by vehicle arising out of the same death.  (1973, c. 1330, s. 9; 1983, c. 435, s. 27; 1993, c. 285, s. 10; c. 539, ss. 371, 1259; 1994, Ex. Sess., c. 24, s. 14(c); 2006-253, s. 14; 2007-493, s. 15; 2009-528, s. 1; 2012-165, s. 2, 3.)

CMPD Officer Strikes Pedestrian.  The Charlotte Observer reports that Officer Phillip Barker of the Charlotte-Mecklenburg Police Department has been charged with misdemeanor death by vehicle after fatally colliding with a pedestrian in his cruiser over the weekend.   The Observer says that Barker was traveling through a green light at 100 mph in a 35 mph zone when he hit James Michael Short as he was crossing the street.  Barker was responding to a motor vehicle crash at the time of the incident and had his siren and lights on. 

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Duty to Report Accidents

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Great article on what accidents need to be reported to police by Shea Denning of the NC SOG.

The general rule for a driver involved in a crash in which a person is injured or at least $1,000 in property damages occurs is this: The driver must stop his vehicle at the scene and must remain there with the vehicle until a law enforcement officer completes the crash investigation or authorizes the driver to leave and the vehicle to be removed. There is, however, an exception to this rule. That exception led to yesterday’s court of appeals opinion in State v. Scaturro, reversing a driver’s conviction on charges that he left the scene of a crash.

What is the exception? A driver may leave a crash scene in his vehicle to call for a law enforcement officer, to call for medical assistance or treatment, or to remove himself or others from significant risk of injury. G.S. 20-166. A driver who leaves for one of these purposes must return with the vehicle to the accident scene within a reasonable period of time, unless otherwise instructed by a law enforcement officer.

An additional responsibility. In addition to stopping and remaining at the scene, the driver of a vehicle involved in a crash must provide reasonable assistance to any person injured in the crash. Reasonable assistance includes calling for medical assistance.

What happened in State v. Scaturro? The defendant in Scaturro was driving his car in Wilmington, NC when he struck a boy riding a bicycle, who was making a U-turn around a median in the road. The boy was thrown from the bicycle, and the left side of his head, shoulder and elbow struck the pavement as he skidded across the road. His left ear was nearly severed in the fall.

The defendant got out of his car and saw that the boy was profusely bleeding. He gave the boy a rag to hold against his head. The boy called 911, but while he was on the phone, the defendant said he would take him to the hospital. The boy got into the defendant’s car and the defendant drove “‘like a maniac to get [him] to the hospital.’”  When the boy got out of the defendant’s car at the hospital, he made note of the defendant’s license plate number. The boy’s torn ear was removed in surgery immediately following the accident, and he has undergone additional surgeries since that time.

Two days after the accident, a highway patrol trooper located the defendant and asked him about the accident. The defendant admitted his involvement, and was arrested. He was indicted for one count of felony hit and run resulting in serious bodily injury in violation of N.C.G.S. § 20-166(a). The indictment alleged that he “unlawfully, willfully, and feloniously did fail to remain at the scene” of a crash.

At defendant’s trial on the hit and run charges, the court instructed the jury that, in order for the defendant to be guilty of the offense, the State was required to prove beyond a reasonable doubt that “defendant’s failure to remain at the scene of the crash was willful, that is intentional.” The court defined intent as “a mental attitude seldom provable by direct evidence” and explained that intent “must ordinarily be proved by circumstances from which it may be inferred.”

Issue on appeal. The defendant argued on appeal that the trial court erred in failing to instruct the jury on willfulness.   He argued that the evidence showed that he only left the scene of the accident to take the injured boy to the nearest hospital, which is permitted under N.C.G.S. § 20-166(a) and (b), and therefore he did not willfully violate the statute. In response, the State argued that the defendant was not entitled to an instruction on willfulness because the statute does not permit a driver to leave the scene of an accident at all—not even to obtain medical assistance. Because the defendant did not object at trial to the jury instructions, the court of appeals considered whether the failure to instruct on willfulness was plain error. To meet that standard, it must be probable that absent the instructional error the jury would have returned a different verdict.

