New Moped rules

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New laws on Mopeds in North Carolina.  Thank you to NC SOG for their blog post.

Laws governing the operation of mopeds have changed significantly in recent years. Mopeds now must be registered before they may be driven on state roadways, and the owner of the moped must have insurance.  An overview of the current legal requirements for moped operation is set forth below. 
First, what’s a moped?  For years, the term “moped,” has not been separately defined in the motor vehicle statutes. Instead, the term is defined in the State’s tax statutes as “[a] vehicle that has two or three wheels, no external shifting device, and a motor that does not exceed 50 cubic centimeters piston displacement and cannot propel the vehicle at a speed greater than 30 miles per hour on a level surface.” G.S. 105-164.3. Effective December 1, 2016, however, Chapter 20 will have its own definition, which will be incorporated into the tax statutes by cross reference.
New G.S. 20-4.01(27)d1 defines a moped as “[a] vehicle, other than a motor-driven bicycle or electric assisted bicycle, that has two or three wheels, no external shifting device, a motor that does not exceed 50 cubic centimeters piston displacement and cannot propel the vehicle at a speed greater than 30 miles per hour on a level surface. The motor may be powered by electricity, alternative fuel, motor fuel, or a combination of each.” S.L. 2016-90 (H 959), section 13.(a).
The registration requirement.  G.S. 20-53.4, effective July 1, 2015, requires that mopeds be registered before being driven on the streets or highways of the state. To be registered, the moped must have a manufacturer’s certificate of origin and must be designed and manufactured for use on highways or public vehicular areas.
The fee for registering a moped is the same as for registering a motorcycle: $24.  G.S. 20-87(6).
Driving an unregistered moped on a street or allowing a moped you own to be so driven is a Class 2 misdemeanor. G.S. 20-111(1). The same is true for failing to display a current registration plate on a moped. Id.
The insurance requirement.  G.S. 20-309(a) requires, as of July 1, 2016, that owners of mopeds provide proof of financial responsibility before a moped may be registered and that they maintain such a policy throughout the registration period. Legislation was proposed in 2016 to delay this effective date, but was not enacted. S 821, section 46.(a).
Moped drivers must be at least 16 years old. G.S. 20-10.1 makes it unlawful for a person under the age of 16 to operate a moped upon a street or public vehicular area. Violation of this provision is a Class 2 misdemeanor. G.S. 20-35.
Moped drivers are not required to have a driver’s license. While the North Carolina Department of Transportation has recommended that driver’s licenses be required for the operation of mopeds, the General Assembly has not acted on that recommendation.

Can you Serve Alcohol to Your Children at Home

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The answer is NO.

Take a look at the following articles.

It turns out that there are a lot of rules that responsible adults and parents can break on vacation.  I’m not just talking about bedtime rules and no-ice-cream-before-dinner rules.  I’m talking about the criminal kind—the ones that can land you in jail or at least in a district court down east on a hot Monday morning.  I’ve written about a few of these rules before.  And this recent article in the News and Observer put everyone on notice that children under 16 cannot drive golf carts.  But I’ve recently learned a new rule: You cannot have a mixed drink on the beach.
That’s right.  You may not sit your so-far-over-21-that-I-don’t-really-remember-my-younger-self on the beach on the first unofficial day of summer and enjoy a strawberry daiquiri (unless you leave the liquor out). But don’t despair. You may drink a beer or sip some wine.
Alcoholic beverages in North Carolina are regulated under Chapter 18B of the General Statutes. Alcoholic beverages include malt beverages (such as beer), wine, liquor, and mixed beverages. The general rule is that a person may only have liquor and fortified wine (wine with more than 16 percent alcohol) in places expressly permitted by statute. See G.S. 18B-301(f)(4). The rule for beer and unfortified wine (wine with 16 percent or less alcohol) is the opposite: A person who is at least 21 years old may possess beer and wine anywhere except where it is expressly prohibited. See G.S. 18B-300.  Local government lawyers might think of this as home rule for beer and wine.
Where may one lawfully drink liquor and fortified wine? 
At home. A person who is at least 21 years old may possess any amount of liquor and fortified wine at his or her home or a temporary residence, such as a hotel room.
Up to 8 liters at other locations. A person also may possess up to 8 liters of liquor and fortified wine (combined) at:

• another person’s residence with that person’s consent;
• any other property not primarily used for commercial purposes and not open to the public at the time the alcoholic beverage is possessed, if the owner or other person in charge of the property consents; and
• a restaurant, hotel, private club, community theatre, or a veterans organization with a brown-bagging permit.

