Raleigh Traffic Stop

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The Raleigh Police Department recently put out a video on what to do in a traffic stop.  Below is a great review of the video from the NC School of Government.

As mentioned in a recent News Roundup, the Raleigh Police Department (RPD) produced a short video entitled “Traffic Stops: What to Expect as a Motorist,” instructing drivers who have been pulled over by law enforcement on how they should behave. It appears that the RPD had the laudable goal of educating the public to ensure the safety of both officers and motorists. Captain Bruce, the officer who narrates the video, states that “by following a few basic steps, the experience can progress without misunderstanding or conflict.” The video is garnering attention: As of today, it has received 8,446 views on YouTube, with “likes” outweighing “dislikes” 21 to 15. This blog offers legal commentary on a few of the points made in the video, using a scale of green light for what appear to be sound instructions, yellow light for instructions that may raise questions, and red light for an instruction that may prove misleading to citizens.



Standard for a traffic stop: The officer in the video correctly states that a traffic stop must be supported “by reasonable suspicion based on facts the officer can articulate.” While there was a line of North Carolina cases holding that a stop for a readily observable traffic stop must be supported by probable cause, those cases have been overruled. See State v. Styles, 362 N.C. 412 (2008). The stop depicted in the video is based on failure to stop at a stop sign, an infraction. G.S. 20-158(b)(1). The officer was justified in making the stop; I didn’t even see the car’s brake lights come on as the driver rolled through the stop sign and made a right turn. An officer might choose to give a warning rather than a citation as no cars or people were around and the driving wasn’t particularly risky, but the decision is up to the officer.
The duty to answer the stopping officer’s questions: The officer tells viewers, “Answer any questions the officer may have fully and clearly.” This directive gives me pause. Under North Carolina law, a person operating a motor vehicle must identify himself or herself when requested by an officer (or, for that matter, when requested by any other person in the event of an accident). G.S. 20-29. Unlike some other states, North Carolina has not enacted “stop and identify” statutes when a person is not operating a motor vehicle. See In re D.B., 214 N.C. App. 489, 495 (2011). However, the North Carolina Court of Appeals has held that the failure to identify oneself during a lawful stop can constitute resisting an officer when it hinders the officer in issuing a citation or otherwise completing the stop. State v. Friend, ___ N.C. App. ___, 768 S.E.2d 146, 148 (2014) (trial court properly denied the defendant’s motion to dismiss the charge of resisting, delaying, or obstructing an officer where the defendant, a passenger, refused to provide the officer with his identification so that the officer could issue a citation for a seatbelt violation). The court recognized that Fifth Amendment protections may justify a refusal to provide one’s identity in some circumstances, but didn’t provide examples. Id.
Beyond identifying oneself and providing license and registration, the law does not require a motorist to answer questions. While a driver may want to answer an officer’s questions to expedite the stop, he or she has the right to remain silent. See Berkemer v. McCarty, 468 U.S. 420, 439 (1984). Further, if the officer’s questions are unrelated to the purpose of the stop, prolong it, and are not supported by reasonable suspicion of a crime, they may violate the 4th amendment. Rodriguez v. United States, ___ U.S. ___, 135 S. Ct. 1609 (2015); see also U.S. v. Guijon-Ortiz, 660 F.3d 757 (4th Cir. 2010) (police questioning may exceed the permissible scope of the stop where officer abandons prosecution of traffic stop and embarks on another course of investigation). For example, an officer may not extend a routine traffic stop to ask questions about drug activity.
Generally, Miranda protections don’t apply to questioning of a motorist during a routine traffic stop because the motorist isn’t in custody. Berkemer v. McCarty, 468 U.S. 420, 440 (1984). However, Miranda warnings are required if the officer arrests the driver or takes actions that constitute the functional equivalent of an arrest.
Consent searches: In the video, after the infraction has been addressed and the traffic stop completed, the officer seeks consent to extend the interaction: “Sir, at this point, you’re free to leave, but what I’d like to do with your permission is just have you step to the rear of your car and just talk with you for a few more minutes.” The driver is agreeable: “OK, sure, that’s no problem.” The officer then asks for permission to pat down the driver’s clothing and search his car.
As the video only depicts consent searches that take place after the stop has ended, there is no discussion of the legal justification that is required to support a frisk of an occupant or search of a car before a stop has ended, or the constitutional limitations on extending a stop and continuing to detain a person once the purpose of the stop has been completed, described in this recent post. See also Jeff Welty, Traffic Stops (2015); 1 North Carolina Defender Manual Ch. 15 (Stops and Warrantless Searches) (2d ed. 2013). In addition, while the narrator states that a motorist has the right to permit or refuse a vehicle search, the action suggests the right thing to do is consent; after all, this is a video demonstrating steps that motorists should follow in order to stay safe, as the narrator indicated at the outset.
As we describe in the manual Raising Issues of Race in North Carolina Criminal Cases (in section 2.7C), consent searches during traffic stops have become increasingly commonplace and officers have broad discretion in deciding who to ask for such consent. Concerns about misuse of this discretion for racial profiling have prompted some states to pass legislation banning the use of consent searches. See The Fourth Amendment and Antidilution: Confronting the Overlooked Function of the Consent Search Doctrine, 119 Harv. L. Rev. 2187, 2187–88 (2006). Questions have been raised about whether motorists actually believe they can decline an officer’s request to consent; some citizens who are confronted with an armed, uniformed officer may feel that submission is compulsory. In North Carolina, to ensure that motorists understand they have the right to decline, some police departments now have a policy that officers must obtain a driver’s signature on a consent form when seeking consent to search. In October 2014, Durham became the second city in the state (following Fayetteville) to adopt a written consent form policy. For data about the impact of this change, see Frank R. Baumgartner, Derek A. Epp, and Kelsey Shoub, Summary of Durham Stops and Searches Before and After Written Consent Policy Reform of October 1, 2014 at p. 4 (2015) (finding that consent searches declined substantially in the first six months after the policy went into effect; however, a corresponding increase occurred in probable cause searches, resulting in no change in search rates during traffic stops overall).
To name the elephant in the reel, the video portrays an African American man being stopped for a minor traffic offense who behaves in a courteous and cooperative manner throughout the encounter. Nonetheless, a backup unit is called, he is asked to get out of his car, he is subjected to a pat down, and he is instructed to sit on the curb with his legs extended and his hands on his knees while his car is searched. Giving the RPD the benefit of the doubt, the action may unfold in this way because the Department wanted to show the range of police actions that may follow a traffic stop. Nonetheless, this dramatization merits a red light to stop and consider the issues, especially in light of data from approximately 13 million North Carolina traffic stops indicating that, compared to White motorists, Black and Latino motorists and passengers are almost twice as likely to be searched following a traffic stop. See Frank R. Baumgartner & Derek Epp, North Carolina Traffic Stop Statistics Analysis: Final Report to the North Carolina Advocates for Justice Task Force on Racial and Ethnic Bias at p. 5 (2012).
Contacting Internal Affairs: The video ends by encouraging members of the community to contact the RPD Internal Affairs Unit (led by the narrator Captain Bruce) with any complaints about discourteous or inappropriate conduct by officers, and it provides contact information. This is an important public service announcement as many citizens may believe that they have no recourse when an officer fails to follow the law and departmental policies. Results of internal affairs investigations may be discoverable in some cases and may help determine whether a particular officer has selectively enforced the law, e.g., in deciding which motorists to stop or search. See Raising Issues of Race § 2.3D (discussing this issue). I therefore end by giving a green light to the RPD for “taking the Police Department’s integrity and [the Internal Affairs Unit’s] role in helping to preserve it seriously.”