Court’s analysis.  The court of appeals quickly concluded that the trial court’s jury instructions were erroneous as G.S. 20-166(a) penalizes only willful violations of the statute. To be willful, an act must be both intentional and without justification or excuse. Thus, the court explained, a defendant might leave the scene of an accident intentionally, but still not willfully violate G.S. 20-166(a) if the intentional departure was justified or with excuse.

In considering whether the error had a probable impact on the jury’s verdict, the court noted that the defendant’s sole defense to the charges was that he was authorized to leave the crash scene; indeed, the defendant said he was required to leave to procure medical help for the boy. The defendant further contended that his failure to return to the scene was not willful as he was in an extremely emotional state and was traumatized by the accident. There was evidence at trial to support the defendant’s arguments.

The appellate court concluded that, given this context, the trial court’s failure to provide an instruction on willfulness deprived the defendant “of the gravamen of his basis for acquittal.” Had he received the instruction, the court reasoned, “it is at least probable that a jury would have concluded that [the] [d]efendant had a justification or excuse for leaving the scene and failing to return.”

The court reversed the defendant’s convictions and remanded for a new trial.

What is the scope of the exception?  To “prevent further confusion and danger” the court went on to explain that a driver may lawfully leave a crash scene to obtain medical care for himself or another injured person. The court reasoned that even though G.S. 20-166(a) instructs that drivers may only leave the scene to call for aid, that authorization is expanded by subsection (b)’s requirement that drivers render reasonable assistance to any person injured in a crash, which can include, but is not limited to, calling for medical assistance.

The court explained that “taking a seriously injured individual to the hospital to receive medical treatment is not prohibited . . .  in the event that such assistance is reasonable under the circumstances.” In fact, the court noted, violation of the directive in G.S. 20-166(b) to provide reasonable assistance is itself a Class 1 misdemeanor.

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New Deferral Program for Unlicensed, Undocumented Drivers

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Great article on this issue.  I do not usually post the comments but I thought this one was thought provoking.  Thanks to Shea Denning for her post.

A few weeks ago, she wrote about a Stanford University study suggesting that granting driver’s licenses to unauthorized immigrants improves overall traffic safety. That approach is not an option in North Carolina, where unauthorized immigrants have been ineligible to obtain a driver’s license, learner’s permit or identification card since 2006. Recognizing that many unauthorized immigrants drive regardless of whether they are licensed, the district attorney in Orange and Chatham Counties announced this week a new policy for disposing of no operator’s license charges against such drivers, provided they meet certain conditions.

The News and Observer reports that the district attorney’s office in Orange and Chatham Counties will dismiss charges of no operator’s license, a Class 3 misdemeanor, if the person charged is ineligible to be licensed for immigration-related reasons and he or she provides an identification card and completes a driving school and civics education course. Orange County Justice United, a nonprofit advocacy group that lobbied for the change, has posted this overview of the deferral program on its website.

The overview document states that the program will not be available to individuals charged with no operator’s license in conjunction with other charges or who are ineligible to be licensed due to prior revocations, moving violations, unpaid tickets, or other offenses. Orange-Chatham District Attorney Jim Woodall told reporters that the program would provide driver’s education to a group of citizens who had not before received that type of instruction and would help to build trust between the law enforcement and immigrant communities.

“Faith-IDs” are listed in the overview as a preferred type of identification for unauthorized immigrants to provide to the district attorney’s office. These identification cards are issued by FaithAction, a Greensboro organization that launched an initiative in 2013 to provide identification cards to North Carolina residents who lacked access to government issued forms of identification. The Greensboro Police Department has publicly supported the FaithAction’s efforts, sending Spanish-speaking officers to identification card events.