At special occasions. A person may possess any amount of fortified wine or liquor for a private party, private reception, or private special occasion, at:

• Any property not primarily used for commercial purposes, which is under the person’s exclusive control and supervision, and which is not open to the public during the event; and
• The licensed premises of a restaurant, hotel, eating establishment, private club, or convention center for which the ABC Commission has issued a special occasions permit if the person is the host of that private function and has the permission of the permittee.

Just as a person may possess fortified wine and liquor at the aforementioned places, he or she also may consume such beverages at any such location. G.S. 18B-301(d).
At a place with a permit. And, of course, the consumption of fortified wine and liquor is permissible at a location with on-premises fortified wine and mixed beverage permits. G.S. 18B-1001. An on-premises fortified wine permit may be issued to a restaurant, hotel, private club, community theatre, winery, or a convention center. A mixed beverage permit may be issued to any of these types of establishments other than a winery and also may be issued to a nonprofit or political organization.
Not on the beach.  Beaches do not constitute the sort of premises for which a permit may be issued authorizing the possession and consumption of fortified wine or mixed drinks.  While the dry sand portion of the beach – generally the area above the high tide line – may be privately owned, private persons cannot exercise the exclusive control over beaches that is required to authorize the possession of fortified wine and liquor pursuant to G.S. 18B-301(c)(2). Ocean beaches in North Carolina have “from time immemorial” been open to the public for its free use and enjoyment. G.S. 77-20.  Thus, even the owners of dry sand portions of the beach lack the ability to exclude the public from access. See Nies v. Town of Emerald Isle, __ N.C. App. ___, ___, 780 S.E.2d 187, 196 (2015) (“[P]ublic right of access to dry sand beaches in North Carolina is so firmly rooted in the custom and history of North Carolina that it has become a part of the public consciousness. Native-born North Carolinians do not generally question whether the public has the right to move freely between the wet sand and dry sand portions of our ocean beaches.”).
Beer and wine.  I mentioned earlier that a person who is at least 21 years old may possess and consume beer and unfortified wine anywhere except where it is specifically prohibited. No state law prohibits a person who is at least 21 years old from possessing and consuming beer and wine on public beaches. Indeed, the town where I vacation most often, Emerald Isle, adopted an ordinance expressly stating that such possession and consumption is lawful. Emerald Isle, like many cities and towns, does prohibit the consumption of beer, wine and other alcoholic beverages on its public streets and on other public property in the town. See 18B-300(c)(1)(authorizing cities and towns to adopt such regulations).
What’s the penalty? Possession or consumption of fortified wine or liquor on unauthorized premises is a Class 1 misdemeanor. G.S. 18B-301(f)(2), -102(b). The offense is waivable, meaning that one may plead guilty to the offense in writing and pay a fine of $25 plus $203 in court costs in lieu of appearing in court. There were nearly 600 such charges last year, 9 in Carteret County and 55 in New Hanover County.
So, if you’d rather stay on the beach and out of court this summer, forget about that daiquiri and have a Bud Light or some muscadine wine instead.

When does the State get to ask for a New Trial in DWI Cases

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We know that the Defendant is entitled to a Trial De Novo from District Court in criminal matters in North Carolina.  The question is whether the State has that same right.  Below is a review of a new case on the subject.

f you decide to read yesterday’s court of appeals opinion in State v. Miller, ___ N.C. App. ___ (May 17, 2016) do yourself a favor and skip to page 9.  Not having the benefit of this advice, I got lost on page 3. At first, I thought my printer had malfunctioned, since page 3 seemed to be saying the same thing as page 2. But there’s no problem with my printer. I can’t say the same for the procedural history in this case. Tortured is not a sufficiently negative adjective to describe its path. Fortunately, things pick up half way through the opinion and an important rule emerges:  The State may obtain a de novo hearing in superior court under G.S. 20-38.7(a) without setting forth the specific findings of fact to which it objects.
So that’s the rule. Unless the senior resident superior court judge says otherwise.  You’re going to have to read the rest of this post to make sense of that.