EXPUNGEMENT OF DWI IN NORTH CAROLINA

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Great article on the changing law of expungments of DWIs in North Carolina from Shea Denning at the NC School of Government.

If you’ve been dragging your feet about having an old DWI expunged, you had better hurry up. A law enacted last week removes convictions for offenses involving impaired driving from the types of convictions that may be expunged. The change is effective for petitions filed or pending on or after December 1, 2015. So if you are eligible for such an expunction, your window of opportunity is closing fast.  Read on to find about the other changes S.L. 2015-150 makes to the state’s DWI laws.
No statutory deferred prosecution or conditional discharge for DWI.  G.S. 15A-1341 sets forth a statutory scheme pursuant to which certain defendants may be placed on probation as part of a deferred prosecution agreement or as part of an agreement following a determination of the defendant’s guilt. This first type of agreement and probation commonly is referred to as “statutory deferred prosecution” so as to distinguish it from other ad hoc deferred prosecution arrangements that may be entered into by a district attorney and a criminal defendant. The second is commonly called a “conditional discharge.” A defendant’s successful completion of probation leads to dismissal of the charges under either arrangement. See G.S. 15A-1342(i) (granting a defendant immunity from prosecution upon the expiration of probation imposed after deferral of prosecution). Charges are dismissed by the prosecutor if the defendant is placed on probation before entering a plea. See G.S. 15A-1341(a1), (a2). Charges are dismissed by the court and the defendant discharged if the defendant pleads or is found guilty before being placed on probation.  See G.S. 15A-1341(a4), (a5), (a6).
Two groups of defendants are eligible for statutory deferred prosecution and conditional discharge. Jamie described the first type of defendant in this post.  In general, these are defendants charged with a low-level felony or a misdemeanor offense who have not previously been convicted of a felony or a misdemeanor involving moral turpitude.  The second type of defendant is one who is eligible for a drug treatment court program established pursuant to the North Carolina Drug Treatment Court Act.
Some defendants charged with DWI under G.S. 20-138.1 qualify under either category. DWI is a misdemeanor offense and the legislature has identified reducing alcohol dependence crimes such as DWI as a central purpose of drug treatment courts.
However, S.L. 2015-150 amends G.S. 15A-1341 to provide that defendants charged with or convicted of misdemeanor DWI are not eligible for statutory deferred prosecution or conditional discharge. The amendments are effective for orders placing a defendant on probation on or after December 1, 2015.
Re-sentencing not always required on remand. The legislature enacted G.S. 20-38.7 in 2006 to prevent a defendant from escaping enhanced punishment in a DWI case by appealing a prior DWI conviction to  superior court and then withdrawing the appeal after he was sentenced for a subsequent DWI. When that occurred, a defendant benefited from two low-level DWI sentences, neither of which was enhanced by the prior conviction. Current G.S. 20-38.7 provides that district court sentences for DWI are vacated upon the giving of notice of appeal and requires a district court to hold a new sentencing hearing and consider new convictions when a DWI appeal to superior court is withdrawn or a case is remanded from superior to district court. But because DWIs aren’t always appealed to superior court solely for the purpose of dodging sentencing enhancements for prior convictions, G.S. 20-38.7 requires resentencing in some circumstances where the parties agree there are no new sentencing factors for the court to consider.  S.L. 2015-150 amends G.S. 20-38.7(c) to provide that a district court sentence is not vacated and no new sentencing hearing is required if the appeal is properly withdrawn and the case remanded and the prosecutor has certified to the clerk in writing that she has no new sentencing factors to offer the court.  These amendments are effective for appeals filed on or after December 1, 2015.
Stay tuned as the session wraps up for posts on other significant DWI and motor vehicle legislation.
 