In 2016, more than 121,766 people were charged statewide with driving without a license. Slightly more than 2,000 people were charged with this offense in Orange and Chatham Counties last year. Orange County Justice United reports that 77 percent of drivers charged with no operator’s license in Orange and Chatham Counties from 2008 to 2015 were Latino. They did not report how many of these drivers would have been eligible for deferral under the new program.

In addition to avoiding a misdemeanor record, defendants whose charges are dismissed under the deferral program will not be assessed the $190 in court costs that apply to conviction of a misdemeanor Chapter 20 offense or the $50 fine that typically accompanies a no operator’s license conviction.

One comment on “New Deferral Program for Unauthorized Immigrants Charged with NOL”

Jon

April 21, 2017 at 3:02 pm

This is utterly absurd.  How can anyone associated with enforcing the law, as it is written, agree to this?  When people decide to not enforce the law, in certain cases, it leads to abuse and discrimination.  The law should be plainly written and enforced in the same way, regardless of who the charged person is.  That is the only way that ALL people are treated the same under the law. By giving a certain group of people a pass on the law, the law cannot be enforced fairly across the board.  What about an African American or a white person that does not have a license?  Different Standard?

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Effects of Issuing Driver’s Licenses to Undocumented Immigrants

www.kisslinglaw.com

Interesting post regarding this issue.  It seems obvious that those with a license are more likely to stop after an accident if they have a license.  I would question whether the same study would get the same results if just comparing licensed drivers and unlicensed drivers regardless of whether or not they are immigrants or not.

Researchers at Stanford University recently published a study showing that a 2013 California law allowing unauthorized immigrants to obtain driver’s licenses led to a significant reduction in hit and run accidents and did not increase the rate of traffic accidents and fatalities. The study’s authors said this latter finding “suggests there is no empirical support for the claim that unauthorized immigrants are less cautious drivers or generally more likely to cause accidents.” Instead, the findings suggest that “providing driver’s licenses to unauthorized immigrants led to improved traffic safety” and to “significant positive externalities for the communities in which they live.” What significance might this finding have for policymakers in North Carolina?

North Carolina law. North Carolina’s current driver’s license rule for unauthorized immigrants is easy to explain: Unauthorized immigrants are not eligible to obtain a North Carolina driver’s license, learner’s permit, or identification card. That was not the case before 2006. In fact, in the early 2000s, North Carolina had a widespread reputation for being a state in which a person could easily obtain a driver’s license, regardless of whether the person was an authorized immigrant or whether the person even lived in the state. The licensing system was substantially amended following the U.S. Congress’s enactment of the REAL ID Act of 2005. That act was a response to the 9/11 Commission’s recommendation that the federal government set standards for the issuance of identification documents such as driver’s licenses. North Carolina legislation enacted in 2006 requires that an applicant for a North Carolina driver’s license produce a Social Security Card or other documentation issued by the U.S. government proving his or her lawful presence in the United States. That’s precisely the sort of documentation that unauthorized immigrants lack.

California law. According to the Stanford study, California is one of 12 states that, along with the District of Columbia, have adopted laws that allow unauthorized immigrants to obtain driver’s licenses. Section 12801.9 of California Motor Vehicle Code, which became effective on January 1, 2015, provides for the issuance of licenses bearing a special designation for such drivers. The licenses must bear the following notice:  “This card is not acceptable for official federal purposes. This license is issued only as a license to drive a motor vehicle. It does not establish eligibility for employment, voter registration, or public benefits.” The statute prohibits anyone from using this type of license to consider the licensee’s citizenship or immigration status as a basis for an investigation, arrest, citation, or detention. More than 600,000 licenses were issued under section 12801.9 in the first year it was effective.