The first nine pages. I summarized the procedural history of State v. Miller here.  Yesterday’s opinion is the court of appeals’ response to the remand from the state supreme court.
Implied consent procedures. Miller arises from litigation in an impaired driving case.  District court judges in DWI cases don’t just rule on motions to suppress and dismiss as they do in other cases. Instead, they must enter preliminary determinations, which the State may appeal to superior court. If the State disputes the findings of fact as well as the proposed legal ruling, the superior court’s review is de novo. That type of review requires that the superior court hold a new hearing on the matter and that it rule without consideration of the proceedings below. If the State does not dispute the district court’s factual findings, the superior court does not hold a new evidentiary hearing. Instead, it simply determines whether the district court’s findings support its legal conclusions.
Who gets de novo review? A central issue in the Miller litigation is whether the State must identify the specific findings of fact to which it objects in its notice of appeal in order to obtain de novo review. Yesterday’s opinion says that the governing statutes, G.S. 20-38.7 and G.S. 15A-1432, impose no such requirement. Thus, the State’s general objection to the district court’s findings in Miller and its request for a de novo hearing were sufficient to trigger that level of review.
Unless the Senior Resident says otherwise. Yesterday’s Miller opinion notes, however, that soon after the State in that case appealed the district court’s determination to superior court, the Senior Resident Superior Court Judge for the 26^th District entered an administrative order requiring that “[w]henever the State appeals from a district court preliminary determination granting a motion to suppress or dismiss as permitted by G.S. 20-38.7, the State shall specify with particularity in its written notice of appeal those findings of fact made by the district court, or portions thereof, which the State disputes in good faith.”  The administrative order states that “a broadside exception to the district court’s findings of fact is not permitted.”  It further requires that, before the superior court hearing on the State’s appeal, counsel for the defendant and the assistant district attorney confer and “make a good faith effort” to stipulate to any facts that are not in dispute.” Any resulting stipulations must be written, signed, and filed with the clerk.
The Miller court cites G.S. 7A-41.1(c) for the proposition that the senior resident superior court judge “has the authority to enter local rules and administrative orders governing practices and procedures within that Judicial District.” G.S. 7A-41.1(c) doesn’t spell out that authority, however. Instead, it states that senior resident superior court judges must discharge all of the constitutional and statutory duties placed upon a regular resident superior court judge that do not relate to a case, controversy or judicial proceeding and which do not involve the exercise of judicial power. My former colleague, Michael Crowell, set out the duties of the senior resident superior court judge in this helpful paper.  I can’t find a duty that permits adoption of enhanced notice of appeal requirements such as the one cited in Miller. Perhaps readers better versed in this field than I may be able to identify an authorizing provision.
In any event, this portion of the latest Miller opinion is dicta as the administrative rule was adopted after Miller’s appeal and thus did not apply to the State’s notice in that case.
Maybe we’ll hear more about the administrative order in a future appellate case. But please let this be the last we hear of State v. Miller.

Thank you to the NC School of Government for the review.

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.”

Can you lose your license under NC Implied Consent Law if you are on a Bike

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I always find it interesting that you can lose your license if you get drunk and choose to ride a bike home instead of driving your car.  It would seem that choosing to take a bike is a better decision.  However, under NCGS 20-16.2 (copied below), you have given implied consent to give a chemical test if you are operating any vehicle.  Under 20-4.01 (49), a bike is a vehicle.  To me this is a case where the legislature has not really thought the process through.  Shouldn't we encourage a drunk person to take a bike rather than a car?  The law does not say so.

§ 20-16.2.  Implied consent to chemical analysis; mandatory revocation of license in event of refusal; right of driver to request analysis.

(a)        Basis for Officer to Require Chemical Analysis; Notification of Rights. - Any person who drives a vehicle on a highway or public vehicular area thereby gives consent to a chemical analysis if charged with an implied-consent offense. Any law enforcement officer who has reasonable grounds to believe that the person charged has committed the implied-consent offense may obtain a chemical analysis of the person.

Before any type of chemical analysis is administered the person charged shall be taken before a chemical analyst authorized to administer a test of a person's breath or a law enforcement officer who is authorized to administer chemical analysis of the breath, who shall inform the person orally and also give the person a notice in writing that:

(1)        You have been charged with an implied-consent offense. Under the implied-consent law, you can refuse any test, but your drivers license will be revoked for one year and could be revoked for a longer period of time under certain circumstances, and an officer can compel you to be tested under other laws.