DWI VEHICLE SEISURE

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If you are charged with DWI and your license is revoked or you have no insurance, your car can be impounded and sold by the state.  The procedure is very specific as can be seen in the statute below.  If you are in this situation, you should contact an attorney immediately.

§ 20-28.3.  Seizure, impoundment, forfeiture of motor vehicles for offenses involving impaired driving while license revoked or without license and insurance, and for felony speeding to elude arrest.

(a)        Motor Vehicles Subject to Seizure for Impaired Driving Offenses. -

A motor vehicle that is driven by a person who is charged with an offense involving impaired driving is subject to seizure if:

(1)        At the time of the violation, the drivers license of the person driving the motor vehicle was revoked as a result of a prior impaired driving license revocation as defined in G.S. 20-28.2(a); or

(2)        At the time of the violation:

a.         The person was driving without a valid drivers license, and

b.         The driver was not covered by an automobile liability policy.

For the purposes of this subsection, a person who has a complete defense, pursuant to G.S. 20-35, to a charge of driving without a drivers license, shall be considered to have had a valid drivers license at the time of the violation.

(a1)      Motor Vehicles Subject to Seizure for Felony Speeding to Elude Arrest. - A motor vehicle is subject to seizure if it is driven by a person who is charged with the offense of felony speeding to elude arrest pursuant to G.S. 20-141.5(b) or (b1).

(b)        Duty of Officer. - If the charging officer has probable cause to believe that a motor vehicle driven by the defendant may be subject to forfeiture under this section, the officer shall seize the motor vehicle and have it impounded. If the officer determines prior to seizure that the motor vehicle had been reported stolen, the officer shall not seize the motor vehicle pursuant to this section. If the officer determines prior to seizure that the motor vehicle was a rental vehicle driven by a person not listed as an authorized driver on the rental contract, the officer shall not seize the motor vehicle pursuant to this section, but shall make a reasonable effort to notify the owner of the rental vehicle that the vehicle was stopped and that the driver of the vehicle was not listed as an authorized driver on the rental contract. Probable cause may be based on the officer's personal knowledge, reliable information conveyed by another officer, records of the Division, or other reliable sources. The seizing officer shall notify the Division as soon as practical but no later than 24 hours after seizure of the motor vehicle of the seizure in accordance with procedures established by the Division.

(b1)      Written Notification of Impoundment. - Within 48 hours of receipt within regular business hours of the notice of seizure, the Division shall issue written notification of impoundment to any lienholder of record and to any motor vehicle owner who was not operating the motor vehicle at the time of the offense. A notice of seizure received outside regular business hours shall be considered to have been received at the start of the next business day. The notification of impoundment shall be sent by first-class mail to the most recent address contained in the Division's records. If the motor vehicle is registered in another state, notice shall be sent to the address shown on the records of the state where the motor vehicle is registered. This written notification shall provide notice that the motor vehicle has been seized, state the reason for the seizure and the procedure for requesting release of the motor vehicle. Additionally, if the motor vehicle was damaged while the operator was committing an offense resulting in seizure or incident to the seizure, the Division shall issue written notification of the seizure to the owner's insurance company of record and to any other insurance companies that may be insuring other motor vehicles involved in the accident. The Division shall prohibit title to a seized motor vehicle from being transferred by a motor vehicle owner unless authorized by court order.

(b2)      Additional Notification to Lienholders. - In addition to providing written notification pursuant to subsection (b1) of this section, within eight hours of receipt within regular business hours of the notice of seizure, the Division shall notify by facsimile any lienholder of record that has provided the Division with a designated facsimile number for notification of impoundment. The facsimile notification of impoundment shall state that the vehicle has been seized, state the reason for the seizure, and notify the lienholder of the additional written notification that will be provided pursuant to subsection (b1) of this section. The Division shall establish procedures to allow a lienholder to provide one designated facsimile number for notification of impoundment for any vehicle for which the lienholder is a lienholder of record and shall maintain a centralized database of the provided facsimile numbers. The lienholder must provide a facsimile number at which the Division may give notification of impoundment at anytime.

(c)        Review by Magistrate. - Upon determining that there is probable cause for seizing a motor vehicle, the seizing officer shall present to a magistrate within the county where the driver was charged an affidavit of impoundment setting forth the basis upon which the motor vehicle has been or will be seized for forfeiture. The magistrate shall review the affidavit of impoundment and if the magistrate determines the requirements of this section have been met, shall order the motor vehicle held. The magistrate may request additional information and may hear from the defendant if the defendant is present. If the magistrate determines the requirements of this section have not been met, the magistrate shall order the motor vehicle released to a motor vehicle owner upon payment of towing and storage fees. If the motor vehicle has not yet been seized, and the magistrate determines that seizure is appropriate, the magistrate shall issue an order of seizure of the motor vehicle. The magistrate shall provide a copy of the order of seizure to the clerk of court. The clerk shall provide copies of the order of seizure to the district attorney and the attorney for the county board of education.

(c1)      Effecting an Order of Seizure. - An order of seizure shall be valid anywhere in the State. Any officer with territorial jurisdiction and who has subject matter jurisdiction for violations of this Chapter may use such force as may be reasonable to seize the motor vehicle and to enter upon the property of the defendant to accomplish the seizure. An officer who has probable cause to believe the motor vehicle is concealed or stored on private property of a person other than the defendant may obtain a search warrant to enter upon that property for the purpose of seizing the motor vehicle.