Key findings. The Stanford study estimates that Section 12801.9 led to an average decrease in the rate of hit and run accidents of between 7 and 10 percent, which translates to about 4,000 fewer hit and run accidents in 2015. As previously noted, the study found no change in the rate of accidents. Researchers reported that vehicle registration data following enactment of the law indicated that unauthorized immigrants who obtained special driver’s licenses were less likely to register a car than other newly licensed drivers. This finding suggested to researchers that these drivers were already driving (without a driver’s license) before California’s driver’s license law was amended.

A potential explanation. The study’s authors posit that accidents did not increase under the new law because most new license holders were driving before they were authorized to do so. As a result, most of them had sufficient driving experience; obtaining a driver’s license did not change their routine driving behavior. As for the effect on hit and run accidents, the authors said that the prohibition against using the license to consider an individual’s immigration status reduced the incentive for a driver to flee the scene for fear of being detained and deported. In addition, once they became licensed, such drivers no longer had to worry that the vehicle they were driving would be seized and impounded on the basis that it was driven by a person without a license.

The significance of reducing hit and runs. The study reports that reducing hit and runs is a benefit for public safety given the serious injuries and fatalities that can result from delayed medical reporting.  It also has a positive economic effect by making it more likely that the responsible party will bear the financial burden of the accident.  The study estimated that 4,000 fewer hit and run accidents resulted in $17 milllion being charged to the at-fault driver and his or her insurance company rather than to the hit and run victim. In addition, researchers estimated that the decline in hit and run accidents saved not-at-fault drivers about $3.5 million in out-of-pocket expenses for car repairs.

Relevance for policymakers in NC and elsewhere. The study’s authors note that initiatives like California’s have been debated in other states with significant populations of unauthorized immigrants, but that no one had, until now, studied the impact of such laws on traffic safety. While the estimated 350,000 unauthorized immigrants in North Carolina, representing 3.4 percent of the state’s overall population, are far outnumbered by the 2.6 million such persons in California, many of the same concerns regarding unlicensed driving by this population are present here. North Carolina legislators’ proposals for eliminating unauthorized driving by unauthorized immigrants have to date focused on deterrence rather than a special licensing approach. Last session, House Bill 338 proposed increasing the punishment for driving without a license for people who (like unauthorized immigrants) are not eligible to be licensed. This session’s House Bill 471 likewise proposes increasing the punishment for repeat offenders of the driver’s license law and provides for forfeiture of the vehicle driven by a person in the commission of a third or subsequent no operator’s license offense. Whatever approach policymakers adopt, empirical evidence about the impact of the California approach can help inform the policy debate.

Thank you to Shea Denning for this post.

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Does Race Affect Which Pedestrians We Stop For In Crosswalk?

www.kisslinglaw.com

Great study on this issue.  Shouldn’t we stop for everyone?

Examining racial bias as a potential factor in pedestrian crashes

Courtney Coughenoura, , , ,

Sheila Clarka, ,

Ashok Singhb, ,

Eudora Clawa, ,

James Abelara, ,

Joshua Huebnera,

a University of Nevada, Las Vegas School of Community Health Sciences, 4505 S. Maryland Pkway, Box 3064, Las Vegas, NV 89154, United States

b University of Nevada, Las Vegas William F. Harrah College of Hotel Administration, 4505 S. Maryland Pkway, Box 6021, Las Vegas, NV 89154, United States

Received 4 March 2016, Revised 26 August 2016, Accepted 29 September 2016, Available online 4 October 2016

Show less

http://dx.doi.org/10.1016/j.aap.2016.09.031

Get rights and content

Highlights

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Bias in yielding may influence rates of pedestrian crashes for people of color.

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Drivers yielded less to the white pedestrian while she waited at the curb.

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Drivers yielded less to the black pedestrian while she was in the roadway.

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Failing to yield while in the road has greater safety implications for people of color.

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Policies and environmental modifications to enhance pedestrian safety are warranted.

Abstract

Introduction

In the US people of color are disproportionately affected by pedestrian crashes. The purpose of this study was to examine the potential for racial bias in driver yielding behaviors at midblock crosswalks in low and high income neighborhoods located in the sprawling metropolitan area of Las Vegas, NV.