(2)        Repealed by Session Laws 2006-253, s. 15, effective December 1, 2006, and applicable to offenses committed on or after that date.

(3)        The test results, or the fact of your refusal, will be admissible in evidence at trial.

(4)        Your driving privilege will be revoked immediately for at least 30 days if you refuse any test or the test result is 0.08 or more, 0.04 or more if you were driving a commercial vehicle, or 0.01 or more if you are under the age of 21.

(5)        After you are released, you may seek your own test in addition to this test.

(6)        You may call an attorney for advice and select a witness to view the testing procedures remaining after the witness arrives, but the testing may not be delayed for these purposes longer than 30 minutes from the time you are notified of these rights. You must take the test at the end of 30 minutes even if you have not contacted an attorney or your witness has not arrived.

(a1)      Meaning of Terms. - Under this section, an "implied-consent offense" is an offense involving impaired driving, a violation of G.S. 20-141.4(a2), or an alcohol-related offense made subject to the procedures of this section. A person is "charged" with an offense if the person is arrested for it or if criminal process for the offense has been issued.

(b)        Unconscious Person May Be Tested. - If a law enforcement officer has reasonable grounds to believe that a person has committed an implied-consent offense, and the person is unconscious or otherwise in a condition that makes the person incapable of refusal, the law enforcement officer may direct the taking of a blood sample or may direct the administration of any other chemical analysis that may be effectively performed. In this instance the notification of rights set out in subsection (a) and the request required by subsection (c) are not necessary.

(c)        Request to Submit to Chemical Analysis. - A law enforcement officer or chemical analyst shall designate the type of test or tests to be given and may request the person charged to submit to the type of chemical analysis designated. If the person charged willfully refuses to submit to that chemical analysis, none may be given under the provisions of this section, but the refusal does not preclude testing under other applicable procedures of law.

(c1)      Procedure for Reporting Results and Refusal to Division. - Whenever a person refuses to submit to a chemical analysis, a person has an alcohol concentration of 0.15 or more, or a person's drivers license has an alcohol concentration restriction and the results of the chemical analysis establish a violation of the restriction, the law enforcement officer and the chemical analyst shall without unnecessary delay go before an official authorized to administer oaths and execute an affidavit(s) stating that:

(1)        The person was charged with an implied-consent offense or had an alcohol concentration restriction on the drivers license;

(2)        A law enforcement officer had reasonable grounds to believe that the person had committed an implied-consent offense or violated the alcohol concentration restriction on the drivers license;

(3)        Whether the implied-consent offense charged involved death or critical injury to another person, if the person willfully refused to submit to chemical analysis;

(4)        The person was notified of the rights in subsection (a); and

(5)        The results of any tests given or that the person willfully refused to submit to a chemical analysis.

If the person's drivers license has an alcohol concentration restriction, pursuant to G.S. 20-19(c3), and an officer has reasonable grounds to believe the person has violated a provision of that restriction other than violation of the alcohol concentration level, the officer and chemical analyst shall complete the applicable sections of the affidavit and indicate the restriction which was violated. The officer shall immediately mail the affidavit(s) to the Division. If the officer is also the chemical analyst who has notified the person of the rights under subsection (a), the officer may perform alone the duties of this subsection.

(d)       Consequences of Refusal; Right to Hearing before Division; Issues. - Upon receipt of a properly executed affidavit required by subsection (c1), the Division shall expeditiously notify the person charged that the person's license to drive is revoked for 12 months, effective on the tenth calendar day after the mailing of the revocation order unless, before the effective date of the order, the person requests in writing a hearing before the Division. Except for the time referred to in G.S. 20-16.5, if the person shows to the satisfaction of the Division that his or her license was surrendered to the court, and remained in the court's possession, then the Division shall credit the amount of time for which the license was in the possession of the court against the 12-month revocation period required by this subsection. If the person properly requests a hearing, the person retains his or her license, unless it is revoked under some other provision of law, until the hearing is held, the person withdraws the request, or the person fails to appear at a scheduled hearing. The hearing officer may subpoena any witnesses or documents that the hearing officer deems necessary. The person may request the hearing officer to subpoena the charging officer, the chemical analyst, or both to appear at the hearing if the person makes the request in writing at least three days before the hearing. The person may subpoena any other witness whom the person deems necessary, and the provisions of G.S. 1A-1, Rule 45, apply to the issuance and service of all subpoenas issued under the authority of this section. The hearing officer is authorized to administer oaths to witnesses appearing at the hearing. The hearing shall be conducted in the county where the charge was brought, and shall be limited to consideration of whether:

(1)        The person was charged with an implied-consent offense or the driver had an alcohol concentration restriction on the drivers license pursuant to G.S. 20-19;

(2)        A law enforcement officer had reasonable grounds to believe that the person had committed an implied-consent offense or violated the alcohol concentration restriction on the drivers license;

(3)        The implied-consent offense charged involved death or critical injury to another person, if this allegation is in the affidavit;

(4)        The person was notified of the person's rights as required by subsection (a); and

(5)        The person willfully refused to submit to a chemical analysis.

If the Division finds that the conditions specified in this subsection are met, it shall order the revocation sustained. If the Division finds that any of the conditions (1), (2), (4), or (5) is not met, it shall rescind the revocation. If it finds that condition (3) is alleged in the affidavit but is not met, it shall order the revocation sustained if that is the only condition that is not met; in this instance subsection (d1) does not apply to that revocation. If the revocation is sustained, the person shall surrender his or her license immediately upon notification by the Division.

(d1)     Consequences of Refusal in Case Involving Death or Critical Injury. - If the refusal occurred in a case involving death or critical injury to another person, no limited driving privilege may be issued. The 12-month revocation begins only after all other periods of revocation have terminated unless the person's license is revoked under G.S. 20-28, 20-28.1, 20-19(d), or 20-19(e). If the revocation is based on those sections, the revocation under this subsection begins at the time and in the manner specified in subsection (d) for revocations under this section. However, the person's eligibility for a hearing to determine if the revocation under those sections should be rescinded is postponed for one year from the date on which the person would otherwise have been eligible for the hearing. If the person's driver's license is again revoked while the 12-month revocation under this subsection is in effect, that revocation, whether imposed by a court or by the Division, may only take effect after the period of revocation under this subsection has terminated.

(e)        Right to Hearing in Superior Court. - If the revocation for a willful refusal is sustained after the hearing, the person whose license has been revoked has the right to file a petition in the superior court district or set of districts defined in G.S. 7A-41.1, where the charges were made, within 30 days thereafter for a hearing on the record. The superior court review shall be limited to whether there is sufficient evidence in the record to support the Commissioner's findings of fact and whether the conclusions of law are supported by the findings of fact and whether the Commissioner committed an error of law in revoking the license.

(e1)      Limited Driving Privilege after Six Months in Certain Instances. - A person whose driver's license has been revoked under this section may apply for and a judge authorized to do so by this subsection may issue a limited driving privilege if:

(1)        At the time of the refusal the person held either a valid drivers license or a license that had been expired for less than one year;

(2)        At the time of the refusal, the person had not within the preceding seven years been convicted of an offense involving impaired driving;

(3)        At the time of the refusal, the person had not in the preceding seven years willfully refused to submit to a chemical analysis under this section;

(4)        The implied consent offense charged did not involve death or critical injury to another person;

(5)        The underlying charge for which the defendant was requested to submit to a chemical analysis has been finally disposed of:

a.         Other than by conviction; or

b.         By a conviction of impaired driving under G.S. 20-138.1, at a punishment level authorizing issuance of a limited driving privilege under G.S. 20-179.3(b), and the defendant has complied with at least one of the mandatory conditions of probation listed for the punishment level under which the defendant was sentenced;

(6)        Subsequent to the refusal the person has had no unresolved pending charges for or additional convictions of an offense involving impaired driving;

(7)        The person's license has been revoked for at least six months for the refusal; and

(8)        The person has obtained a substance abuse assessment from a mental health facility and successfully completed any recommended training or treatment program.

Except as modified in this subsection, the provisions of G.S. 20-179.3 relating to the procedure for application and conduct of the hearing and the restrictions required or authorized to be included in the limited driving privilege apply to applications under this subsection. If the case was finally disposed of in the district court, the hearing shall be conducted in the district court district as defined in G.S. 7A-133 in which the refusal occurred by a district court judge. If the case was finally disposed of in the superior court, the hearing shall be conducted in the superior court district or set of districts as defined in G.S. 7A-41.1 in which the refusal occurred by a superior court judge. A limited driving privilege issued under this section authorizes a person to drive if the person's license is revoked solely under this section or solely under this section and G.S. 20-17(2). If the person's license is revoked for any other reason, the limited driving privilege is invalid.