(d)        Custody of Motor Vehicle. - Unless the motor vehicle is towed pursuant to a statewide or regional contract, or a contract with the county board of education, the seized motor vehicle shall be towed by a commercial towing company designated by the law enforcement agency that seized the motor vehicle. Seized motor vehicles not towed pursuant to a statewide or regional contract or a contract with a county board of education shall be retrieved from the commercial towing company within a reasonable time, not to exceed 10 days, by the county board of education or their agent who must pay towing and storage fees to the commercial towing company when the motor vehicle is retrieved. If either a statewide or regional contractor, or the county board of education, chooses to contract for local towing services, all towing companies on the towing list for each law enforcement agency with jurisdiction within the county shall be given written notice and an opportunity to submit proposals prior to a contract for local towing services being awarded. The seized motor vehicle is under the constructive possession of the county board of education for the county in which the operator of the vehicle is charged at the time the vehicle is delivered to a location designated by the county board of education or delivered to its agent pending release or sale, or in the event a statewide or regional contract is in place, under the constructive possession of the Department of Public Instruction, on behalf of the State at the time the vehicle is delivered to a location designated by the Department of Public Instruction or delivered to its agent pending release or sale. Absent a statewide or regional contract that provides otherwise, each county board of education may elect to have seized motor vehicles stored on property owned or leased by the county board of education and charge a reasonable fee for storage, not to exceed ten dollars ($10.00) per day. In the alternative, the county board of education may contract with a commercial towing and storage facility or other private entity for the towing, storage, and disposal of seized motor vehicles, and a storage fee of not more than ten dollars ($10.00) per day may be charged. Except for gross negligence or intentional misconduct, the county board of education, or any of its employees, shall not be liable to the owner or lienholder for damage to or loss of the motor vehicle or its contents, or to the owner of personal property in a seized vehicle, during the time the motor vehicle is being towed or stored pursuant to this subsection.

(e)        Release of Motor Vehicle Pending Trial. - A motor vehicle owner, other than the driver at the time of the underlying offense resulting in the seizure, may apply to the clerk of superior court in the county where the charges are pending for pretrial release of the motor vehicle.

The clerk shall release the motor vehicle to a nondefendant motor vehicle owner conditioned upon payment of all towing and storage charges incurred as a result of seizure and impoundment of the motor vehicle under the following conditions:

(1)        The motor vehicle has been seized for not less than 24 hours;

(2)        Repealed by Session Laws 1998-182, s. 3, effective December 1, 1998.

(3)        A bond in an amount equal to the fair market value of the motor vehicle as defined by G.S. 20-28.2 has been executed and is secured by a cash deposit in the full amount of the bond, by a recordable deed of trust to real property in the full amount of the bond, by a bail bond under G.S. 58-71-1(2), or by at least one solvent surety, payable to the county school fund and conditioned on return of the motor vehicle, in substantially the same condition as it was at the time of seizure and without any new or additional liens or encumbrances, on the day of any hearing scheduled and noticed by the district attorney under G.S. 20-28.2(c), unless the motor vehicle has been permanently released;

(4)        Execution of either:

a.         An impaired driving acknowledgment as described in G.S. 20-28.2(a1)(1a) if the seizure was for an offense involving impaired driving; or

b.         A speeding to elude arrest acknowledgment as defined in G.S. 20-28.2(a1)(8) if the seizure was for violation of G.S. 20-141.5(b) or (b1).

(5)        A check of the records of the Division indicates that the requesting motor vehicle owner has not previously executed an acknowledgment naming the operator of the seized motor vehicle; and

(6)        A bond posted to secure the release of this motor vehicle under this subsection has not been previously ordered forfeited under G.S. 20-28.5.

In the event a nondefendant motor vehicle owner who obtains temporary possession of a seized motor vehicle pursuant to this subsection does not return the motor vehicle on the day of the forfeiture hearing as noticed by the district attorney under G.S. 20-28.2(c) or otherwise violates a condition of pretrial release of the seized motor vehicle as set forth in this subsection, the bond posted shall be ordered forfeited and an order of seizure shall be issued by the court. Additionally, a nondefendant motor vehicle owner or lienholder who willfully violates any condition of pretrial release may be held in civil or criminal contempt.

(e1)      Pretrial Release of Motor Vehicle to Innocent Owner. - A nondefendant motor vehicle owner may file a petition with the clerk of court seeking a pretrial determination that the petitioner is an innocent owner. The clerk shall consider the petition and make a determination as soon as may be feasible. At any proceeding conducted pursuant to this subsection, the clerk is not required to determine the issue of forfeiture, only the issue of whether the petitioner is an innocent owner. If the clerk determines that the petitioner is an innocent owner, the clerk shall release the motor vehicle to the petitioner subject to the same conditions as if the petitioner were an innocent owner under G.S. 20-28.2(e). The clerk shall send a copy of the order authorizing or denying release of the vehicle to the district attorney and the attorney for the county board of education. An order issued under this subsection finding that the petitioner failed to establish that the petitioner is an innocent owner may be reconsidered by the court as part of the forfeiture hearing conducted pursuant to G.S. 20-28.2(d).

(e2)      Pretrial Release of Motor Vehicle to Defendant Owner. -

(1)        If the seizure was for an offense involving impaired driving, a defendant motor vehicle owner may file a petition with the clerk of court seeking a pretrial determination that the defendant's license was not revoked pursuant to an impaired driving license revocation as defined in G.S. 20-28.2(a). The clerk shall schedule a hearing before a judge of the division in which the underlying criminal charge is pending for a hearing to be held within 10 business days or as soon thereafter as may be feasible. Notice of the hearing shall be given to the defendant, the district attorney, and the attorney for the county board of education. The clerk shall forward a copy of the petition to the district attorney for the district attorney's review. If, based on available information, the district attorney determines that the defendant's motor vehicle is not subject to forfeiture, the district attorney may note the State's consent to the release of the motor vehicle on the petition and return the petition to the clerk of court who shall enter an order releasing the motor vehicle to the defendant upon payment of all towing and storage charges incurred as a result of the seizure and impoundment of the motor vehicle, subject to the satisfactory proof of the identity of the defendant as a motor vehicle owner and the existence of financial responsibility to the extent required by Article 13 of this Chapter, and no hearing shall be held. The clerk shall send a copy of the order of release to the attorney for the county board of education. At any pretrial hearing conducted pursuant to this subdivision, the court is not required to determine the issue of the underlying offense of impaired driving only the existence of a prior drivers license revocation as an impaired driving license revocation. Accordingly, the State shall not be required to prove the underlying offense of impaired driving. An order issued under this subdivision finding that the defendant failed to establish that the defendant's license was not revoked pursuant to an impaired driving license revocation as defined in G.S. 20-28.2(a) may be reconsidered by the court as part of the forfeiture hearing conducted pursuant to G.S. 20-28.2(d).