Methods

Participants (1 white, 1 black female) crossed at a midblock crosswalk on a multilane road in a low income and a high income neighborhood. Trained observers recorded (1) number of cars that passed in the nearest lane before yielding while the pedestrian waited near the crosswalk at the curb (2) number of cars that passed through the crosswalk with the pedestrian in the same half of the roadway.

Results

The first car in the nearest lane yielded to the pedestrian while they waited at the curb 51.5% of the time at the high income and 70.7% of the time at the low income crosswalk. Two way ANOVAs found an interaction effect between income and race on yielding behaviors. Simple effects for income revealed that at the high income crosswalk, drivers were less likely to yield to the white pedestrian while she waited at the curb (F(1,122) = 11.18;p = 0.001), and were less likely to yield to the black pedestrian while she was in the same half of the roadway at the high income crosswalk (F(1,124) = 4.40;p = 0.04). Simple effects for race showed significantly more cars passed through the crosswalk while the black pedestrian was in the roadway compared to the white pedestrian at the high income crosswalk (F(1,124) = 6.62;p = 0.01).

Conclusions

Bias in driver yielding behavior may be one influencing factor in higher rates of pedestrian crashes for people of color.

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Search Incident to Arrest for DWI

Great post from NC Dept of Gov.

In Arizona v. Gant, 556 U.S. 332 (2009), the Supreme Court of the United States ruled that an officer may “search a vehicle incident to a recent occupant’s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment” or it is “reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” Gant involved an arrest for driving with a suspended license, and the Court concluded that was “an offense for which police could not expect to find evidence in the passenger compartment” of the arrestee’s car.

But what about DWI? If an officer arrests a driver for DWI and secures the driver in the officer’s cruiser, may the officer search the driver’s vehicle because it is reasonable to believe that evidence of impaired driving will be found in the vehicle? Yes, at least on the facts before it, ruled the Court of Appeals of North Carolina in State v. Martinez, __ N.C. App. __, 795 S.E.2d 386 (2016). This post summarizes Martinez and considers searches incident to DWI arrests more broadly.

Facts. A Winston-Salem officer saw a truck traveling 48 m.p.h. in a 35 m.p.h. zone at 12:30 a.m. The officer turned to follow the truck, which pulled into a gas station. The defendant got out of the driver’s side and another man got out of the passenger side. They began walking towards the convenience store that was part of the station and the officer activated his blue lights. The officer instructed the defendant to get back in the truck. The defendant first refused, then went back towards the truck and threw the keys under the vehicle. He denied driving the truck. He smelled of alcohol. After further investigation, the officer arrested him for DWI.

The defendant was then “handcuffed and placed in the rear seat of one of the patrol cars, at least thirty feet away from his vehicle.” Another officer who had arrived on the scene searched the truck, finding beer bottles and a rifle. The defendant, a convicted felon, could not lawfully possess the gun.

Motion to suppress. The defendant was charged with being a felon in possession of a firearm. He moved to suppress, contending that the search was unlawful under Gant. One of the officers testified that he had been trained to search vehicles incident to DWI arrests, and that he found relevant evidence such as open containers of alcohol in “[a]t least fifty percent of these cases.” The trial court denied the motion, concluding that it was reasonable for the officers to believe that evidence of impaired driving would be in the truck.

Ruling on appeal. The case went to trial, the defendant was convicted, and he appealed the suppression issue. The court of appeals affirmed. It began by discussing the prior case of State v. Foy, 208 N.C.App. 562 (2010), in which the court considered whether a vehicle may be searched incident to the arrest of a driver for carrying a concealed weapon. The Foy court said yes, distinguishing Gant and reasoning that “the crime of carrying a concealed weapon is more akin to illegal narcotics possession, where evidence of the crime of arrest may be found in the vehicle, than it is to a simple traffic violation.”