(f)        Notice to Other States as to Nonresidents. - When it has been finally determined under the procedures of this section that a nonresident's privilege to drive a motor vehicle in this State has been revoked, the Division shall give information in writing of the action taken to the motor vehicle administrator of the state of the person's residence and of any state in which the person has a license.

(g)        Repealed by Session Laws 1973, c. 914.

(h)        Repealed by Session Laws 1979, c. 423, s. 2.

(i)         Right to Chemical Analysis before Arrest or Charge. - A person stopped or questioned by a law enforcement officer who is investigating whether the person may have committed an implied consent offense may request the administration of a chemical analysis before any arrest or other charge is made for the offense. Upon this request, the officer shall afford the person the opportunity to have a chemical analysis of his or her breath, if available, in accordance with the procedures required by G.S. 20-139.1(b). The request constitutes the person's consent to be transported by the law enforcement officer to the place where the chemical analysis is to be administered. Before the chemical analysis is made, the person shall confirm the request in writing and shall be notified:

(1)        That the test results will be admissible in evidence and may be used against you in any implied consent offense that may arise;

(2)        Your driving privilege will be revoked immediately for at least 30 days if the test result is 0.08 or more, 0.04 or more if you were driving a commercial vehicle, or 0.01 or more if you are under the age of 21.

(3)        That if you fail to comply fully with the test procedures, the officer may charge you with any offense for which the officer has probable cause, and if you are charged with an implied consent offense, your refusal to submit to the testing required as a result of that charge would result in revocation of your driving privilege. The results of the chemical analysis are admissible in evidence in any proceeding in which they are relevant.  (1963, c. 966, s. 1; 1965, c. 1165; 1969, c. 1074, s. 1; 1971, c. 619, ss. 3-6; 1973, c. 206, ss. 1, 2; cc. 824, 914; 1975, c. 716, s. 5; 1977, c. 812; 1979, c. 423, s. 2; 1979, 2nd Sess., c. 1160; 1981, c. 412, s. 4; c. 747, s. 66; 1983, c. 87; c. 435, s. 11; 1983 (Reg. Sess., 1984), c. 1101, ss. 5-8; 1987, c. 797, s. 3; 1987 (Reg. Sess., 1988), c. 1037, ss. 76, 77; c. 1112; 1989, c. 771, ss. 13, 14, 18; 1991, c. 689, s. 233.1(c); 1993, c. 285, ss. 3, 4; 1995, c. 163, s. 1; 1997-379, ss. 3.1-3.3; 1998-182, s. 28; 1999-406, ss. 1, 10; 2000-155, s. 5; 2006-253, s. 15; 2007-493, ss. 25, 27; 2011-119, s. 1.)

Driving While Talking CDL

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Not many drivers know that while drivers of cars can use their phones while driving, truck drivers cannot.  Here is a great article by Shea Denning of the NC School of Government on the subject.

There is a ban on hand-held mobile phone use by drivers in North Carolina. And there’s a good chance you’ve never heard of it.
That’s because the ban only applies to drivers of commercial motor vehicles—not drivers of private passenger vehicles.
The federal government banned the use of hand-held mobile phones by the drivers of commercial motor vehicles in 2011. The next year, the North Carolina legislature codified the ban in G.S. 20-137.4A(a1). And while the federal rule applies only to commercial motor vehicles operated in interstate commerce, North Carolina’s administrative rules extend the prohibition to for-hire motor carriers, for-hire motor carrier vehicles, private motor carriers and private motor carrier vehicles operated entirely within North Carolina if the vehicle is: 

(1) a vehicle having a gross vehicle weight rating (GVWR), gross combination weight rating (GCWR), gross vehicle weight (GVW), gross combination weight (GCW) of 26,001 pounds or more, whichever is greater;
(2) designed or used to transport 16 or more passengers, including the driver; or
(3) used in transporting a hazardous material in a quantity requiring placarding pursuant to 49 C.F.R. Parts 170 through 185.