(2)        If the seizure was for a felony speeding to elude arrest offense, a defendant motor vehicle owner may apply to the clerk of superior court in the county where the charges are pending for pretrial release of the motor vehicle. The clerk shall release the motor vehicle to the defendant motor vehicle owner conditioned upon payment of all towing and storage charges incurred as a result of seizure and impoundment of the motor vehicle under the following conditions:

a.         The motor vehicle has been seized for not less than 24 hours;

b.         A bond in an amount equal to the fair market value of the motor vehicle as defined by G.S. 20-28.2 has been executed and is secured by a cash deposit in the full amount of the bond, by a recordable deed of trust to real property in the full amount of the bond, by a bail bond under G.S. 58-71-1(2), or by at least one solvent surety, payable to the county school fund and conditioned on return of the motor vehicle, in substantially the same condition as it was at the time of seizure and without any new or additional liens or encumbrances, on the day of any hearing scheduled and noticed by the district attorney under G.S. 20-28.2(c), unless the motor vehicle has been permanently released;

c.         A bond posted to secure the release of this motor vehicle under this subdivision has not been previously ordered forfeited under G.S. 20-28.5.

In the event a defendant motor vehicle owner who obtains temporary possession of a seized motor vehicle pursuant to this subdivision does not return the motor vehicle on the day of the forfeiture hearing as noticed by the district attorney under G.S. 20-28.2(c) or otherwise violates a condition of pretrial release of the seized motor vehicle as set forth in this subdivision, the bond posted shall be ordered forfeited, and an order of seizure shall be issued by the court. Additionally, a defendant motor vehicle owner who willfully violates any condition of pretrial release may be held in civil or criminal contempt.

(e3)      Pretrial Release of Motor Vehicle to Lienholder. -

(1)        A lienholder may file a petition with the clerk of court requesting the court to order pretrial release of a seized motor vehicle. The lienholder shall serve a copy of the petition on all interested parties which shall include the registered owner, the titled owner, the district attorney, and the county board of education attorney. Upon 10 days' prior notice of the date, time, and location of the hearing sent by the lienholder to all interested parties, a judge, after a hearing, shall order a seized motor vehicle released to the lienholder conditioned upon payment of all towing and storage costs incurred as a result of the seizure and impoundment of the motor vehicle if the judge determines, by the greater weight of the evidence, that:

a.         Default on the obligation secured by the motor vehicle has occurred;

b.         As a consequence of default, the lienholder is entitled to possession of the motor vehicle;

c.         The lienholder agrees to sell the motor vehicle in accordance with the terms of its agreement and pursuant to the provisions of Part 6 of Article 9 of Chapter 25 of the General Statutes. Upon sale of the motor vehicle, the lienholder will pay to the clerk of court of the county in which the driver was charged all proceeds from the sale, less the amount of the lien in favor of the lienholder, and any towing and storage costs paid by the lienholder;

d.         The lienholder agrees not to sell, give, or otherwise transfer possession of the seized motor vehicle while the motor vehicle is subject to forfeiture, or the forfeited motor vehicle after the forfeiture hearing, to the defendant or the motor vehicle owner; and

e.         The seized motor vehicle while the motor vehicle is subject to forfeiture, or the forfeited motor vehicle after the forfeiture hearing, had not previously been released to the lienholder as a result of a prior seizure involving the same defendant or motor vehicle owner.

(2)        The clerk of superior court may order a seized vehicle released to the lienholder conditioned upon payment of all towing and storage costs incurred as a result of the seizure and impoundment of the motor vehicle at any time when all interested parties have, in writing, waived any rights that they may have to notice and a hearing, and the lienholder has agreed to the provision of subdivision (1)d. above. A lienholder who refuses to sell, give, or transfer possession of a seized motor vehicle while the motor vehicle is subject to forfeiture, or a forfeited motor vehicle after the forfeiture hearing, to:

a.         The defendant;

b.         The motor vehicle owner who owned the motor vehicle immediately prior to seizure pending the forfeiture hearing, or to forfeiture after the forfeiture hearing; or

c.         Any person acting on the behalf of the defendant or the motor vehicle owner,

shall not be liable for damages arising out of such refusal. However, any subsequent violation of the conditions of release by the lienholder shall be punishable by civil or criminal contempt.

(f),        (g) Repealed by Session Laws 1998-182, s. 3, effective December 1, 1998.