Turning to the case before it, the court ruled that the search was likewise permissible:

Defendant denied ownership, possession, and operation of the vehicle both verbally and by throwing the keys under the vehicle. Based upon the totality of the circumstances, including the strong odor of alcohol on Defendant, Defendant’s effort to hide the keys and refusal to unlock the vehicle, and the officers’ training and experience with regard to driving while impaired investigations, the trial court properly concluded the officers reasonably believed the vehicle could contain evidence of the offense.

Comment and analysis. Martinez did not announce a categorical rule that a DWI arrest will always justify a search of the vehicle used in the offense. The court’s analysis relied on some factors that will not always be present in DWI cases, including the defendant’s denial of driving. It is easy to imagine a case in which the argument for permitting a search would be much weaker. For example, if an officer were outside a bar at 1:00 a.m. and saw a patron leave the establishment empty-handed, stagger to his car, and drive erratically away, there might be little reason to suspect that an open container of alcohol or other evidence would be found in the vehicle.

But that type of case may be relatively rare. Courts in other jurisdictions have generally permitted searches incident to DWI arrests. See, e.g., Taylor v. State, 137 A.3d 1029 (Md. Ct. App. 2016) (collecting cases and, while declining to rule categorically that a DWI arrest always justifies a vehicle search, nonetheless stating that “[i]n this case there was, and, we suspect, in most cases of an arrest for driving under the influence, there is likely to be” reason to believe that a search may reveal “open containers or other evidence related to the offense”); State v. Cantrell, 233 P.3d 178 (Id. Ct. App. 2010) (ruling that when an officer makes a DWI arrest, it is “reasonable to believe that evidence of the offense, e.g.[,] alcohol containers or other evidence of alcohol use,” will be found in the vehicle). I suspect that such searches will be upheld more often than not in North Carolina as well.

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Littering

Just had a client call who was charged with littering.  This is a class 3 Misdemeanor and carries a minimum fine of $250 and a maximum fine of $1,000.  All this for throwing a can of beer out of the window so she would not be charged with “open container”.  She ended up being charged with the Open Container violation anyway.  Below is the statute for your consideration.

§ 14-399.  Littering.

(a)        No person, including any firm, organization, private corporation, or governing body, agents or employees of any municipal corporation shall intentionally or recklessly throw, scatter, spill or place or intentionally or recklessly cause to be blown, scattered, spilled, thrown or placed or otherwise dispose of any litter upon any public property or private property not owned by the person within this State or in the waters of this State including any public highway, public park, lake, river, ocean, beach, campground, forestland, recreational area, trailer park, highway, road, street or alley except:

(1)        When the property is designated by the State or political subdivision thereof for the disposal of garbage and refuse, and the person is authorized to use the property for this purpose; or

(2)        Into a litter receptacle in a manner that the litter will be prevented from being carried away or deposited by the elements upon any part of the private or public property or waters.

(a1)      No person, including any firm, organization, private corporation, or governing body, agents, or employees of any municipal corporation shall scatter, spill, or place or cause to be blown, scattered, spilled, or placed or otherwise dispose of any litter upon any public property or private property not owned by the person within this State or in the waters of this State including any public highway, public park, lake, river, ocean, beach, campground, forestland, recreational area, trailer park, highway, road, street, or alley except:

(1)        When the property is designated by the State or political subdivision thereof for the disposal of garbage and refuse, and the person is authorized to use the property for this purpose; or

(2)        Into a litter receptacle in a manner that the litter will be prevented from being carried away or deposited by the elements upon any part of the private or public property or waters.

(a2)      Subsection (a1) of this section does not apply to the accidental blowing, scattering, or spilling of an insignificant amount of municipal solid waste, as defined in G.S. 130A-290(18a), during the automated loading of a vehicle designed and constructed to transport municipal solid waste if the vehicle is operated in a reasonable manner and according to manufacturer specifications.