14B N.C.A.C. 07C .0101. Neither the federal nor the North Carolina rules barring hand-held mobile phone use apply to commercial motor vehicles operated by federal, state or local governments.
What exactly are drivers of CMVs prohibited from doing? Drivers of qualifying commercial motor vehicles may not “use a hand-held mobile telephone while driving.” 49 C.F.R. § 392.82. Driving is defined broadly as “operating a commercial motor vehicle on a highway, including while temporarily stationary because of traffic, a traffic control device, or other momentary delays.” Driving does not include “operating a commercial motor vehicle when the driver has moved the vehicle to the side of, or off, a highway and has halted in a location where the vehicle can safely remain stationary.” An exception applies to allow the driver of a commercial motor vehicle to use a hand-held mobile telephone “when necessary to communicate with law enforcement officials or other emergency services.”
An earlier-enacted ban prohibits such drivers from texting while driving. 49 C.F.R. § 392.80.
A fact sheet from the Federal Motor Carrier Safety Administration (FMCSA) says it is easy to comply with the rules. It summarizes the rules as: No REACHING, No HOLDING, No DIALING, No TEXTING, No READING.
What about other drivers? All drivers in North Carolina are prohibited from driving on a street or public vehicular area while using a mobile telephone to: (1) manually enter multiple letters or text as a means of communicating with another person; or (2) read any electronic mail or text message transmitted to or stored within the device. G.S. 20-137.4A(a). This prohibition does not apply to the operator of a vehicle that is “lawfully parked or stopped.” Thus, it presumably is permissible to text and read emails and texts while temporarily stopped at a traffic light.
Drivers of private passenger vehicles who are 18 or older may lawfully hold mobile phones in their hands, dial numbers, and talk while driving in North Carolina.
Drivers who are under 18 are prohibited from operating a motor vehicle on a street or public vehicular area in North Carolina while using a mobile phone while the vehicle is in motion. G.S. 20-137.3(d). Exceptions apply to allow minors to use a mobile phone to communicate with a parent, legal guardian, spouse, or emergency personnel. 
Reason for the federal ban. The federal rule was adopted as part of the U.S. Transportation Department’s effort to end distracted driving. The Federal Motor Carrier Safety Administration (FMCSA) said its research showed that using a hand-held cell phone while driving required riskier steps than hand-free mobile phone use such as searching and reaching for the phone. According to the FMCSA, commercial drivers reaching for an object such as a cell phone are three times more likely to be involved in a crash or “other safety critical event.” Dialing a hand-held phone made it six times more likely that a commercial driver would be involved in such an event.
Could the hand-held ban be extended? A few years ago, the National Transportation Safety Board called for a complete ban on the use of cell phones while driving, citing an “epidemic” of distracted driving. Given the ubiquitous use of mobile phones by drivers, I’m doubtful that state legislators, who have the authority to order such a ban, have an appetite for such a sweeping prohibition. The ready availability of so much hands-free technology might, however, render broader application of the hands-free requirement more appealing.
North Carolina cities may not enact their own rules. The Town of Chapel Hill enacted an ordinance in 2012 prohibiting drivers from using a mobile telephone while operating a motor vehicle in motion on a street or public vehicular area within the town. The operator of a local towing company challenged the lawfulness of the ordinance on the basis that state law preempts municipal restrictions on mobile phone use while driving. The North Carolina Supreme Court agreed. In King v. Town of Chapel Hill, 367 N.C. 400, the court determined that the General Assembly’s enactment of various statutory provisions to reduce the dangers associated with mobile phone use while driving indicated its “’intent to provide a complete and integrated regulatory scheme to the exclusion of local regulation.’” Id. at 412 (citing G.S. 160A-174(b)(5)).

License Plates

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Nice article on the issue of the Confederate License Plate in NC.  Thank you to Shea Denning.