(h)        Insurance Proceeds. - In the event a motor vehicle is damaged incident to the conduct of the defendant which gave rise to the defendant's arrest and seizure of the motor vehicle pursuant to this section, the county board of education, or its authorized designee, is authorized to negotiate the county board of education's interest with the insurance company and to compromise and accept settlement of any claim for damages. Property insurance proceeds accruing to the defendant, or other owner of the seized motor vehicle, shall be paid by the responsible insurance company directly to the clerk of superior court in the county where the motor vehicle driver was charged. If the motor vehicle is declared a total loss by the insurance company liable for the damages to the motor vehicle, the clerk of superior court, upon application of the county board of education, shall enter an order that the motor vehicle be released to the insurance company upon payment into the court of all insurance proceeds for damage to the motor vehicle after payment of towing and storage costs and all valid liens. The clerk of superior court shall provide the Division with a certified copy of the order entered pursuant to this subsection, and the Division shall transfer title to the insurance company or to such other person or entity as may be designated by the insurance company. Insurance proceeds paid to the clerk of court pursuant to this subsection shall be subject to forfeiture pursuant to G.S. 20-28.5 and shall be disbursed pursuant to further orders of the court. An affected motor vehicle owner or lienholder who objects to any agreed upon settlement under this subsection may file an independent claim with the insurance company for any additional monies believed owed. Notwithstanding any other provisions in this Chapter, nothing in this section or G.S. 20-28.2 shall require an insurance company to make payments in excess of those required pursuant to its policy of insurance on the seized motor vehicle.

(i)         Expedited Sale of Seized Motor Vehicles in Certain Cases. - In order to avoid additional liability for towing and storage costs pending resolution of the criminal proceedings of the defendant, the county board of education may, after expiration of 90 days from the date of seizure, sell any motor vehicle having a fair market value of one thousand five hundred dollars ($1,500) or less. The county board of education may also sell a motor vehicle, regardless of the fair market value, any time the outstanding towing and storage costs exceed eighty-five percent (85%) of the fair market value of the vehicle, or with the consent of all the motor vehicle owners. Any sale conducted pursuant to this subsection shall be conducted in accordance with the provisions of G.S. 20-28.5(a), and the proceeds of the sale, after the payment of outstanding towing and storage costs or reimbursement of towing and storage costs paid by a person other than the defendant, shall be deposited with the clerk of superior court. If an order of forfeiture is entered by the court, the court shall order the proceeds held by the clerk to be disbursed as provided in G.S. 20-28.5(b). If the court determines that the motor vehicle is not subject to forfeiture, the court shall order the proceeds held by the clerk to be disbursed first to pay the sale, towing, and storage costs, second to pay outstanding liens on the motor vehicle, and the balance to be paid to the motor vehicle owners.

(j)         Retrieval of Certain Personal Property. - At reasonable times, the entity charged with storing the motor vehicle may permit owners of personal property not affixed to the motor vehicle to retrieve those items from the motor vehicle, provided satisfactory proof of ownership of the motor vehicle or the items of personal property is presented to the storing entity.

(k)        County Board of Education Right to Appear and Participate in Proceedings. - The attorney for the county board of education shall be given notice of all proceedings regarding offenses related to a motor vehicle subject to forfeiture under this section. However, the notice requirement under this subsection does not apply to proceedings conducted under G.S. 20-28.3(e1). The attorney for the county board of education shall also have the right to appear and to be heard on all issues relating to the seizure, possession, release, forfeiture, sale, and other matters related to the seized vehicle under this section. With the prior consent of the county board of education, the district attorney may delegate to the attorney for the county board of education any or all of the duties of the district attorney under this section. Clerks of superior court, law enforcement agencies, and all other agencies with information relevant to the seizure, impoundment, release, or forfeiture of motor vehicles are authorized and directed to provide county boards of education with access to that information and to do so by electronic means when existing technology makes this type of transmission possible.

(l)         Payment of Fees Upon Conviction. - If the driver of a motor vehicle seized pursuant to this section is convicted of the underlying offense resulting in the seizure of a motor vehicle pursuant to this section, the defendant shall be ordered to pay as restitution to the county board of education, the motor vehicle owner, or the lienholder the cost paid or owing for the towing, storage, and sale of the motor vehicle to the extent the costs were not covered by the proceeds from the forfeiture and sale of the motor vehicle. If the underlying offense resulting in the seizure is felony speeding to elude arrest pursuant to G.S. 20-141.5(b) or (b1) and the defendant's conviction is for misdemeanor speeding to elude arrest pursuant to G.S. 20-141.5(a), whether or not the reduced charge is by plea agreement, the defendant shall be ordered to pay as restitution to the county board of education, the motor vehicle owner, or the lienholder the cost paid or owing for the towing and storage of the motor vehicle. In addition, a civil judgment for the costs under this section in favor of the party to whom the restitution is owed shall be docketed by the clerk of superior court. If the defendant is sentenced to an active term of imprisonment, the civil judgment shall become effective and be docketed when the defendant's conviction becomes final. If the defendant is placed on probation, the civil judgment in the amount found by a judge during the probation revocation or termination hearing to be due shall become effective and be docketed by the clerk when the defendant's probation is revoked or terminated.

(m)       Trial Priority. - District court trials of offenses involving forfeitures of motor vehicles pursuant to G.S. 20-28.2 shall be scheduled on the arresting officer's next court date or within 30 days of the offense, whichever comes first.

Once scheduled, the case shall not be continued unless all of the following conditions are met:

(1)        A written motion for continuance is filed with notice given to the opposing party prior to the motion being heard.

(2)        The judge makes a finding of a "compelling reason" for the continuance.

(3)        The motion and finding are attached to the court case record.

Upon a determination of guilt, the issue of vehicle forfeiture shall be heard by the judge immediately, or as soon thereafter as feasible, and the judge shall issue the appropriate orders pursuant to G.S. 20-28.2(d).