(b)        When litter is blown, scattered, spilled, thrown or placed from a vehicle or watercraft, the operator thereof shall be presumed to have committed the offense. This presumption, however, does not apply to a vehicle transporting nontoxic and biodegradable agricultural or garden products or supplies, including mulch, tree bark, wood chips, and raw logs.

(c)        Any person who violates subsection (a) of this section in an amount not exceeding 15 pounds and not for commercial purposes is guilty of a Class 3 misdemeanor punishable by a fine of not less than two hundred fifty dollars ($250.00) nor more than one thousand dollars ($1,000) for the first offense. In addition, the court may require the violator to perform community service of not less than eight hours nor more than 24 hours. The community service required shall be to pick up litter if feasible, and if not feasible, to perform other labor commensurate with the offense committed. Any second or subsequent violation of subsection (a) of this section in an amount not exceeding 15 pounds and not for commercial purposes within three years after the date of a prior violation is a Class 3 misdemeanor punishable by a fine of not less than five hundred dollars ($500.00) nor more than two thousand dollars ($2,000). In addition, the court may require the violator to perform community service of not less than 16 hours nor more than 50 hours. The community service required shall be to pick up litter if feasible, and if not feasible, to perform other labor commensurate with the offense committed.

(c1)      Any person who violates subsection (a1) of this section in an amount not exceeding 15 pounds is guilty of an infraction punishable by a fine of not more than one hundred dollars ($100.00). In addition, the court may require the violator to perform community service of not less than four hours nor more than 12 hours. The community service required shall be to pick up litter if feasible, and if not feasible, to perform other labor commensurate with the offense committed. Any second or subsequent violation of subsection (a1) of this section in an amount not exceeding 15 pounds within three years after the date of a prior violation is an infraction punishable by a fine of not more than two hundred dollars ($200.00). In addition, the court may require the violator to perform community service of not less than eight hours nor more than 24 hours. The community service required shall be to pick up litter if feasible, and if not feasible, to perform other labor commensurate with the offense committed. For purposes of this subsection, the term "litter" shall not include nontoxic and biodegradable agricultural or garden products or supplies, including mulch, tree bark, and wood chips.

(d)       Any person who violates subsection (a) of this section in an amount exceeding 15 pounds but not exceeding 500 pounds and not for commercial purposes is guilty of a Class 3 misdemeanor punishable by a fine of not less than five hundred dollars ($500.00) nor more than two thousand dollars ($2,000). In addition, the court shall require the violator to perform community service of not less than 24 hours nor more than 100 hours. The community service required shall be to pick up litter if feasible, and if not feasible, to perform other community service commensurate with the offense committed.

(d1)     Any person who violates subsection (a1) of this section in an amount exceeding 15 pounds but not exceeding 500 pounds is guilty of an infraction punishable by a fine of not more than two hundred dollars ($200.00). In addition, the court may require the violator to perform community service of not less than eight hours nor more than 24 hours. The community service required shall be to pick up litter if feasible, and if not feasible, to perform other labor commensurate with the offense committed.

(e)        Any person who violates subsection (a) of this section in an amount exceeding 500 pounds or in any quantity for commercial purposes, or who discards litter that is a hazardous waste as defined in G.S. 130A-290 is guilty of a Class I felony.

(e1)      Any person who violates subsection (a1) of this section in an amount exceeding 500 pounds is guilty of an infraction punishable by a fine of not more than three hundred dollars ($300.00). In addition, the court may require the violator to perform community service of not less than 16 hours nor more than 50 hours. The community service required shall be to pick up litter if feasible, and if not feasible, to perform other labor commensurate with the offense committed.

(e2)      If any person violates subsection (a) or (a1) of this section in an amount exceeding 15 pounds or in any quantity for commercial purposes, or discards litter that is a hazardous waste as defined in G.S. 130A-290, the court shall order the violator to:

(1)        Remove, or render harmless, the litter that he discarded in violation of this section;

(2)        Repair or restore property damaged by, or pay damages for any damage arising out of, his discarding litter in violation of this section; or

(3)        Perform community public service relating to the removal of litter discarded in violation of this section or to the restoration of an area polluted by litter discarded in violation of this section.