Following the shooting deaths of nine black worshippers in June at a historically significant Charleston church and South Carolina’s subsequent removal of the Confederate flag from the grounds of the State House, some have called upon North Carolina officials to stop issuing specialty license plates featuring the Confederate flag. N.C. Governor Pat McCrory has said that the General Assembly must pass legislation to halt issuance of the plates. One veteran legislator was quoted in this News and Observer story as saying that he never would have voted to authorize such a special plate and never recalls seeing such legislation. A spokesperson for another legislator was quoted as saying that the Governor was empowered to end issuance of the plates. Who’s right?
As it turns out, the answer is not obvious.
Where’s the statute? There’s a reason legislators might not remember authorizing license plates featuring the Confederate flag. They never specifically did so. Indeed, G.S. 20-79.4(b) lists 250 types of special registration plates that DMV “shall issue.” None of these plates feature the Confederate flag.
So why were Confederate flag plates ever issued? The General Assembly authorized issuance of license plates identifying civic clubs and displaying the emblem of the identified club in a provision currently codified as G.S. 20-79.4(b)(42). That statutory subdivision specifies that license plates are “[i]ssuable to a member of a nationally recognized civic organization whose member clubs in the State are exempt from State corporate income tax.” It lists, as examples of these types of clubs, Jaycees, Kiwanis, Optimist, Rotary, Ruritan, and Shrine. The statute requires the plate to “bear a word or phrase identifying the civic club and the emblem of the civic club,” and provides that DMV may not issue a civic club plate unless it receives at least 300 applications for that plate.
After receiving tax-exempt status from the North Carolina Department of Revenue, the North Carolina chapter of the Sons of Confederate Veterans (SCV) applied to DMV for issuance of a license plate bearing its emblem:  the Confederate flag. DMV refused to issue the plates.
SCV sued in superior court and won. The trial court ordered DMV to issue SCV registration plates once it received the requisite 300 applications. DMV appealed, and a majority of the court of appeals affirmed in North Carolina Division of Sons of Confederate Veterans v. Faulkner, 131 N.C. App. 775 (1998). The appellate court determined that SCV was of a similar character as the qualifying civic clubs listed in the “civic club” subdivision of G.S. 20-79.4(b) and thus was a “nationally recognized civic organization” within the meaning of that statute. Thus, the court determined that SCV qualified for special registration plates. The court noted that “[w]hether the display of the confederate flag on state-issued license plates represents sound public policy is not an issue presented to the Court in this case. That is an issue for our General Assembly.”
Significantly, however, the court did not rule in favor of SCV on constitutional grounds. While it noted that “allowing some organizations which fall within section [G.S. 20-79.4(b)(42)’s] criteria to obtain personalized plates while disallowing others equally within the criteria could implicate the First Amendment’s restriction against content-based restraints on free speech,” the court avoided the need for constitutional analysis when it determined that the statute required issuance of the plates.
Judge (and subsequent Justice) Timmons-Goodson dissented on the basis that SCV did not satisfy the statutory definition of civic club. DMV evidently declined to exercise its right to appeal the divided decision to the state supreme court.
What happened next?  DMV followed the court’s directive. The News and Observer reports that more than 2,000 such plates have been issued.
Wasn’t there just a U.S. Supreme Court case involving this very issue? Yes. The United States Supreme Court held last month in a 5-4 decision that the First Amendment did not require the State of Texas to issue license plates featuring the Sons of Confederate Veterans emblem. Walker v. Texas Div., Sons of Confederate Veterans, Inc., 135 S. Ct. 2239 (2015). The high court determined that specialized license plates were a form of public speech by the State government rather than private speech by the organizations whose logos were featured on license plates. Thus, the majority concluded that Texas could “choose how to present itself and its constituency.”
Had the North Carolina court of appeals based its decision that DMV was required to issue SCV license plates on a determination that to do otherwise would constitute viewpoint discrimination in violation of the First Amendment, the United States Supreme Court’s determination in Sons of Confederate Veterans would overrule that determination. But the North Carolina Court of Appeals did not rest its holding on that ground. Instead, as noted above, it determined that the statutory provision directing DMV to issue special license plates for civic clubs that met the statutory definition required issuance of the Confederate flag plates.
So who is right?  If G.S. 20-79.4(b)(42) afforded DMV discretion in determining which civic organizations were entitled to special plates, there would be no question that the governor could direct DMV, an agency under his control, to stop issuing Confederate flag plates. But the court of appeals in Sons of Confederate Veterans did not construe G.S. 20-79.4(b) as allowing DMV to select which civic groups were eligible for special plates. That’s presumably why the Governor has concluded that he cannot tell DMV to stop issuing the plates unless the General Assembly amends the statute.
On the other hand, considering the history behind the issuance of these plates, it isn’t hard to understand why some legislators disagree.The legislature never approved the confederate plates, DMV issued them only after the state court of appeals said it had to, and the U.S. Supreme Court just held, in a similar case, that Texas was not required to issue Confederate flag plates. Taking a broad view of the matter and discounting the specific reasoning of the state court opinion, one might conclude that the Governor could act on his own to stop DMV from handing out Confederate plates.