Should a defendant appeal the conviction to superior court, any party who has not previously been heard on a petition for pretrial release under subsection (e1) or (e3) of this section or any party whose motor vehicle has not been the subject of a forfeiture hearing held pursuant to G.S. 20-28.2(d) may be heard on a petition for pretrial release pursuant to subsection (e1) or (e3) of this section. The provisions of subsection (e) of this section shall also apply to seized motor vehicles pending trial in superior court. Where a motor vehicle was released pursuant to subsection (e) of this section pending trial in district court, the release of the motor vehicle continues, and the terms and conditions of the original bond remain the same as those required for the initial release of the motor vehicle under subsection (e) of this section, pending the resolution of the underlying offense involving impaired driving in superior court.

(n)        Any order issued pursuant to this section authorizing the release of a seized vehicle shall require the payment of all towing and storage charges incurred as a result of the seizure and impoundment of the motor vehicle. This requirement shall not be waived.  (1997-379, s. 1.2; 1997-456, s. 31; 1998-182, s. 3; 1998-217, s. 62(a)-(c); 2000-169, s. 29; 2001-362, ss. 1, 2, 3, 4, 5, 6; 2001-487, s. 9; 2006-253, s. 32; 2013-243, s. 2.)

Can I be charged with Driving While License revoked if I never had a license.

www.kisslinglaw.com
Great article on Driving while license revoked.  This was written by another attorney but I am posting it due to its relevance
Perhaps one of the most misunderstood and misinterpreted laws is North Carolina General Statute 20-28, the offense of Driving While License Revoked.  Countless people have asked how it is possible for them to be charged with Driving While License Revoked, when they have never had a license.  Other people have come  with suspension letters from the Department of Motor Vehicles after they represented themselves and paid considerable amounts of money, with the hope that they would be able to obtain their license.  Most people mistakenly think that their issue is simple enough that can handle it without an attorney, but the offense of Driving While License Revoked is not as clear as it appears to be.  While it is a traffic ticket, it’s also a misdemeanor charge with serious penalties.  Upon first glance it appears to be a harmless ticket, but if it’s handled in the wrong manner, the consequences can be devastating.
Causes of suspension or revocation
First of all, it is important to understand what causes a person’s license to be revoked or suspended, and there are certainly several reasons that may contribute to the revocation.  Many times, it begins with something as simple as failing to appear in court for some minor traffic offense or failing to pay the fine, court costs, or applicable fees that were ordered to resolve a traffic offense where the person actually did appear in court and resolved the case.  In those instances, a person is indefinitely suspended which means that there is no definite period of revocation, and the license can be restored upon complying with the failure to appear or the failure to pay the ordered costs.   Other times, a revocation may result from a prior impaired driving conviction where there was a failure to comply with the terms and conditions of that conviction which requires among other things, a substance abuse assessment and the completion of any recommendations by that assessing agency.  Finally, being convicted of a “moving” violation during a period of suspension will also result in an additional period of revocation, and moving violations are not just convictions for speeding tickets.  Moving violations also include convictions for driving a vehicle without liability insurance.  The problem, however, is that many people don’t comply due to financial hardship, neglect or plain inattention, and they continue driving.  Inevitably, they are pulled over for some other traffic offense or they go through a license check, and then they are charged with the offense of Driving While License Revoked.  For some people, that initial charge of Driving While License Revoked is enough to encourage them to call an attorney for assistance to resolve these issues, while other people continue driving and accumulate more and more charges.
 Penalties and Consequences
So just how serious is the offense of Driving While License Revoked?  In North Carolina, the offense of Driving While License Revoked is a misdemeanor offense.  Under North Carolina law, the most serious misdemeanors are class A1 misdemeanors, and some of the most common A1 misdemeanors are Driving While Impaired, Assault on a Female, and Misdemeanor Child Abuse.  While a conviction for Driving While Impaired carries a maximum sentence of three years, the remaining A1 misdemeanors carry a maximum sentence of 150 days.  The next most serious misdemeanors are class 1 misdemeanors which carry a maximum sentence of 120 days, followed by class 2 misdemeanors (60 days) and class 3 misdemeanors (20 days).  The most common class 1 misdemeanors are Misdemeanor Larceny, Possession of Drug Paraphernalia, and Driving While License Revoked.  Some of the more serious class 2 misdemeanors are Simple Assault and Carrying a Concealed Weapon, while some of the most common class 3 misdemeanors are Shoplifting, Discharging a Firearm in City Limits, and Possession up Marijuna up to 1/2 ounce.  So why do I mention all of these other classes of misdemeanors and offenses?  I mentioned them to demonstrate that it is possible to receive a stiffer jail sentence for driving on a revoked license than it is to be convicted of assaulting someone, carrying a concealed handgun, or even possessing a small amount of marijuana.  Does that mean that every person who is charged with Driving While Revoked receives a jail sentence of 120 days?  No.  In fact, in the years that I’ve been practicing law I have only personally experienced one individual who received the maximum sentence of 120 days for the offense of Driving While License Revoked, and he represented himself instead of hiring an attorney.  I was later hired to appeal his case, and he was able to receive a probationary sentence.
In addition to the possibility of receiving an active sentence, the first conviction for Driving While Revoked will result in a suspension of one year for the first offense.  That definite suspension means that the DMV will not issue a license until after that one-year period has passed.  An additional two years will be added to that suspension for a second conviction, and a third conviction will result in a permanent revocation.  While a permanent suspension does not actually mean you will never be able to obtain a license, you will have to wait three years to apply for a license, and there is no guarantee that your license will be reinstated at that time.  I agree that we should all have a valid license before we operate a motor vehicle, but I also understand the necessity for people to be able to drive to take care of their families and to handle the countless responsibilities that our lives require us to fulfill.   A conviction of Driving While License Revoked includes serious consequences that sometimes result in unduly burdensome results.  As an attorney, I cannot change the law as it currently stands, but I can help you navigate your way through it, so that your rights are properly protected.  In fact, you may be closer to having your license reinstated that you realize.  Therefore, if you are charged with Driving While License Revoked, give us a call before you simply plead guilty or try to handle these cases by yourself.  Your ability to drive is just too important.