(f)        A court may enjoin a violation of this section.

(f1)      If a violation of subsection (a) of this section involves the operation of a motor vehicle, upon a finding of guilt, the court shall forward a record of the finding to the Department of Transportation, Division of Motor Vehicles, which shall record a penalty of one point on the violator's drivers license pursuant to the point system established by G.S. 20-16. There shall be no insurance premium surcharge or assessment of points under the classification plan adopted under G.S. 58-36-65 for a finding of guilt under this section.

(g)        A motor vehicle, vessel, aircraft, container, crane, winch, or machine involved in the disposal of more than 500 pounds of litter in violation of subsection (a) of this section is declared contraband and is subject to seizure and summary forfeiture to the State.

(h)        If a person sustains damages arising out of a violation of subsection (a) of this section that is punishable as a felony, a court, in a civil action for the damages, shall order the person to pay the injured party threefold the actual damages or two hundred dollars ($200.00), whichever amount is greater. In addition, the court shall order the person to pay the injured party's court costs and attorney's fees.

(i)         For the purpose of the section, unless the context requires otherwise:

(1)        "Aircraft" means a motor vehicle or other vehicle that is used or designed to fly, but does not include a parachute or any other device used primarily as safety equipment.

(2)        Repealed by Session Laws 1999-454, s. 1.

(2a)      "Commercial purposes" means litter discarded by a business, corporation, association, partnership, sole proprietorship, or any other entity conducting business for economic gain, or by an employee or agent of the entity.

(3)        "Law enforcement officer" means any law enforcement officer sworn and certified pursuant to Chapter 17C or 17E of the General Statutes, except company police officers as defined in G.S. 74E-6(b)(3). In addition, and solely for the purposes of this section, "law enforcement officer" means any employee of a county or municipality designated by the county or municipality as a litter enforcement officer.

(4)        "Litter" means any garbage, rubbish, trash, refuse, can, bottle, box, container, wrapper, paper, paper product, tire, appliance, mechanical equipment or part, building or construction material, tool, machinery, wood, motor vehicle or motor vehicle part, vessel, aircraft, farm machinery or equipment, sludge from a waste treatment facility, water supply treatment plant, or air pollution control facility, dead animal, or discarded material in any form resulting from domestic, industrial, commercial, mining, agricultural, or governmental operations. While being used for or distributed in accordance with their intended uses, "litter" does not include political pamphlets, handbills, religious tracts, newspapers, and other similar printed materials the unsolicited distribution of which is protected by the Constitution of the United States or the Constitution of North Carolina.

(5)        "Vehicle" has the same meaning as in G.S. 20-4.01(49).

(6)        "Watercraft" means any boat or vessel used for transportation across the water.

(j)         It shall be the duty of all law enforcement officers to enforce the provisions of this section.

(k)        This section does not limit the authority of any State or local agency to enforce other laws, rules or ordinances relating to litter or solid waste management. (1935, c. 457; 1937, c. 446; 1943, c. 543; 1951, c. 975, s. 1; 1953, cc. 387, 1011; 1955, c. 437; 1957, cc. 73, 175; 1959, c. 1173; 1971, c. 165; 1973, c. 877; 1977, c. 887, s. 1; 1979, c. 1065, s. 1; 1983, c. 890; 1987, cc. 208, 757; 1989, c. 784, ss. 7.1, 8; 1991, c. 609, s. 1; c. 720, s. 49; c. 725, s. 1; 1993, c. 539, ss. 266, 267, 1241; 1994, Ex. Sess., c. 24, s. 14(c); 1997-518, s. 1; 1998-217, s. 2; 1999-294, s. 4; 1999-454, s. 1; 2001-512, s. 1.)