Texting While Driving in North Carolina

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There is much talk about driving while texting.  The North Carolina law has many loop holes and is hard to prove.  Below is an article from WRAL about the issue.

Raleigh, N.C. — More than 3,000 people die and more than a quarter-million are injured in the U.S. each year in crashes involving texting while driving, according to the Harvard Center for Risk Analysis. Despite the danger, many people still text behind the wheel, but punishing them isn’t always easy.
A recent study by Forbes Business found that 47 percent of adults admit they text while driving and that 58 percent of high school seniors text friends instead of paying attention to the road. Despite those numbers, few people are ever charged.
North Carolina is one of 40 states that have laws against texting while driving. In North Carolina, it is a primary offense, meaning drivers can get pulled over if an officer sees them texting on the road. But getting charged is one thing. Getting convicted isn't so simple.
Last year, 1,458 people were cited with texting while driving in Wake County – about 300 more than the previous year. In 2011, fewer than 900 drivers were cited. Interim Wake County District Attorney Ned Mangum and other prosecutors say they hope those numbers will act as a deterrent.
“The more people that are aware that texting while driving is dangerous is better for the public, and the less people that do it, the safer the roads will be,” Mangum said.
Law enforcement officers hope to send the same message with more crackdowns on distracted drivers. During a recent campaign in Cary, 80 drivers were pulled over, but not everyone received a ticket.
WRAL Investigates found many drivers who were cited didn’t end up paying the price.
Christopher Lynn was cited for texting while driving, but his case was thrown out. He says he was looking at a map on his phone, not texting.
“Ultimately, the law is rather toothless,” Lynn said. “What I did was trace along the road I thought I was on (on the phone) … When I looked up, there was some lights behind me, and (the officer) said I was texting while driving.”
Of the 1,367 cases that were disposed of last year in Wake County, almost half of the drivers paid the $290 in fines and court costs. In many of the remaining cases, drivers fought and won.
“In all honesty, I could have accepted the charge, but why accept something that I didn’t do?” Lynn asked.
There's plenty of gray area in the law.
“The way the statute is written, it’s very difficult to prove beyond a reasonable doubt in court,” White said. “In order to show you were using your phone to text or emailing, they would have to have a search warrant.”
If an officer asks to see the phone, the driver does not have to hand it over.
“You can decline,” White said.
In North Carolina, the texting law applies only to moving vehicles. Drivers who are legally stopped at a red light can text and email. Drivers who are in a moving vehicle cannot text or email, but they are allowed to type into their phone's GPS and search for contacts.
That distinction makes it tough on prosecutors.
“It’s hard for a police officer to tell if you’re inputting numbers or are you text messaging someone when you’re looking at your phone,” Mangum said.
The law is different for children under 18 and school bus drivers. They are not allowed to use cellphones at all unless it is an emergency.
Mangum says many drivers admit to texting when they get pulled over. If drivers fight the citation, it puts the state in a tough position.
“Obviously, as the Supreme Court just told us, we’re not going to get a search warrant every time someone’s been stopped using a mobile phone. That’s not a good use of the state’s limited resources,” he said.
While the number of texting cases will likely continue to increase in traffic court, proving it will continue to be a challenge.
“The problem with it was it was circumstantial, and unless you show an officer, ‘Hey, they is all my text messages within the last hour,’ it’s pretty hard to enforce,” Lynn said.
While texting does carry a fine and court costs, much like the seat belt law, drivers won't get points on their license. A bill that would have doubled the texting fine to $200 never made it out of committee this legislative session.

NC's texting while driving law

§ 20-137.4A. Unlawful use of mobile telephone for text messaging or electronic mail.

(a) Offense. - It shall be unlawful for any person to operate a vehicle on a public street or highway or public vehicular area while using a mobile telephone to:

(1) Manually enter multiple letters or text in the device as a means of communicating with another person; or

(2) Read any electronic mail or text message transmitted to the device or stored within the device, provided that this prohibition shall not apply to any name or number stored in the device nor to any caller identification information.

(a1) Motor Carrier Offense. - It shall be unlawful for any person to operate a commercial motor vehicle subject to Part 390 or 392 of Title 49 of the Code of Federal Regulations on a public street or highway or public vehicular area while using a mobile telephone or other electronic device in violation of those Parts. Nothing in this subsection shall be construed to prohibit the use of hands-free technology.

(b) Exceptions. - The provisions of this section shall not apply to:

(1) The operator of a vehicle that is lawfully parked or stopped.

(2) Any of the following while in the performance of their official duties: a law enforcement officer; a member of a fire department; or the operator of a public or private ambulance.

(3) The use of factory-installed or aftermarket global positioning systems (GPS) or wireless communications devices used to transmit or receive data as part of a digital dispatch system.

(4) The use of voice operated technology.

(c) Penalty. - A violation of this section while operating a school bus, as defined in G.S. 20-137.4(a)(4), shall be a Class 2 misdemeanor and shall be punishable by a fine of not less than one hundred dollars ($100.00). Any other violation of this section shall be an infraction and shall be punishable by a fine of one hundred dollars ($100.00) and the costs of court.

No drivers license points or insurance surcharge shall be assessed as a result of a violation of this section. Failure to comply with the provisions of this section shall not constitute negligence per se or contributory negligence per se by the operator in any action for the recovery of damages arising out of the operation, ownership, or maintenance of a vehicle. (2009-135, s. 2; 2012-78, s. 9.)

Read more at http://www.wral.com/defense-attorney-texting-while-driving-very-difficult-to-prove-/13845381/#Gk0FPuueEAoYsI2z.99